Orissa High Court
Prasad Bhola Alias Durga Prasad Bhola vs State Of Orissa And Ors. on 5 November, 1996
Equivalent citations: 1997(I)OLR377
Author: A. Pasayat
Bench: S.N. Phukan, A. Pasayat
JUDGMENT A. Pasayat, J.
1. The order of detention dated 18-8-19:6 which is challenged in this habeas corpus writ application has been passed by the District Magistrate, Puri in exercise of powers conferred by Sub-section (2) of section 3 of the National Security Act, 1980 (in short, 'the Act"), with the view to prevent Prasad Bhola alias Durga Prasad Bhola (hereinafter referred to as 'detenu') from acting in any manner prejudicial to the maintenance of public order. The aforesaid detenu was directed to be interned in District Jail, Puri in pursuance of the said mittimus order of detention, and is at Annexure-i to the writ application.
2. Two points essentially have been raised in support of the writ application.
Firstly, it is submitted that the alleged Incident for which order of detention has been passed at the most may relate to "law and order" situations and not "public order".
Secondly, the requirement of giving an opportunity to the detenu for effective representation which flows from Article 22(5) of the Constitution of India, 1950 (in short, 'the Constitution') has been denied as the petitioner was not informed that he had a right to make a representation to the Central Government.
3. Learned counsel for the State with reference tote records, which were produced before us. submitted that the incidents which formed the foundation for order of detention clearly show that by the acts of the petitioner-detenu even tempo of the society was disturbed, and public tranquillity was affected. They created a fear psychosis in the minds of the citizens. There can be no doubt that "public order" was affected. Therefore, no vulnerability can be attached to the order of detention.
So far as plea regarding non-intimation about the petitioner's right to make a representation to the Central Government is concerned, it is submitted that the statute neither provides nor mandates it.
4. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established bylaw, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a case and the return is not good and sufficient, he is entitled to this writ as of right.
5. Preventive detention is not a punitive but precautionary measure. The object is not to punish a person for having done something, but to prevent and intercept him before he does it again. Mo offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence.Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (Sec Rax v.Naliidev : 1917 AC 260 ; Mr. Kubic Bharlusz v. Union of India and Ors. : AIR 1990 SC ,605 ) That at the same time, a person's greatest of human freedoms, i. e., personal liberty is deprived, and therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguards, however, technical is mandatory. The compul-sions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose alt their meanings, are the true justifications for the laws of preventive detention. Sometimes the deprivation of personal liberty of individuals becomes imperative to protect the society from denigrating Laws that provide for preventi e delention posit that an individual's conduct prejudicial to the maintenance of (a) supplies of commodities necessary for the community, or (b) public order necessary for orderliness in the society can pro ide ground for a satisfaction that similar propensities on the part of the person concerned are likely and there is a possible future manifestation. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty (See Ayya allias Ayub v. State of U. P. and Anr. : AIR 1989 SC 364). To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law absurdly sacrificing the end to the means No law is an end itself and the curtailment of liberty for reasons of. State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions No carte blanche is given to any organ of the State to be the sole arbiter in such matters. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against the detention, as imperated in Article 22(5) of the Constitution, It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition.The representation is to be considered and in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article, 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of the judicial vigilance that is needed was aptly described in the following words in Thomas Paeham Oalse case : 1981 (6)O3D 376.
Then comes the question upon the habeas corpus It is a general rule, which has always beers acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every, step in the process with extreme regularity the Court will not allow the imprisonment to conntiue."
Whenever there is executive invasion on personal liberty, the Court has to weigh in golden scales whether the personal liberty is to be placed at a high pedestal regardless of the social cost involved in the release of a possible renegada. Observations to similar effect were made by the Supreme Court in lohhudevi v. Union of India : AIR 1980 SC 1983. Judged in this background, the question is whether the detention as directed in the instant case is one where the procedural sinews suffered form any weakness to warrant interference.
6. It will be seen that right to represent has been given not only by Article 22(5) of the Constitution, but also by section 8 of the Act. The right provided under the Act has, therefore, to be treated as an extension of the constitutional right already available to a detenu under article 22(5). The Legislature has, in fact, given effect to the constitutional right by providing in section 8 of the Act that the detenu shall have the right of making a representation to the appropriate Government. In Amir Shad Khan v. L. Hmingliana and Ors. ; JT 1991 (3) SC 357 : (1991) 4 SCC 39, the apex Court while considering the provisions of the Conservation) of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, observed as under:
"This clause casts a dual obligation on the detaining authority, namely, (i) to communicate to the detenu the grounds on which the detention order has been made; and (ii) to afford to the detenu the earliest opportunity of making a representation against the detention order. Consequently the failure to communicate the grounds promptly or to afford the detenu an opportunity of making a representation against the order would clearly violate the constitutional guarantee afforded to the detenu by Clause (5) of article 22 of the Constitution. It is by virtue of this right conferred on the detenu that the detaining authority considers it a duty to inform the appelant-detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. The right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in article 22(o) which casts an obligation on the authority to ensure that the detenu is afforded an earliest opportunity to exercise that right, if he so desires"
(underlining for emphasis) This decision was considered in Veeramani v. State of Tamil Nadu :JT 1994 (1) SC 350 : (1994) 2 SCC 337, and it was Said down as under:
"The right to make represention against the detention order flows from article 22(5). But that Article does not say to whom such representation is to be made. Such a representation must be made to the authority who has power to approve, rescind or revoke the decision. To know who has such power, the provisions of the Act have to be seen.Under the T. N. Act any detention order made by the empowered officer - shall cease to be in operation if not approved within 12 days Therefore, the Act never contemplated that the detaining authority has specific power to revoke and it cannot be inferred that a representation can be made to it within the meaning . of article 22(5). Therefore, the representation to be made by the detenu, after the earliest opportunity was afforded to him, can be only to the Government which has the Power to approve or to revoke."
(underlining for emphasis) The position was again reiterated in Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad and Ors. : JT 1996 (2) SC 532.
7. It is now to be seen how far non-mention about the right to make a representation to the Central Government vitiates the order of detention.
8. The stand of the opposite parties is that what is required to be indicated is the right to make a representation to the "appropriate Government", which in the case at hand is "State Government" as appears forom section 2A of the Act. There is no requirement to mention about Central Government.,
9. At this juncture it is necessary to take note of Section 14 of the Act which reads as follows :
"14. Revocation of detention orders-(1) Without prejudice to the provisions of section 21 of the General Clauses Act. 1897 (10 of 1897} a detention order may. at any time, be revoked or modified,-
(a) notwithstanding that the order has been made by an officer mentioned in Sub-section (3) of section 3. by the State Government to which that officer is subordinate or by the Central Government ;
(b) notwithstanding that the order has been made by a State Government, by the Central Government;
(2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh fact; have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer mentioned in Sub-sec. (3) of section 3 as the case may be, is satisfied that such an order should be made."
10. It is, therefore, clear that the Central Government may revoke or modify a detention order notwithstanding the fact that an order has been made by the State Government, Even if an order of detention is passed by the State Government, on a representation being made or on the basis of the information before it. Central Government may revoke or modify the order. Report is submitted to the Central Government for consideration of the question as to whether any revocation or modification is called for or any affirmation has to be made. Discretionary power of the Central Government under section 14(1) in the context of section 3(5) is coupled with the duty to consider the report from the Stats Government with reasonable expedition notwithstanding any representation has been made by the detenu to the State Government. (See Hitendra Nath Goswami v. State of Assam and Ors. : 1984 Cri.LJ 1558): That being the position, in our considered opinion, the detenu has to be informed that he can make representation to the Central Government. Even if section 8 does not specifically refer to such requirement, yet on the background of curtailment of personal liberty guarded by the provision of article 22(5) detenu must be Informed that he can knock the doors of the Central Government for revocation of his order of detention. Such a requirement flows from article 22(5). Decisions of the apex Court in Amir Shad Khan, Veeramani and Kundanbhai's cases (supra) put the matter beyond a shadow of doub. The necessary intimation having not been given to the detenu inevitable conclusion is that the right to make an effective representation has been infringed, thereby vitiating the order of detention.
11. In view of this conclusion, it is really unnecessary to go into the question relating to law and order, and public order. But in view of the scenario as described in the grounds of detention as . available in the records of the proceeding, there can be no manner of doubt that they related to the public order. That question is, however, of academic interest in view of the denial of opportunity to make an effective representation.
12. it has to be added here that the requirement of intimation regarding the right to make a representation to the Central Government, shall have no significance in a case where detnu in fact makes a representation to the Central Government, notwithstanding non-intimation.
Continued detention of the detenu is illegal. Detenu be released forthwith unless he is required to be in custody for some other reason.
S.N. Phukan, C.J.
13. I agree.