Orissa High Court
Yasobanta Sahu Alias Yasobanta Kumar ... vs State Of Orissa, Represented Through ... on 5 September, 1997
Equivalent citations: 1997(II)OLR391
Author: A. Pasayat
Bench: S.N. Phukan, A. Pasayat
JUDGMENT A. Pasayat, J.
1. Yasobanta Sahu alias Yasobanta Kumar Sahu (hereinafter referred to as the 'detenu') has questioned the order of detention passed by the District Magistrate, Sundargarh in purported exercise of power under Section 3(2) of the National Security Act, 1980 (in short, "the Act"). Main ground of attack to the order of detention is that there is unexplained delay in disposal of the representation made by the detenu questioning his detention. Subjective satisfaction of the detaining authority has been vitiated as the fact of acquittal in many cases which have been enumerated in the grounds of detention has not been considered and in fact it has been indicated as if those cases are pending. The detenu asked for Oriya translation of certain annexures which were refused, and the Central Government has not disposed of the representation made to it.
2. Before we deal with the grounds of attack it is necessary to make a brief reference to the grounds of detention which according to the detaining authority necessitated the detention of detenu. From the grounds of detention it appears that the District Magistrate was of the view that the detenu indulged in terrorising the innocent public involving himself in a series of criminal cases like criminally intimidating the public creating a sense of terror in the locality being armed with deadly weapons like fire-arms, explosives etc. He was in the habit of attacking Government servants to fulfil his undue desires, as a result of which the general public of Sundargarh town were panic-stricken. A reference to ten cases has been made in which the detenu was alleged to have been involved. After attaining youth, the detenu started his heinous activities in and around Sundargarh town with his associates since 1988, managed to obtain Government works of various departments by terrorising Government officials and master-minded group rivalry disclosing him as "goonda" of the town. He also developed an organised and loyal cadre of anti-social youths and involved them in anti-social activities creating public disorder. After having become the President of Trekker Owners' Association, Sundargarh, he attempted to black-mail the district administration by stopping plying of trekkers without prior notice thereby paralysing the entire communication system, He believed that because of his control on the communication system, the law enforcement authorities as well as the district administration will think twice before touching him. After his arrest on 28.10.1996 in Sundargarh Town P.S. Case No. 116 of 1996, he asked his followers in presence of the police to stop plying of buses, trekkers etc. in Sundargarh indefinitely. All on a sudden, the entire traffic system came to a stand-still causing great difficulty to the general public as well as commuters from outside. He instigated the terrorised shop-keepers of the town to close their shops, which they had to do out of fear. The shops were reopened in the evening only after the police organised a Flag-March in the town with five platoons of Orissa Special Armed Police on 28.10.1996 to instil confidence among the public, but no vehicle could ply. At the time of arrest, he openly threatened that the police officers were under-estimating his powers and he could paralyse the life in Sundargarh town and break the normalcy until he. is bailed out from police custody, and asked his supporters to organise a befitting retaliation to the police action, and his supporters armed with deadly weapons went to market which created a sense of terror and insecurity among the general public and shop-keepers. Normalcy could be restored after the police Flag-marched in the town.
On 29.10.1996 with the help of police protection, and police security normal life could be restored. For this purpose, three platoons of armed police at various points were used under the supervision of superior officers. Due to threat given by the detenu the vehicular traffic got paralysed till 29.10.1996. Four such strikes were organised under the leadership of the detenu without any prior notice putting the general public into great harassment. A sense of communal feeling and enmity was generated in the minds of peace-loving citizens on account of activities of detenu to make Ayodhya-Babri Masjid issue a pivotal point attracting communal disharmony. The anti-social activities of the detenu were increasing day by day and the witnesses did not dare to depose against him in Court of Law out of fear. The detenu threatened the witnesses from deposing in the Court of law as he wanted that the cases against him to end up in acquittal. In view of the threat given by the detenu and his followers, the local people were apprehensive of their life, and they were reluctant to depose against the detenu out of fear. The violent actions and criminal attitude in creating panic in the society, and the effect that none was daring to depose against him for which the general law was unable to keep him behind the bars necessitated passing of the order of detention.
3. The learned counsel for State submitted that there has been no delay in disposal of the representation. Subjective satisfaction of the detaining authority is not vitiated because the order of acquittal is of really no consequence. In fact the detaining authority felt that because of threats given the witnesses are not coming forward to depose and as a result the trial in the cases end in acquittals. There was no prayer for Oriya translation of the Annexures and in fact there was no refusal.
Mr. A.B. Misra, learned Sr. Standing Counsel (Central) submitted that he is unable to assist the Court in the absence of proper instruction from the concerned authority of the Central Government. However, there is no material to show that any representation was made to the Central Government.
4. The requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the order of detention. Where at the time when the detaining authority passed the detention order the vital fact, namely, the acquittals of the detenu in some of the cases described in the grounds of detention had not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the matter was pending trial, the non-placing of the material fact- namely, the acquittal of detenu resulting in non-application of mind of the detaining authority to the said fact vitiated the requisite subject satisfaction rendering the detention order invalid. (See Dharamdas Shamlal Agarwal v. The Police Commissioner and Anr. : AIR 1989 SC 1282). However, even if a criminal prosecution fails, and an order of detention is then made, it would not invalidate the order of detention because the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter, the order of detention would not be bad merely because the criminal prosecution has failed. (See Shiv Ratan Makim v. Union of India : AIR 1986 SC 610, Mohd. Subrati v. State of West Bengal : AIR 1973 SC 207). The question of acquittal is not material, but what is material is the question of non-placing of material and vital fact of acquittal which if had been placed, would have influenced the minds of the detaining authority one way or the other. The question is whether the circumstances could possibly have an impact on the decision; and whether or not to make an order of detention.
5. In the case at hand, we find that the detaining authority has referred to certain acquittals. The stress is on the impact of the activities dated 28.10.1996 and 29.10.1966. The impact of a single act on even tempo of life is also sufficient to warrant an order of detention. The detaining authority was conscious that there have been acquittals. He has attributed this to terrorisation of witnesses. It has been clearly indicated that acquittals would not have weighed with him as the foundation was acquittal due to terrorisation. In the circumstances, mere fact that detenu has been acquitted in some cases shown to be pending is inconsequential in view of the aforesaid aspects. This plea of detenu fails.
6. So far as the question whether there was delay in disposal of the representation is concerned, same has to be considered in the background of Article 22(5) of the Constitution. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against 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 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 Pacham Dales' case : 1981 (6) QBD 376.
"Then comes the question upon the habeas corpus. It is a general rule, which has always been 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 Courts will not allow the imprisonment to continue."
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 renegade. Observations to similar effect were made by the Supreme Court in Ichhudevi v. Union of India : AIR 1980 SC 1983.
7. The affidavits filed by the Collector and District Magistrate, Sundargarh on 11.2.1997 in paragraph 6 reads as follows :
"That the petitioner after receipt of the grounds of detention had made a representation on 18.11.1996 addressed to the Advisory Board. He had also made a similar application to Government in Home Department on 15.11.1996. After receiving the copy of the representation from the State Government para-wise comments from S. P. M Sundargarh were called for. On 28.11.1996 after receipt of the para-wise comments, they were forwarded to the Government. After careful consideration, the Government has also upheld the order or detention and communicated the said order of rejection."
It is not clear from the affidavit as to when the views were sent to the Government. It is only stated that on 28.11.1996 after receipt of para-wise comments they were forwarded to the Government When they were forwarded to the Government, and when it reached the Government is not indicated. Further, when the copy of representation from the State Government was received and when the para-wise comments were called for from the Superintendent of Police, Sundargarh, and were received is also not indicated. Thus, the materials placed are inadequate and deficient so far as the question whether the representation was dealt with requisite expedition. That itself renders the order of detention otiose.
In the absence of any definite material to show that any representation was made to Central Government, it is not necessary to consider the plea that the same was not expeditiously dealt with.
The writ application is allowed. The order of detention vide Annexure I is quashed, and the detenu-petitioner be set at liberty forthwith, unless he is required to be in custody in connection with any other proceeding.
S.N. Phukan, C.J.
8. I agree.