Orissa High Court
Sk. Munu Alias Sk. Raffique vs State Of Orissa And Anr. on 15 January, 2004
Equivalent citations: 2004(I)OLR139
Author: A.K. Patnaik
Bench: A.K. Patnaik, M.M. Das
JUDGMENT A.K. Patnaik, J.
1. The petitioner was arrested in connection with Kendrapara P.S. Case No. 85 of 2003 registered under Sections 387/506/294 I.P.C. read with Sections 25 and 27 of the Arms Act and was forwarded to the Court of the Sub-Divisional Judicial Magistrate, Kendrapara on 16.4.2003 and was remanded by the Court in the same day to judicial custody. While he was in judicial custody, he was served with an order dated 26.4.2003 of the District Magistrate, Kendrapara under SubSection (2) of Section 3 of the National Security Act, 1980 (for short, "the Act") directing that the petitioner be detained in Choudwar Circle Jail until further orders. The petitioner was also served with the grounds of detention by communication dated 26.4.2003 of the Judicial Magistrate, Kendrapara. Thereafter, the order of detention was confirmed by the Government of Orissa, Home (Special Section) Department by order dated 26th of May, 2003 passed under Section 12 of the Act. Aggrieved, the petitioner has filed this habeas corpus writ petition under Article 226 of the Constitution for quashing the said orders of detention and confirmation in Annexures-1 and 3 to the writ petition respectively.
2. At the hearing of the writ petition, the only contention raised by Mr. Debashis Panda, learned counsel for the petitioner, is that there were no cogent materials whatsoever before the District Magistrate, Kendrapara to come to the conclusion that the petitioner was likely to be released on bail and law is well settled that in a case where a person is already in jail, no order of detention can be passed unless the detaining authority comes to a conclusion that such person is likely to be released on bail and such conclusion is based on cogent materials. In support of this contention, Mr. Panda cited the decision of the Supreme Court in Amritla and Ors. v. Union Govt. through Secy., Ministry of Finance and Ors., AIR 2000 SC 3675.
3. In reply to the aforesaid contention, Mr. Debashis Das, learned Additional Government Adovcate, submitted that in Biru Mahato v. District Magistrate, Dhanbad. AIR 1982 SC 1539 and N. Meera Rani v. Government of Tamil Nadu and Anr., AIR 1989 SC 2027, the Supreme Court has held that the requirement of law in case of a person already in custody is that the detaining authority must show his awareness of the fact that the person is already in custody and the detaining authority must be satisfied that such person is likely to be released on bail and if released on bail he is likely to indulge in activities prejudicial to the maintenance of public order.
Mr Das also cited the decision of the Supreme Court in Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors., (1999) 6 SCC 593, in which the meaning of the expression "grounds" used in Article 22(5) of the Constitution has been explained. Mr. Das relied on the grounds of detention served on the petitioner under the communication dated 26.4.2003 in Annexure-2 to the writ petition and the averments in the counter-affidavit filed by the District Magistrate, Kendrapara to show that the District Magistrate was aware of the fact that the petitioner was in custody and had also come to conclusion that the petitioner was likely to be released on bail and if released on bail, he would indulge in activities prejudicial to the maintenance of public order.
4. The relevant portion of the grounds of detention communicated to the petitioner which contains the awareness of the District Magistrate, Kendrapara, about the fact that the petitioner was in judicial custody and the satisfaction of the District Magistrate, Kendrapara that the petitioner was likely to be released on bail is quoted herein below :
"The normal law of the land is now felt inadequate to curb your antisocial activities which are highly detrimental to the maintenance of public order and there is need to take recourse to Special Law. Hence, you are to be prevented from acting in the manner prejudicial to the maintenance of public order under N.S.A. before you (are) released on bail. You are now in jail custody and likely to be released on bail as evidenced by your bail application vide Kendrapara P.S. Case No. 85, Dt. 15.4.2003 moved in the Court of SDJM, Kendrapara on dt. 21.4.2003."
It will be clear from the aforesaid portion of the grounds of detention that the only material before the District Magistrate for coming to the conclusion that the petitioner was likely to be released on bail was the bail application filed by the petitioner on 24.1.2003 in the Court of the S.D.J.M., Kendraparain connection with Kendrapara P.S. Case No. 85 dated 15.4.2003. The petitioner has challenged this satisfaction of the District Magistrate, Kendrapara in the grounds of detention in the writ petition. Ground No. 8 of the writ petition which contains this challenge is extracted herein below :
"8. FOR THAT, Annexure-2 indicates that the petitioner was being sought to be detained as security prisoner as there was likelihood of his release on bail. On the date of passing the order of detention at Annexure-1 however, there was no cogent materials before the detaining authority to indicate that there was any likelihood of his petition for bail being allowed."
According to the petitioner, there were no cogent materials before the District Magistrate to indicate that there was any likelihood of his petition for bail being allowed. In reply to the said ground No. 8 in the writ petition, the District Magistrate, Kendrapara has stated in his counter-affidavit as follows :
"It is not a fact that there was no cogent materials before the detaining authority to indicate that there was any likelihood of the petitioner being bailed out. On the contrary and as per the matter of record, the Superintendent of Police, Kendrapara had specifically reported to the District Magistrate, Kendrapara that bail application has been filed on behalf of the petitioner in the Court of the Sub-Divisional Judicial Magistrate, Kendrapara which was rejected on 21.4.2003 and that as per legal rights the accused is likely to move for bail in the Court of the Addl.District Judge, Kendrapara and that there is every possibility of his being released on bail. Therefore, the opinion of the District Magistrate that the petitioner may be released on bail is based on cogent materials."
It is clear from the aforesaid statement of the District Magistrate in the counter-affidavit that the bail application of the petitioner moved in the Court of the S.D.J.M., Kendrapara was rejected on 21.4.2003. The order of detention has been passed thereafter on 26.4.2003 and the grounds of detention had been communicated to the petitioner by communication dated 26.4.2003. Therefore, the petitioner's contention that there were no cogent materials in support of the conclusion of the District Magistrate when the order of detention was passed that the petitioner was likely to be released on bail has been substantiated by the counter-affidavit of the District Magistrate, Kendrapara.
5. In Amritlal and Ors. v. Union Govt. through Secy., Ministry of Finance and Ors. (supra), the Supreme Court cited its earlier decision in Rivadeneyta Ricardo Agustin v. Government of The National Capital Territory of Delhi and Ors., 1994 Supp. (1) SCC 597 and Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors., AIR 1986 SC 2090, for laying down the law that there must be cogent materials before the officer passing the detention order that the detenu is likely to be released on bail and this inference must be drawn from the available materials on record and must not be ipsi dixit of the officer passing the order. In the said case of Amritlal (supra), the Supreme Court further found that the available cogent material in that case was likelihood of a bail application being moved but not a bail order being obtained and the Supreme Court held that this did not satisfy the requirement of law. Paragraphs 6 and 7 of the decision of the Supreme Court in Amritlal and Ors. v. Union Govt. through Secy., Ministry of Finance and Ors. (supra) is quoted herein below:
"6. The requirement as noticed above in Binod Singh's case (supra) that there is "likelihood of the petitioners being released on bail" however is not available in the reasoning as provided by the officer concerned. The reasoning available is the 'likelihood of his moving an application for bail which is different from 'likelihood to be released on bail. This reasoning, in our view, is not sufficient compliance with the requirements as laid down.
7. The emphasis however, in Binod Singh's case (supra) that before passing the detention order the authority concerned must satisfy himself of the likelihood of the petitioner being released on bail and that satisfaction ought to be reached on cogent material. Available cogent material is the likelihood of having a bail application moved in the matter but not obtaining a bail order."
Applying the aforesaid law, if the present case the available material is that a bail application was moved by the petitioner in the Court of the S.D.J.M., Kendrapara but the same was rejected on 21.4.2003 and there were no cogent materials before the detaining authority when he passed the order of detention on 26.4.2003 that the petitioner was likely to be released on bail. Thus, the test as laid down in Binod Singh's case (supra) was not satisfied for passing an order of detention in respect of the petitioner who was already in jail custody.
6. The District Magistrate, Kendrapara has further stated in the portion of the ounter-affidavit quoted above that after the bail application was rejected on 21.4.2003 the petitioner was likely to move for bail in the Court of the Additional District Judge, Kendrapara and there was every possibility of his being released on bail, but these facts that the petitioner was likely to move for bail in the Court of the Additional District Judge, Kendrapara and there was every possibility of his being released on bail have not been indicated in the grounds of detention communicated to the petitioner by the communication dated 26.4.2003 in Annexure-2 to the writ petition. Clause-5 of Article 22 of the Constitution of India provides that when any person is detained in pursuance of an order made under the law, the authority making the order shall, as .soon as may be "communicate to such person the grounds on which the order has been made" and shall afford him the earliest opportunity to represent against the order. In the case of Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors. (supra) cited by Mr Debashis Das, the Supreme Court has held that the word "grounds" used in Clause-5 of Article 22 of the Constitution means "not only the narration or conclusion of facts but also all materials on which those facts or conclusions which constitutes "grounds" are based." If, therefore, there were materials with the District Magistrate to show that the petitioner was likely to move the Additional Sessions Judge for bail and there was possibility of his being released on bail, he should have indicated in the grounds of detention communicated to the petitioner not only these facts but also the materials in support of such facts so that the petitioner could effectively exercise his right of representation guaranteed under Article 22(5) of the Constitution. Thus, if we accept the contention that the District Magistrate, Kendrapara after being satisfied that the petitioner was likely to be released on bail by the Additional Sessions Judge passed the order of detention, then the order of detention was illegal for non communication of this ground of detention to the petitioner and for violation of the provisions of Clause-5 of Article 22 of the Constitution.
7. For the aforesaid reasons, we allow the writ petition and quash the impugned orders of detention and confirmation in Annexures-1 and 3 and direct that the petitioner be set at liberty forthwith unless he is wanted in connection with any other case.
M.M. Das, J.
I agree.