Orissa High Court
Sagar Parida vs State Of Odisha And Others ....... Opp. ... on 19 August, 2020
Equivalent citations: AIRONLINE 2020 ORI 105
Author: A.K.Mishra
Bench: Mohammad Rafiq, A.K.Mishra
IN THE HIGH COURT OF JUDICATURE FOR ORISSA
AT CUTTACK
Writ Petition(Criminal) No.37 of 2020
Sagar Parida ....... Petitioner
- Versus -
State of Odisha and others ....... Opp. Parties
Advocate(s) who appeared in this case by Video Conferencing
mode:-
______________________________________________________________________
For Petitioner : Mr. Chitta Ranjan Dash with
Mr. P.P.Parida, Advocates
For Opp. Parties : Mr. Janmejaya Katikia
(Addl. Government Advocate)
______________________________________________________________________
HONOURABLE THE CHIEF JUSTICE MR. MOHAMMAD RAFIQ
AND
HONOURABLE DR. JUSTICE, A.K.MISHRA.
Date of hearing: 07.08.2020 : Date of judgment: 19.08.2020
JUDGMENT
Per:Dr.A.K.Mishra,J.
The writ jurisdiction is invoked by the petitioner to quash the order of detention dated 19.12.2019 and its consequential proceeding passed by the Commissioner of Police, Bhubaneswar- 2 Cuttack Police Commissionerate (O.P. No.3) under section 3 (2) of the National Security Act,1980 ( for brevity, "the NSA" ).
2. The petitioner was in judicial custody since 14.12.2019 at special jail Jharpada, Bhubaneswar in connection with Chandrasekharpur P.S. Case No.500 dated 13.12.2019 for commission of offence under section 394 I.P.C. While so, the Commissioner of Police, (O.P.No.3) being satisfied with the material and documents submitted by Dy. Commissioner of Police, (O.P. No.4) that prevention of petitioner was imperative from acting in any manner prejudicial to the maintenance of public order and tranquility, passed order detaining him under section 3(2) of the NSA.
2.1 The ground of detention vide annexure-2 was served upon the petitioner on 24.12.2019. Therein, the involvement of the petitioner in sixteen cases including three proceedings under section 110 of Cr.P.C. has been substantiated with particulars. 2.2 The detenu was reported to have committed mugging with lethal weapons in attacking the police. He was habitually indulged in extortion and criminal intimidation prejudicial to the maintenance of the public order. Imminent threat was noticed on 13.12.2019, when the petitioner with his associates tried to shutdown a liquor shop as the Manager did not agree to pay monthly "Dada Bati" and his aggression created panic in the locality.
3
3. The Government of Odisha, Home (Spl. Section), Department (O.P.No.2) approved the detention of the petitioner under Section 3(4) of the NSA on 30.12.2019, vide Annexure-
3. The same was communicated to the petitioner on 1.1.2020 vide Annexure-4. On 2.1.2020, the petitioner was informed by the Secretary, N.S.A. Advisory Board to express his willingness to be heard in person before the Advisory Board. On 9.1.2020, the sitting of the Advisory Board fixed to 14.1.2020 vide Annexure-6 was intimated to the petitioner. The petitioner was heard in person by the Advisory Board. The Advisory Board found sufficient cause for his detention. Basing upon that, the Govt. of Odisha in Home Department passed order on 6.2.2020 confirming the detention of the petitioner for three months from the date of detention, i.e., 19.12.2019 vide Annexure-7. The said confirmation order was served upon the petitioner on 10.2.2020 vide Annexure-8.
3.1 Subsequently, on the recommendation of Opposite Party No.3, Commissioner of Police, the State Government on 18.3.2019 extended the detention period for another three months, thereby for six months, from the date of the detention, i.e., 19.12.2019 vide Annexure-10. The said order was served upon the petitioner on 19.3.2020.
43.2 Though the petitioner has not whispered in the writ petition about the further extension of detention from six months to nine months, it has been mentioned in the argument note filed by learned counsel for the petitioner without any specifics. On the other hand, the leaned Addl. Government Advocate, Mr. Katikia in his written argument note has mentioned and filed the extension order of Government of Odisha (Home Department) No.980/C dated 17.6.2020 showing its service upon the petitioner on 18.6.2020. The copy of the said extension order is taken into record in order to keep the matter straight.
3.3 It transpires that on the proposal of Police Commissioner, the Government on 17.6.2020 have directed the continuance of petitioner in the Special Jail, Jharpada for nine months with effect from the date of initial detention, i.e., 19.12.2019.
4. It is the specific case of the petitioner that all the allegations attributed in the ground of detention are not correct. In some cases final forms have been submitted and in two cases, the petitioner has been acquitted by the Trial Court. All the cases are magistrate triable. On the basis of old and stale cases, the petitioner should not have been detained. The respective informants in Chandrasekharpur P.S. Case No.114 dated 10.3.2019 and Chandrasekharpur P.S. Case No.360 dated 26.08.2017 have 5 voluntarily drawn the attention of the trial court regarding innocence of the petitioner. He was never indulged in any activities which were prejudicial to public order. The procedure adopted by the opposite parties is not inconsonance with the requirement of the NSA.
5. Opposite parties 1 and 2 jointly filed counter affidavit on 15.07.2020 inter alia stating that information regarding the detention along with other relevant materials were received in the Government of Odisha Home (Special Section) Department on 27.12.2019. The same was approved by the Government on 30.12.2019. It was communicated to the Ministry of Home Affairs, Government of India and the Secretary, N.S.A. Advisory Board on 30.12.2019. The report of the N.S.A. Advisory Board dated 4.02.2020 was received in the Home(Special Section) Department on 5.02.2020 and the same was sent to the Ministry of Home Affairs, Government of India vide department letter No.319/C dated 6.02.2020. On consideration of the opinion of the Advisory Board and relevant materials, the State Government confirmed the detention on 6.02.2020. The order of detention was passed to prevent detenu from acting in any manner detrimental to the maintenance of public order.
6. Opposite Party No. 3, Commissioner of Police, filed counter affidavit supporting the ground of detention and his subjective satisfaction based on objective facts. It is categorically stated that the 6 petitioner has not filed any representation against his detention though he was communicated with the order as per law within the scheduled time.
7. No counter affidavit has been filed by opposite party Nos. 4 and 5.
8. Learned counsel for the petitioner buttressed his argument putting forth that the grounds of detention was served upon the detenu on 24.12.2019 and the detention order dated 19.12.2019 was submitted to the Government on 27.12.2019 in contravention of Section 3(4) & Sec.8 of the NSA, and for that the liberty of the petitioner was placed on the sacrificial altar without any rhyme or reason. It is strenuously urged that as the sitting of N.S.A. Advisory Board seeking his willingness was communicated on 9.01.2020, he could not collect the documents to file representation.Such delay was so prejudicial that he could not make his representation and on that score only, the detention should be held invalid. For that learned counsel relied upon the decision reported in AIR 2018 SC 3419:
Hetchin Haokip Vs. The State of Manipur and others. Further it is contended that the extension of detention for another six months by Government on 18.03.2020 and for nine months on 17.6.2020 was made illegally without approval of N.S.A. Advisory Board. Such extension, nothing but mere apprehension based upon stale cases, is 7 liable to be set-aside. Learned counsel relies upon the decisions reported in:-
i) Sama Aruna vs. State Of Telangana and anr (2018 3 SCC (Crl.)
441)
ii) Kapa @ Somanath Sahoo Vrs. Satate of Orissa and others (2015 120 CLT 800),
iii) Munagala Yadamma Vs. State of A.P and Ors, (2012 1 SCC (Cri) 889
iv) Sri Adikanda Sahu vs. State of Orissa and Ors, (2003 OLR (Supp.) 288)
v) Lakhe @ Laxman Bag vs. State of Odisha and Anr.
(2017(Supp.2) OLR 346
vi) Smt. Shashi Aggarwal Vs. State of U.P. and Ors, (1988 0 SCC (Cri) 1788)
vii) Nari @ Narsingh Mohanty Vs. Union of India and Ors, (2015 0 CRLJ 89),
viii) Rekha Vs. State of T. Nadu, 2011 2 SCC (Cri) 596.
9. Mr. Katikia, learned Addl. Government Advocate, per contra, submitted that as required under the provisions of the NSA, the copy of detention order dated 19.12.2019 has been served upon the petitioner on the same day and copy of ground of detention has been served upon him on 24.12.2019 and thereby within five days as required under Sec.8 of the NSA. According to him when ground of detention is served on 24.12.2019, it cannot be said that due to 8 delayed service of N.S.A. Advisory Board notice, he could not collect material to file representation. It is also contended by him that the act of petitioner in using lethal weapon to terrorise the public and police in regular intervals was a threat to the maintenance of public order and such subjective satisfaction of the Commissioner of Police and the State Government should not be interfered with. 9.1 It is strenuously urged that the statutory provisions under NSA and under Article 22 of the Constitution of India are religiously followed for the detention and extension of the petitioner. The authority has considered the criminal proclivities of the petitioner leading to the disruption of public order. The grounds of detention are precise, pertinent, proximate and impelling. The impact of petitioner's overt act on society has been clearly stated in the grounds of detention for which the court should not substitute its own opinion for that of the detaining authority. On this point reliance is placed upon the decision reported in 2004 (7) SCC 467, Commissioner of Police Vs. C. Anita. With regard to extension of detention period by the Government without approval of Advisory Board, learned Addl. Government Advocate placed reliance on the decisions reported in (1) AIR 1952(SC) 27 Makhan Singh Tarasika Vs. State of Punjab (2) A.K. Roy Vs. Union of India (1982) 1 SCC 271 and the Division Bench judgment dated 27.7.2020 of this court in Gugu @ Subasis Khuntia Vrs. State of Odisha and 9 others in W.P.(CRL) 41 of 2020. Lastly, learned Addl. Government Advocate persuaded us to revisit the judgment dated 22.8.2019 of the Division Bench of this Court in W.P.(CRL) No.43 of 2019: Rajib Lochan Das Vs. State of Odisha and Ors. in view of the earlier judgment of Hon'ble Supreme Court in the case of Mrs. T. Devaki vs. Government of Tamil Nadu and Ors: 1990 SCR (1) 836 and Harpreet Kaurharvinder vs. State of Maharashtra and anr., AIR 1992 SC 979,1992 SCR (1) 234, on the point that detention order for a period of twelve months at a stretch without proper review is deterrent to the rights of the detenu.
10. The vital aspect of the challenge in this case is the extension of detention period vide order dated 18.3.2020 and again on 17.62020 by the Government without approval of the N.S.A. Advisory Board and submission of report to the State Government by the Commissioner of Police on 27.12.2019 causing prejudice to the petitioner's right to make objection. Added to that, much emphasis is laid upon the grounds of detention which as per petitioner are either stale or not potent enough to affect the maintenance of public order. 10.1 In this nature of case, where the liberty is under threat, admitted facts obviate debate. Admittedly the report of detention order dated 19.12.2019 has been communicated to the Government on 27.12.2019. The petitioner has not filed any objection or representation 10 though he was heard in person before the N.S.A. Advisory Board. The extension of detention period vide order dated 18.03.2020 and 17.6.2020 by the State Government, that means nine months from the date of detention order dated 19.12.2019, has been passed without approval of N.S.A. Advisory Board.
10.2 At the first flush, the attention of the court is drawn to the extension of detention period for further three months on two occasions by the Government sans approval of the N.S.A. Advisory Board. On this score, it is pertinent to make a glance that the Division Bench of this Court vide judgment dated 27.07.2020 in W.P.(CRL) No. 41 of 2020; Gugu @ Subasis Khuntia Vrs. State of Odisha & others (Hon'ble Chief Justice was a member) referring the decisions of the Hon'ble apex Court in the case of Dattatraya Moreshwar Vrs. The State of Bombay and other, reported in A.I.R. 1952 SC 181 and in the case of A.K.Roy Vrs. Union of India & ors., reported in (1982) 1 SCC 271, has held 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 as it thinks fit. This Court, therefore, observes, after the 11 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."
10.3 In view of the above, this court is disinclined to deliberate on that issue again because of the past perfect precedent reiterated in the aforesaid judgment. Result is the negation of the contention of the learned counsel for the petitioner.
11. The next facet of the challenge is a nagging question surfaced from the fact that delayed submission of report to State, i.e., on 27.12.2019 has potentially disrobed the detenu's right to object and the insensitivity of the State to the subject's liberty has been writ large when no explanation is offered for such delay.
11.1 The categorical plea of the petitioner on this point vide para-10 of the writ petition runs thus:-
"That in this present, the mandate of Section 8 of The National Security Act, 1980 has been violated and the procedure adopted by the Opp. Parties are contrary to the provisions of the Section 3(4) and Section-8 of The National Security Act, 1980. The delay caused by the Opp. Party No.3 has also not been explained in the 12 Grounds of Detention communicated to the Petitioner vide No. 937/CP-Judl Date: 24.12.2019."
11.2 In the decision reported in AIR 2018 SC 3419:
Hetchin Haokip Vs. The State of Manipur and others, the Hon'ble apex Court has elucidated the law on this score in the following words:-
"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 13 the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity.
17. In the present case, the District Magistrate submitted the report to the State Government on the fifth day (17 July 2017), after the date of the detention order (12 July 2017). The reason for the delay of five days is neither mentioned in the State Government's order confirming the detention order, nor in the impugned judgment. It was for the District Magistrate to establish that he had valid and justifiable reasons for submitting the report five days after passing the order of detention. As the decision in Joglekar holds, the issue is whether the report was sent at the earliest time possible or whether the delay in sending the report could have been avoided. Moreover, as the decision in Salim hold, there should be no laxity in reporting the detention to the Government. Whether there were administrative exigencies which justify the delay in sending the report must be explained by the detaining authority. In the present case, as we shall explain, this was a matter specifically placed in issue before the High Court. The District Magistrate offered no explanation. This would vitiate the order of detention."
11.3 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 14 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.
12. The thrust of the next argument is the subjective satisfaction of the Commissioner of Police. Learned counsel for the petitioner has averred and pointed out that in Chandrasekharpur P.S. Case No.114 dated 10.3.2019, the informant Sudam Charan Sahoo and in Chandrasekharpur P.S. Case No.360 dated 26.8.2017 one Gouranga Barik had voluntarily informed the trial court regarding the innocency of the petitioner. The result of those cases is not disclosed. Instead, the petitioner is stated to have secured acquittal in another two cases, i.e., Chandrasekharpur P.S. Case No.235 dated 5.11.2012, corresponding to G.R. Case No.4025 of 2012 and Chandrasekharpur P.S. Case No.143 dated 26.3.2016 corresponding to C.T. Case No.1428 of 2016. The ground of detention vide Annexure-2, reveals that the petitioner was involved in sixteen cases. The petitioner has not specified the particular of cases which are pending, awaiting final forms. Fact remains that petitioner was getting involved in criminal activities in regular intervals. The particulars of cases mentioned in the ground of detention cannot be said incorrect. The incidents are 15 highlighted in the ground of detention with definite impact on the society. The facts substantiated in the grounds of detention cannot be said vague. The petitioner has not shown any misgivings in the grounds of detention save and except that two cases have ended in acquittal.
12.1 In the decision reported in 2011(5) SCC 244 Rekha Vs. State of T.Nadu TR. Sec. to Government and another, the Hon'ble apex Court has held as follows:-
"35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence.
Preventive detention is often described as a
'jurisdiction of suspicion', (Vide State of
Maharashtra vs. Bhaurao Panjabrao Gawande,
(Supra)- para-63). The detaining authority passes the order of detention on subjective satisfaction.
Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the 16 procedural safeguards, however, technical, is, in our opinion, mandatory and vital."
12.2 The Hon'ble Supreme Court, in the decision reported in (1972) 3 SCC 831: Kanu Biswas vs. State of West Bengal has held as follows:-
. "7.The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, according to the dictum laid down in the above case, is a question of degree and the extent of the reach of the act upon the society.
Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?"
12.3 On the touch stone of above test, if the facts mentioned in the ground of detention are considered, it would justify that the act of detenu has cast adverse impact upon the even tempo of the life of the community. The Court, therefore, finds no reason to substitute its 17 opinion for that of the detaining authority with regard to act of threat to the maintenance of the public order. As we have already held that the detention order suffers from the vice of delayed submission of report to the Government vitiating its force, further deliberation on this point would help nothing but brevity.
13. Point advanced but not germane to the facts needs to be addressed now. Learned Addl. Government Advocate persuaded us in the written argument to revisit the judgment of this court in the Division Bench dated 22.8.2019 in W.P.(CRL) No.43 of 2019: Rajib Lochan Das Vs. State of Orissa and others; on the ground that the earlier Hon'ble Apex Court judgment in Mrs. T. Devaki and Harpreet Kaurharvinder (Supra) speak contrary. In Rajib Lochan case (Supra) the Division Bench of this Court in the facts that the State Government had approved the order of detention for twelve months at a stretch commencing from 18.2.2019 held that ordering detention for a period of twelve months at a stretch without proper review was a deterrent to the rights of detenu.
13.1. To arrive at the said conclusion, the Division Bench put reliance upon two decisions of the Hon'ble apex Court, i.e., Cherukuri Mani vs. Chief Secretary, Government of Andhra Pradesh and 18 others: (2015) 13 SCC 722 and Lahu Shrirang Gatkal vs. State of Maharashtra reported in (2017) 13 SCC 519.
14. In view of the virtual hearing of this court for pandemic and submission of written argument, we are unable to get assistance of learned counsel for the petitioner on this point. The Cherikurimani decision of the Hon'ble Supreme Court was a three judge bench judgment. On the issue as to whether the Government have power to pass a detention order to detain a person at a stretch for a period of twelve months under the provisions of Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986, the Hon'ble Court referring the mandate of clause 4(a) of the Article 22 of the Constitution of India held as follows:-
"Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the legislature has specifically provided the mechanism "Advisory Board" to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without 19 proper review, is deterrent to the rights of the detenu. Hence, the impugned government order directing detention for the maximum period of twelve months straightaway cannot be sustained in law."
14.1 The Lahu Siranga Gadkal (supra) case is a two judge bench judgment which has referred to the ratio of the aforesaid Cherukurimani case.
14.2. In Harpreet Kaurharvinder case (supra) the two judge bench of the Hon'bel Supreme Court considered Section-3 (2) of the Maharashtra Prevention of Dangerous Activities of Slumlords Bootleggers and Drug Offenders Act, 1981 and held that "the order of detention in the instant case was vitiated because it was for a period of more than three months." In Harpreet Kaurharvinder case, the previous judgment of Mrs. T. Devaki has been referred to in Para 16-A. It is mentioned therein that those cases were decided on their peculiar facts.
14.3. In Mrs. T. Devaki case of three judge bench, the detention order under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Immoral Traffic Offenders and Slum Grabbers, Act, 1982 was considered and it is held in Para-15 that "we are, therefore, of the opinion that the impugned 20 order of detention is not rendered illegal on account of the detaining authority's failure to specify period of detention in the order."
15. In the case at hand, no detention order in respect of petitioner has been passed for more than three months at a time. As stated above, the initial detention order was passed on 19.12.2019 which was extended on 18.3.2020 and again on 17.6.2020. So in the facts of this case, there is no contentious issue living or raised in the pleading questioning the period of detention more than three months passed incrementally. When there is no issue in the facts of the case, the unilateral persuasion to revisit the earlier judgment of a co-lateral bench in Rajib Lochan Das case does not merit adjudication. It is an academic question. It has no bearing on the right or liability of the parties before us.
16. In the decision reported in AIR 1974 SC 505: Lokanath Pradhan vs. Birendra Kumar Sahu, their lordships have stated in categorical words that " It would be clearly futile and meaningless for the court to decide an academic question, the answer to which would not affect the position of one party or the other. The court could not engage in a fruitless exercise. It would refuse to decide a question unless it has bearing on some right or liability in controversy between the parties."
2116.1. Support may also be drawn from a constitutional bench judgment of the Hon'ble apex Court reported in AIR 1983 SC 239, 1983 SCR (1) 1000; Sanjeev Coke Manufacturing vs. Bharat Coking Coal Ltd. Suffice to conclude on this score that this court does not wish to revisit the judgment dated 22.8.2019 in Rajib Lochan Das (supra) case as there is no living issue in the facts of the case at hand available.
17. A detenu is not a convict. Power to detain under NSA is not a power to punish for offences. Restrictions placed upon the liberty of a detenu, are well guarded by the command of time stipulated procedure. Any deviation, for its impact upon liberty, is to be earmarked to benefit the detenu.
18. In the wake of above analysis of law and facts, the detention of the petitioner w.e.f. 19.12.2019 and its consequential extension, total for nine months, is found vitiated for the delayed submission of the report to the Government as required under Section 3(4) of the NSA.
19. In the result, the writ petition (criminal) is allowed. The order of detention dated 19.12.2019 passed by the Commissioner of Police, Bhubaneswar-Cuttack under Annexure-1 against the petitioner 22 is quashed. The petitioner be set at liberty forthwith if he is not required to be detained otherwise.
............................. .....................................
(Dr.A.K.MISHRA) (MOHAMMAD RAFIQ)
JUDGE CHIEF JUSTICE
Orissa High Court, Cuttack,
The 19th August, 2020/Dhal/Pks