Orissa High Court
Tapu @ Prasanta Das vs State Of Odisha & Others ......... Opp. ... on 9 February, 2023
Bench: S. Talapatra, Savitri Ratho
AFR
THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No.100 of 2022
In the matter of an application under Article 226 and 227 of the
Constitution of India.
Tapu @ Prasanta Das ....... Petitioner
-Versus-
State of Odisha & Others ......... Opp. Parties
___________________________________________________________
For Petitioner : Mr. Manoranjan Das, Advocate.
For Opposite Parties : Mr. J. Katikia, AGA.
___________________________________________________________
CORAM:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
THE HONOURABLE SHRI JUSTICE SAVITRI RATHO
JUDGMENT
th 9 February, 2023 S. Talapatra, J. By means of this writ petition, the petitioner has challenged the Order No.01/C.P Judl (NSA) dated 14.03.2022 (Annexure-1 to the writ petition) passed by the Commissioner of Police Bhubaneswar-Cuttack, the detaining authority, and urged to set aside the consequential proceedings and orders as illegal and barred. The detention of the petitioner, hereinabove referred to as the detenu, under 2 the National Security Act, (in short NSA) has been given effect to, in pursuance to the said order.
2. The facts, germane to the challenge, are introduced at the outset briefly. The detenu was in custody in the circle jail, Choudwar in connection with Kandarpur PS Case No.181 of 2021 for commission of offences under Sections 386/387/120/34 IPC [corresponding to GR Case No.1742/2021 pending in the court of J.M.F.C. (R) Cuttack], the said order of detention on 14.03.2022 was served on the detenue in the district jail, Sundargarh declaring him to be detained in exercise of the powers conferred under Section 3(2) of NSA. On 17.03.2022, by the Communication No.165/CP-Judl. dated 17.03.2022 (Annexure-2 to the writ petition) the detaining authority served the grounds of detention. It has been stated in the said communication dated 17.03.2022 that being satisfied with the letter submitted by the Opposite Party No.4 dated 14.03.2022, regarding the past activities of the petitioner and the documents as relied, the Commissioner of Police, Bhubaneswar- Cuttack was satisfied that the detention of the petitioner/detenu is required in order to prevent him from acting in any manner prejudicial to the maintenance of public order and tranquility. The communication containing the grounds of the detention is available at Annexure-2 of the writ petition.
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3. On scrutiny, it appears that the Commissioner of Police, Bhubaneswar-Cuttack has also made reference that he had received a full report detailing the petitioner's past activities along with various documents which he had contended as the ground of detention, as communicated on 17.03.2022. The detaining authority has been subjectively satisfied that the petitioner's detention is required to prevent him from acting in any manner prejudicial to the maintenance of Public Order and Tranquility, in Para C of the grounds of detention, it has been noted that the Deputy Commissioner of Police, Cuttack UPD has reported that the petitioner's criminal act and anti-social activities have become a challenge and threat for maintenance of public order in Cuttack city. According to the Deputy Commissioner of Police, the petitioner is a " a dreaded criminal and threat as well for maintenance of public order in Cuttack city" and he is involved in a series of cases of dacoity, murder, assault, criminal intimidation, attempt to murder, extortion, robbery, bombing, tender fixing and smuggling of illegal fire arms/ammunition.
4. It has been also noted that the petitioner had indulged in attacking the innocent citizens publicly and damaged both public and private properties. In view of such nature of activities, the peace loving people is scared of reaching out to police. The petitioner's criminal activities are disrupting public order and that cannot be prevented by 4 the normal legal processes. The Deputy Commissioner of Police, Cuttack apprehended that on the release of the petitioner from judicial custody, the petitioner will indulge in the similar activities as stated in his Report. Based on the antecedents of the petitioner, which are prejudicial to the maintenance of Public Order in the Cuttack City and other districts, the order of detention under NSA has been issued. For providing a summary of criminal activities of the petitioner/the detenu, specific references have been made to: (1) Jagatsinghpur PS Case No.253 of 2016 under Section 395/120(B)IPC/25/27 Arms Act, (2) Badachana (Jajpur) PS Case No.258 of 2006 under Section 395/120(B)/25 Arms Act, (3) Nilagiri (Balasore) PS Case No.131 of 2009 under Section 302/34, IPC/25/27 Arms Act, (4) Kishorenagar (Cuttack Rural) PS Case No.68 of 2012 under Section 9(B), I.E. Act turned to under Section 3 E.S. Act/120(B)/34 IPC, (5) Nuagaon (Jagatsinghpur) PS Case No.36/2012 under Section 294/323/506/379/34 IPC/ read with 25/27 Arms Act, (6) Kandarpur (Cuttack UPD) PS Case No.09 of 2012 under Section 9(B), I.E Act (7) Jagatsinghpur PS Case No.22 of 2013 under Section 395 IPC read with 25/27 Arms Act, (8) Biridi (Jagatsinghpur) PS Case No.85 of 2014 under Section 307/34 IPC read with Section 25/27 Arms Act, (9) Biridi (Jagatsinghpur) PS Case No.86 of 2014 under Section 25(1B) (a), Arms Act, (10) Jagatsinghpur PS Case No.375/2015 under Section 5 294/506/353 IPC, (11) Balikuda PS Case No.231 of 2015 under Section 387/506/120-B/34 IPC, (12) Kandarpur (Cuttack UPD) PS Case No.03 of 2016 under Section 294/385/506/34 IPC, (13) Rambha (Ganjam) PS Case No.34 of 2018 under Section 395 IPC read with Section 25/27 Arms Act, (14) Sadar (Cuttack UPD) PS Case No.80 of 2018 under Section 392/34 IPC, (15) Sadar (Cuttack UPD) PS Case No.100 of 2018 under Section 341/326/307/324/34 IPC read with Section 25/27 Arms Act, (16) Sadar (Cuttack UPD) PS Case No.481 of 2018 under Section 25 of Arms Act, (17) Cuttack Sadar PS Case No.183 of 2021 under Section 451/506 IPC read with Section 25 Arms Act, (18) Choudwar PS Case No.281 of 2021 under Section 386/387/506/34 IPC, (19) Kandarpur PS Case No.181 of 2021 under Section 386/387/120(B)/34 IPC, (20) Sadar (Cuttack UPD) PS SDE/GD No.21 of 2020, (21) Kandarpur (Cuttack UPD) SDE/GD No.31 of 2020, (22) Kandarpur (Cuttack UPD) SDE/GD No.30 of 2020, (23) Kandarpur (Cuttack UPD) SDE/GD No.18 of 2021, (24) Kandarpur (Cuttack UPD) SDE/GD No.17 of 2021 and (25) Kandarpur (Cuttack UPD) SDE/GD No.16 of 2022.
5. Having referred to the occurrences as reported to the police, the Deputy Commissioner of Police, Cuttack has observed in the said grounds of detention as follows:
"The above series of verified incidents clearly 6 of village Nimeisapur, PS-Kandarpur, Dist-Cuttack is a threat to public order in the jurisdiction of districts of Cuttack, Jagatsinghpur, Balasore, Puri, Ganjam and especially a matter of serious concern in Sadar, Madhupatna and Kandarpur PS areas of Cuttack Urban Police district. By creating terror, he is throwing normal rhythm of life out of gear. He has now established such notoriety that people are scared to report against him to the law enforcement agencies. His modus operandi is to commit heinous crimes in public and create terror, establish his dreaded presence and extort money so that he can rule the street as a done. It is also alarming to see how often he has been associated with crimes involving guns and explosives, many in full open public view and broad-day light. He operates in gang and also creates more dreaded criminals like himself in the society."
6. Even for the suspicious activities inside the Circle jail, Choudwar the petitioner was sent to the District Jail, Sundargarh on 06.03.2022 and he is now in the district jail, Sundargarh. The petitioner has applied for bail in all the above cases which were not disposed as yet. As such, it has been estimated that his release as contemplated would allow him to renew his criminal activities of unleashing terror, extortion of money and disrupting public order. It may be noted that in the GDEs against the petitioner/the detenu some allegation has been made. On the date of filing of the grounds of detention against those GDEs, Specific police cases were not registered. But in Jagatsinhpur PS Case No.253 of 2006, the petitioner has been acquitted by the Addl. 7 District Judge, Jagatsinghpur on 22.12.2009. In Kishorenagar (Cuttack Rural) PS Case No.68 of 2012, as referred above, the petitioner has been acquitted on 10.12.2013 by the 1st Addl. District Judge, Cuttack. Sadar (Cuttack UPD) Case No.481 of 2018 under Section 25 of the Arms Act is still pending awaiting the sanction order. In all other cases, the police has filed the charge sheet against the petitioner and those are pending for trial.
7. It may be noted at this stage that by the order dated 14.03.2022, the petitioner was detained under Section 3(2) of NSA. The grounds of detention was communicated after 3 days after the communication or of the order of detention i.e.17.03.2022 and the order of detention dated 14.03.2022 has been approved by the State Government on 29.03.2022. It appears that the grounds of detention in support of the order of detention dated 14.03.2022 have been formed on the report of the Commissioner of Police Bhubaneswar-Cuttack which had taken note of the report of the DCP Cuttack on the activities of the petitioner/the detenu. The order of detention and documents in support of the grounds of detention were sent to the NSA Advisory Board. In the initial order of detention dated 14.03.2022, there is no specific period of detention. The Government of Odisha by their order dated 26.04.2022 approved the said detention order and had directed to keep 8 the petitioner under detention in the District Jail, Sundargarh for 3 months from the date of his detention or until further orders.
8. On the request of the Commissioner of Police, the detaining authority, the period of detention was extended to 6 months from the date of the detention in exercise of power as conferred by Section 12(1) read with Sections 3(3) and 13 of NSA. The Government approved the order dated 10.06.2022 (Annexure-5 to the writ petition). The petitioner/the detenu has challenged the said order of detention on the ground that there was infraction in compliance of the provisions of NSA as there is no threat to the national security, defence, maintenance of public order and maintenance of supplies and services essential to the community by the detenue. As such, all the consequential proceedings are also bad in law. Having referred to Section 3(1) and Section 3(2) of NSA, it has been contended that the explanation provided below Section 3(2) of the NSA clearly provides that "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" does not include "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to the Sub section (1) of Section 3 of the Prevention of Black Marketing and Maintenance Act, 1980 and hence, no order of detention shall be made unless the grounds provided in the NSA are made out.
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9. It has been asserted by the petitioner in the petition that he had never threatened the national security. From the catalogue of the cases as provided in the grounds of detention it will appear that all those cases were under trial or under investigation. Not a single case has been referred where the petitioner was convicted. In reply to the averments of the petitioner, the detaining authority P.W.3 has provided the sequence of events in the following manner:
"(a) 14.03.2022 - Detention order was passed.
(b) 15.03.2022 - The detention order was communicated to the Home Department thorough E-Mail.
(c) 17.03.2022 - Grounds of detention was served on the petitioner.
(d) 25.03.2022 - State Government made a reference to the Advisory Board.
(e) 28.03.2022 - The petitioner submitted his representation to the Advisory Board.
(f) 18.04.2022 - Representation of the detenue (the petitioner) was rejected by the Government."
10. It has been asserted by the Opposite Party No.3 in his counter affidavit that the court may examine whether the procedure has been observed or not. According to the Opposite Party No.3, the grounds of detention had been explained to the petitioner. It has been contended that the release of the petitioner will definitely cause threat to the public order. In order to maintain the public order in Cuttack City the preventive order was passed on due diligence. It has been also asserted that the Government of Odisha has approved the detention 10 order. The Opposite Party No.3 had revisited the cases as aforenoted for making reference to the pattern of activities the detenu/the petitioner had indulged in. It has been asserted that at the time of making the order for extension of detention, all the factors were carefully reviewed again by the State Government. The detention of the petitioner has prevented further disruption of public order and the confidence of the public in the administration in Cuttack City has been restored. The police is now maintaining the public order efficiently. It is pertinent to note that the representation of the petitioner as submitted through the Superintendent, District Jail, Sundargarh on 28.03.2022 (Annexure-D3 to the counter affidavit filed by the Opposite Party No.5) was dismissed by the Government and the said decision was communicated on 18.04.2022 (Annexure-E3 to the counter affidavit filed by the Opposite Party No.3). The Central Government did not accede to the request of the petitioner/the detenu for interfering with the detention order dated 14.03.2022. One additional affidavit has been filed by the wife of the petitioner on 07.09.2022 by stating that even though the detention/order was passed by the Opposite Party No.3 on 14.03.2022, the petitioner was produced before the NSA Advisory Board on 12.04.2022 after lapse of 3 weeks-which violates the mandatory provision of Section 20 of NSA which clearly provides as follows:
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"Reference to Advisory Boards.--Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-
section (3) of section 3, also the report by such officer under sub-section (4) of that section."
11. In this regard, we may refer to a decision of the Apex Court in State of U.P. V. Mahant Singh: AIR 1986 SC207 where the apex court had observed that Section 10 of NSA is mandatory and non- compliance with or infraction thereof would certainly be fatal. Section 10 provides that the State Government has the obligation to cause the papers relating to detention placed, alongwith the representation, if made, within three weeks from the date of detention before the Advisory Board.
12. In support of the aforenoted contention, in the affidavit filed by Sarojini Das, the wife of the detenu, the communication dated 06.04.2022 has been referred. By the said communication, the 12 Commissioner of Police, Bhubaneswar-Cuttack, the detaining authority has directed the Deputy Commissioner of Police, Cuttack, UPD to make the necessary escort arrangement for production of the petitioner before the NSA Advisory Board on 12.04.2022. According to the petitioner, it is apparent that he was only produced before the NSA Advisory Board on 12.04.2022. Meanwhile, the State Government had rejected the representation of the petitioner dated 28.03.2022, as would be evident from the communication dated 18.04.2022. By the representation, the petitioner has seriously questioned the detention for being in defiance of provisions of NSA. When the detention order was passed, the petitioner was in the judicial custody. His detention itself shows that the detaining authority did not consider the fact of petitioner's detention that is why the further detention had been asked for. According to the petitioner, the detaining authority had, without any sustainable reason exercised the jurisdiction on contemplation which is more imaginative, than subjective. The subjective satisfaction means an interference which is grounded on facts but its analysis may differ from one individual to other. But according to the petitioner, this ground of disruption of the public order by the petitioner did not even exist at the time of passing the said order of detention on 14.03.2022. According to the petitioner, the police had been framing him in several cases, but he had been securing acquittal. He got bail in some of the cases and in other cases he 13 is trying to obtain bail. Hence, as in a lawful manner the petitioner detention cannot be secured by the State, they have arbitrarily used the provision of NSA to detain the petitioner/the detenu. The materials relied according to the petitioner are grossly inadequate.
13. The petitioner/the detenu has given his views in detail in regard to the cases which are catalogued in the grounds of detention. Those materials are not quoted for sake of brevity, as those have been recorded. It has been asserted further that no detention order can be passed to prevent a person from getting released on bail as that is not the object of NSA. Reference has been made to a case of this court in Rabi @ Rabindra Behera @ Chickan Rabi -Vrs- State of Orissa and Others: 2003 (11) OLR (NOC) 74.
14. The petitioner/the detenu has asserted that "the detenue has been wrongly estimated as an antisocial and habitual criminal. No doubt the detenu has got some political affiliation and a social activist in the locality in the habit of protesting the high-handness of the persons of ruling party as well as the police against the downtrodden people of his locality, which has caused the irk of the police of that area who have become a tool in the [hand] of the political leader. The detenu has been languishing in jail custody since 09.04.2018 as the under trial and thereafter by the order of detention also."
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15. It appears from the additional affidavit filed by the petitioner's wife on 11.11.2022 that the petitioner was released on 13.09.2022 as he had completed six months from the date of detention vide the order dated 14.03.2022. The petitioner was released from the judicial custody on 13.09.2022 at about 6 a.m. The Superintendent of Circle Jail, Sundargarh contacted him over phone and requested him to return to jail. Accordingly, the petitioner reached the jail on 14.09.2022. In this context, the question that has been raised is that whether the order of extension being purportedly not passed before expiry of the earlier order, is valid or whether by operation of the said order, the detenu can be detained again. In this regard, the Superintendent of District Jail, Sundargarh has, in terms of our direction dated 02.12.2022, filed an affidavit and stated that by the order dated 14.03.2022, the petitioner was detained under NSA until further order. Thereafter, by the order dated 26.04.2022, the petitioner's detention was confirmed and it was directed that the detention will be continued for 3 months from the date of his detention under NSA meaning from 15.03.2022, the date when the copy of the order was served on the petitioner. Latter on by the order dated 10.06.2022, the detention was extended for 6 months in total from the date of commencement of detention from i.e. on 15.03.2022. It has been admitted by the Superintendent, Sundargarh District Jail that he had released the detenue on 13.09.2022 on expiry of 15 6 months' detention from the date of first detention and he had communicated the same to the O.S.D.-cum-Special Secretary to Government, Home Department, Bhubaneswar, also to Superintendent of Police, Sundargarh, Superintendent of Police, Rourkela, Commissioner of Police, Bhubaneswar-Cuttack Commissionerate, Bhubaneswar, Director General & Inspector General of Police, Odisha, Cuttack, Revenue Divisional Commissioner (C.D), Cuttack and Director General of Prisons, Odisha, Bhubaneswar vide his letter No.1906 dated 13.09.2022 as he did not receive any order for extension of detention. According to him on 13.09.2022 at about 2.30 PM another order was received by him from the O.S.D -Cum- Special Secretary to the Government, Home Department vide the Memorandum No.820/C dated 13.09.2022. The same order was also received from the Commissioner of Police, Bhubaneswar-Cuttack Commissionerate (the detaining authority) on the same day i.e. 13.09.2022 at about 6 p.m, regarding further extension of detention period of the detenu for further 3 months. The Superintendent of Sundargarh District Jail contacted the detenu- petitioner to return to the jail custody. On 14.09.2022, the order of extending the term of detention was served on the petitioner. The Superintendent of District Jail, Sundargarh in Para 9 of his affidavit has stated as follows:
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"That it is submitted that the date of release of the detenue-petitioner was calculated and arrived to 13.09.2022 instead of 14.09.2022 (as the first detention order was served on 15.03.2022) which was due to over-sight and pressure of official works, though the detenu was inadvertently released only day before the actual date and brought to back to Jail custody on the same night. In view of the above irregularities, an enquiry was conducted by the Deputy Inspector General of Prisons, Sambalpur Range, Sambalpur as per direction of the Government in Home Department vide letter No.831 dated 15.09.2022 and Director General of Prisons, Odisha, Bhubaneswar and after conclusion of the said enquiry, the deponent has been warned/cautioned by the Director General of Prisons & D.C.S., Odisha not to repeat such type of irregularities henceforth."
16. Mr. M. Das, learned counsel appearing for the petitioner has submitted that there was clear infraction of the Section 3(4) of NSA, which provides that where any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government; 17 provided further that where under section 8, the grounds of detention are communicated by the officer making the order after five days but not later than 10 days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words " fifteen days" shall be substituted.
17. It would be appropriate to refer to the provisions of Section 3(3) of NSA. It provides that "if, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (2), exercise the powers conferred by the said sub-section; provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance, exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time."
[Emphasis Added]
18. Sub-Section 2 of Section 3 of the NSA stipulates that "the Central Government or the State Government may, if satisfied with 18 respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained."
19. The explanation as referred by the writ petition cannot have any bearing in the present case, in as much as the grounds of detention have been supplied within the period as prescribed.
20. Mr. Das, learned counsel has contended that the grounds on which the order of detention has been made was communicated forthwith with such other particulars as having bearing on the matter. He has categorically stated that such order of detention is not supposed to be routinely in force for 12 days after making it, unless in the meantime, it has been approved by the State Government. As we have already referred from the counter affidavit filed by the Opposite Party No.3 that the detention order was passed on 14.03.2022 and that was communicated to the Home Department through E-Mail on 15.03.2022 and on 17.03.2022 grounds of detention was served on the petitioner and the State Government had approved the order of detention on 25.03.2022.
21. According to Mr. Das, learned counsel the word 19 the Apex Court in Hetchin Haokip v. State of Manipur and Others:
AIR 2018 Supreme Court 3419. In that case, the order of detention was challenged on the ground that the District Magistrate failed to report the detention to the State Government "forthwith," in terms of Section 3(4) of the Act. The District Magistrate reported the detention after a lapse of five days, which violated Section 3(4), NSA.
Section 3(4), NSA provides that detaining authority in terms of Section 3(3) NSA shall report of the detention order to the State Government, along with the grounds, based on which the order was made, and any other relevant facts. It also provides that no detention order shall remain in force for more than twelve days after making the order, unless it is approved by the State Government.
22. It was contended in that petition that proviso to Section 3(4) postulates that if the ground of detention were communicated by the officer making the order after five days but not later than ten days from the date of detention, the words 'twelve days', will be substituted by the words 'fifteen days'.
23. Section 8, NSA requires the authority making the detention order to communicate the detenu the grounds for his detention. The said communication has to be made "as soon as may be," but not later than five days from the date of detention, in ordinary circumstances, and not later than ten days from the date of detention, in exceptional 20 circumstances (with reasons to be recorded in writing for the delay). The section also requires the detaining authority to give the detenu the earliest opportunity to make a representation against the detention order to the appropriate government.
24. The question before the High Court of Manipur was whether the act of the District Magistrate, in reporting the order of detention to the State Government, after five days, was in contrast to the requirement of reporting it "forthwith". The appellant had contended before the High Court that "forthwith" means immediately or without delay. It was further submitted that the delay of five days by the Magistrate, in reporting the detention to the State Government vitiates the order of detention.
25. The High Court of Manipur dismissed the writ petition, holding that the scope of Section 3(4) has to be understood according to the scheme of the Act, and not in isolation. The High Court juxtaposed Section 3(4) with Section 8 and it has been held that under Section 3(4), the report of the detention has to be sent along with the grounds for the detention. On conjoint reading of Sections 3(4) and 8, the High Court reasoned that the purpose of sending the report (with grounds) to the State Government under Section 3(4), is to enable the State Government to decide whether or not to approve the order of detention. If the State government does not approve the order 21 of detention within twelve (or fifteen) days, it will lapse. On the other hand, the purpose of Section 8 is more sacrosanct, as it is to make the detenu aware of the reasons for his detention so that he may make a representation to the authorities for his release. The requirement under Section 8 was held to be on a higher pedestal than the one under Section 3(4). If Section 3(4) was interpreted in isolation, it would mean that while the authority can furnish the grounds of detention to the detenu within five days (or in exceptional circumstances, ten days), it must furnish the report with grounds to the State Government immediately, or instantaneously. According to the High Court, such action is not contemplated in NSA.
26. The apex Court while examining the correctness of that interpretation of the High Court in respect of the term "forthwith" under Section 3(4) of NSA had occasioned to dwell upon various precedents. It has been observed thereafter as follows:
"10. This Court has examined the meaning of "forthwith," in the context of the statutes providing for preventive detention. In Keshav Nilkanth Joglekar v The Commissioner of Police, Greater Bombay, a Constitution Bench of this court interpreted Section 3(3) of Preventive Detention Act, 1950 [now repealed], which was similar to Section 3(4) of the Act. The court compared the text of Section 3(3) with Section 7 (equivalent to Section 8 of the Act). It observed that "forthwith" is different from "as soon as may be" in that, under Section 7 the time permitted is 22 "what is reasonably convenient," whereas under Section 3(3), only that period of time is allowed, where the authority could not, without its own fault, send the report. The court laid down the following test for determining whether the action of the authority was compliant with the "forthwith" requirement:
"Under section 3(3) it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of the order and the date of the report, what has to be considered is whether the delay in sending the report could have been avoided."
(emphasis supplied)
11. In Bidya Deb Barma v D.M. Tripura, Agartala2, a Constitution Bench of this court held that:
"When a statute requires something to be done 'forthwith,' or 'immediately' or even 'instantly,' it should probably be understood as allowing a reasonable time for doing it."
12. In S.K. Salim v State of West Bengal3, a two judge Bench of this court observed that laws of preventive detention must be construed with the greatest strictness. However, the rule of strict interpretation does not mean that the act has to be done instantaneously, or simultaneously with the other act, without any interval of time. Here, the court was dealing with Section 3(3) of the Maintenance of Internal Security Act, 1971 (which is equivalent to Section 3(4) of the Act).
The Court held that:
"...the mandate that the report should be made forthwith does not require for its compliance a follow-up action at the split- second when the order of detention is made. There ought to be no laxity and laxity cannot be condoned in face of the 23 command that the report shall be made forthwith. The legislative mandate, however, cannot be measured mathematically in terms of seconds, minutes and hours in order to find whether the report was made forthwith. Administrative exigencies may on occasions render a post-haste compliance impossible and therefore a reasonable allowance has to be made for unavoidable delays."
13. From the above cases, the position that emerges is that "forthwith," under Section 3(4), does not mean instantaneous, but without undue delay and within reasonable time. Whether the authority passing the detention order reported the detention to the State Government within reasonable time and without undue delay, is to be ascertained from the facts of the case. In Joglekar, (AIR 1957 SC 28) there was a delay of eight days by the Police Commissioner, in sending the report to the State Government. However, the court found that the reasons for the delay were reasonable, since the Commissioner and his team were occupied in maintaining law and order during a particularly tense time in Mumbai.
14. The High Court held in its impugned judgment that:
"While the delay in furnishing grounds of detention under Section 8 of the Act may prejudice the right of the detenu as guaranteed under Article 22(5) of the Constitution, furnishing of the grounds of detention under Section 3(4) may not prejudice the detenu so long as the report along with the grounds of detention are furnished within a reasonable time, but certainly within 12 days of the detention...If the report along with the grounds of detention is submitted beyond 12 days, it would certainly vitiate the detention order as without the report and the grounds of detention, 24 the State Government could not have applied their minds whether to approve or not to approve the detention order under Section 3(4) of the Act."
15. The High Court is not correct in holding that as long as the report to the State Government is furnished within twelve days of detention, it will not prejudice the detenu. It is settled law that a statute providing for preventive detention has to be construed strictly. While "forthwith" may be interpreted to mean within reasonable time and without undue delay, it certainly should not be laid down as a principle of law that as long as the report to the State Government is furnished within 12 days of detention, it will not prejudice the detenu. Under Section 3(4), the State Government is required to give its approval to an order of detention within twelve, or as the case may be, fifteen days.
16. The expression "forthwith" under Section 3(4), must be interpreted to mean within reasonable time and without any undue delay.
This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity."
[Emphasis Added]
27. Mr. Das, learned counsel has also referred to a decision in State of Uttar Pradesh Vs. Mahant Singh: AIR 1986 SC 207 where the apex court has observed that the provisions of Section 10 of NSA 25 are mandatory. This Court has on more than one occasion indicated in unmistakable terms that the safeguards available to a detenu are what is guaranteed to him under Article 22(5) of the Constitution. The inflexible time schedule for screening by the Advisory Board is an example of strict compliance. Reference has been made to Khudi Ram Das v State of West Bengal: (1975) 2 SCR 832 where the apex court had occasion to observe as follows:
"The constitutional imperatives enacted in this Article 22 are twofold: (1) the detaining authority must, as soon as may be, that is as soon as practicable after the detention, communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These ate the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a pet son and thereby drown his right of personal liberty in the name of public good and social security."
[Emphasis Added]
28. In Mahant Singh (supra) reference has been made in A.K. Roy v. Union of India: (1982) 2 SCR 272. In that report, similar view was taken regarding compliance of the procedural requirements. In Mahant Singh (supra), it has been categorically stated that the State Government has the obligation to cause the papers relating to the 26 detention placed, along with the representation, if made, within three weeks from the date of detention before the NSA Advisory Board. Where a representation is not made in regard to the detention, the papers without the representation shall have to be placed before the NSA Board within the time prescribed. Where a representation is made within reasonable time, the same has also to be promptly attended to and has to be placed before the Board.
29. Mr. Das, learned counsel has referred a decision of this court in Sagar Parida Vs. State of Odisha and Others,[Judgment dated 19.08.2020 delivered in Writ Petition(Criminal) No.37 of 2020] where this court, having considered Hetchin Haokip (supra) and Commissioner of Police Vs. C. Anita: 2004 (7) SCC 467 regarding the extension of detention period by the Government without approval of the Advisory Board, held that the detention order for a period of twelve months at a stretch without proper review is deterrent to the rights of the detenu. However, a reference was made to A.K. Roy (supra), where the apex court has observed as follows:
"On reading of both the aforesaid decisions it appears, the legal position involving the above aspect has been settled expressing that it is only after the Advisory Board's opinion a duty is cast on the appropriate Government to confirm the detention order and continue the detention of person concerned for such period 27 as it thinks fit. This Court, therefore, observes, after the opinion and report of the Board, a power is already vested with appropriate Government to fix the period for which the detenu shall be detained. This court is of the opinion that discretion lies to the appropriate Government to pass extension order without further reference of the matter to the Advisory Board for its further opinion."
30. Mr. Das, learned counsel has referred to Sagar Parida (supra), particularly Para 11.3, which reads as follows:
"In the case at hand, the Government received the report from the Commissioner of Police (O.P.No.3) on 27.12.2019 about the detention of the petitioner commencing from 19.12.2019. No explanation has been given in any manner as to why report could not be submitted to the Government earlier .This is a laxity remains unexplained and this vitiates the order of detention."
31. Mr. J. Katikia, learned Addl. Government Advocate appearing for the State, particularly for the Opposite Party No.3, has clearly submitted that the release of the petitioner (the detenu) from the jail was a clear mistake by the Superintendent of Jail which he has corrected subsequently by restricting the custody. He has also stated that 28 there was no infraction of Section 3(4) or Sections 8 or 10 in as much as it has been clearly stated by the Opposite Party No.3 that the detention order was passed on 14.03.2022 and on 15.03.2022, the same was communicated to the Home Department through E-Mail. Apart from that, the State Government made reference to the NSA Advisory Board on 25.03.2022. Meanwhile, the petitioner had received the grounds of detention on 17.03.2022. It would be apparent from the representation filed by the petitioner under Section 8 of NSA that the said representation was filed on 28.03.2022, meaning the State Government did not wait for the receipt of the representation from the detenu (the petitioner) and they transmitted all records to the NSA Board for their review. It is needless to say that the grounds of detention were made available to the petitioner within 3 days from the date when the order of the detention was implemented.
32. As such, according to Mr. J. Katikia, learned Addl. Government Advocate there is no infraction. It has been well settled that where the NSA Advisory Board has reported that there is, in their opinion, sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such a period, as it thinks fit. Therefore, there is no question of further review by the NSA Advisory Board. On review after every 3 months, if it is found by the State Government that 29 detention is no more required, then at their discretion, the detenu may be released.
33. According to Mr. J. Katikia, learned Addl. Government Advocate that whenever the extension order is issued by the State Government, they take into their consideration all the material facts and only thereafter, they decide to extend the period of detention. Section 13, NSA clearly provides that nothing contained in section 13 shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.
34. Section 13 provides the maximum period of detention for which any person may be detained in pursuance to any order of detention which has been confirmed under section 12 shall be twelve months from the date of detention.
35. Having appreciated the submission of the learned counsel for the parties, we would like to observe that in the case of Mrs. T. Debaki Vs. Government of Tamil Nadu and Others: 1990 SCR (1) 836 and Harpreet Kaurharvinder Vs. State of Maharashtra and Another: AIR 1992 SC 979, 1992 SCR (1) 234, it has been enunciated by the apex court that the detention order for a period of 12 months at a stretch without proper review is prejudicial to the rights of detenu. But in the case in hand, no such issue has been raised and as a result, we did 30 not have the opportunity to consider whether after proper review the order of detention was extended by the State Government or not.
36. We gather from the records that on the very day when the order of detention dated 14.03.2022 was communicated to the petitioner, the State Government was also communicated the said order of detention for their approval. Hence, there is no infraction of Section 3(4) of NSA. Therefore, the ratio of Hetchin Haokip (supra) has no relevance in the present case. Even the State Government had without waiting for the representations to be filed by the petitioner made the reference to the NSA Advisory Board, on 25.03.2022. Hence, there is no delay.
37. As the NSA Advisory Board had reported their opinion to the effect that there is sufficient cause for detention of the petitioner and the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as they think fit.
38. Having observed thus, we hold that there is no procedural impropriety. But we would like to observe that at the time of passing the order extending the period of detention, the detaining authority is fastened with the duty to make assessment whether the extension is essential or not. They cannot pass the bald order of extension, but the 31 order of extension shall reflect the crux of the consideration. No challenge has been raised on this point. Consequently, no records have been produced before us to consider that aspect. A person who is detained under the provisions of NSA suffers incarceration without trial. Hence, safeguards as provided to the detenu are to be protected by the constitutional courts for deterring the State from arbitrary use of detention. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. The legislature has specifically provided that the "Advisory Board" shall review the grounds of detention. Placing a person under detention for a period of twelve months at a stretch without proper review, is detrimental to the rights of the detenu. Hence, after every three months, there shall be a substantive review to decide whether the detenu should be released or not (See Section 3(3), NSA). In absence of such review, the extension order is bound to vitiate. In such circumstances, the detenu would be entitled for release.
39. But in the present case, no records have been produced from which we can discover that there had been no review for extension.
40. In view of the aforesaid discussion, we do not find any merit in this writ petition and hence, it is dismissed. 32
41. However, the petitioner is at liberty to ask for the review of his detention. In that event, the State Government shall consider his prayer and review whether further extension of the period of detention is warranted or not.
42. There shall be no order as to costs.
43. Certified copies be granted as per rules.
(S. Talapatra)
Judge
I agree. (Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 9th February, 2023/ R.R. Nayak, Jr. Steno.