V.GOPALA GOWDA, CJ & I.MAHANTY, J.
W.P.(C) No. 5417 of 2010 (Decided on 26.7.2010).
JITENDRA JHA ........... Petitioner.
.Vrs.
STATE OF ORISSA .......... Opp.Parties.
NATIONAL SECURITY ACT, 1980 (ACT NO. 65 OF 1980) - SEC. 3 (2).
For Petitioner - M/s. Umesh Chandra Pattnaik, J.K.Mohanty & S.Das.
For Opp.Parties - Govt. Advocate (for O.P.Nos.1 to 3)
Assistant Solicitor General (For O.P.No.4).
GOPALA GOWDA, C.J. The petitioner-detenu under the National Security Act, 1980 questions the
correctness of the order of detention dated 9.3.2010 passed by the District Magistrate,Keonjhar-
opposite party no.1 and the order of approval of the said order of detention by the State Government
in exercise of power under sub-section (4) of the National Security Act, 1980 produced at Annexures-1
and 7 respectively urging various facts and legal contentions and prays for quashing the same.
2. Necessary brief facts are stated for the purpose of appreciating the rival legal contentions with a
view to find out if the petitioner is entitled for issuance of a writ of certiorari for quashing the order of
detention and order of approval passed by the State Government directing the detaining authority to
set him at liberty.
3. The petitioner is a law abiding citizen and is doing transport business and is also supplying
labourers for loading and unloading of mineral ore at the railway siding at Barbil. He is also an income
tax assessee. It is further stated by him that he was arrested by the Barbil police on 5/6.3.2010 at
about 2 p.m. from his residential house. It is his case that on that day the police entered into his house
by breaking open the window without any search warrant and thereafter he was apprehended. After
arresting the petitioner, F.I.R. was written on a plain paper and the same was registered as Barbil
P.S.Case No. 58 dated 6.3.2010 under sections 307/353/387 IPC read with sections 25/27 of the Arms
Act. It is the further case of the petitioner that no revolver was recovered from his possession or from
his house on the alleged day of arrest. It is the case of the petitioner that he was in custody in
connection with Barbil P.S.Case No. 58 of 2010 and no bail application had been filed but the order of
detention was served on him on 9.3.2010 vide Annexure-1 illegally and arbitrarily without recording
that the petitioner was likely to be released on bail. It is submitted that not only the impugned order
has been passed against the petitioner to detain him in the jail custody but also the police has foisted
three other cases against him which has not been cited in the grounds of detention when it was served
upon him and he has never committed such offences as alleged against him in the grounds of
detention dated 12.3.2010 communicated to him after the order of detention was served upon him.
4. In pursuant to the order of detention and the grounds of detention he had submitted
representation under section 8 of the National Security Act, 1980 (hereinafter referred to as ‘the Act’ in
short) through the Superintendent of Jail to opposite party no.1 for consideration contending that the
order of detention as approved by the State Government is void ab initio. Therefore, he has requested
to release him from the illegal detention.
5. The grounds of attack of the order of detention are that the said order is illegal as the same is
arbitrary, contrary to the provisions of Section 3 (2) of the Act as the allegations in the number of
criminal cases against him do not make out case of disturbance of public order, still the order of
detention was passed and has been approved by opposite party no.1 without application of mind.
Therefore, the same is liable to be quashed. Opposite party no.2 while passing the order of detention
has not recorded his subjective satisfaction with regard to disturbance of public order by the alleged
criminal activities of the petitioner referred to in the grounds of detention dated 12.3.2010 which were
prepared three days after the order of detention was passed. Therefore, the detention order is wholly
unsustainable in law. The further ground of attack of the impugned order is that the order of detention
and the grounds of detention are not forwarded to the State Government together forthwith. Therefore,
the date on which the order of detention was passed, the grounds of detention on the basis of which
the detention order was passed were not there. This aspect of the matter has not been taken into
consideration by the State Government at the time of granting approval to the order of detention.
6. Learned counsel for the petitioner places strong reliance upon the decision of the Supreme Court
in Pooja Batra v. Union of India and others reported in AIR 2009 SC 2256, wherein the apex Court
while examining the preventive detention order passed under the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 with reference to the relevant provisions, namely,
Sections 2(39), 111 and 113 of the Customs Act after referring to its earlier decisions in the case of
Chowdarapu Raghunandan v. State of Tamil Nadu and others, 2002 (3) SCC 754 and Kothari
Filaments and another v. Commissioner of Customs (Port), Kolkata, JT 2009 (1) S.C. 516 wherein the
apex Court held that, if any enquiry is inconclusive pending consideration the same cannot be the
basis for passing an order against the person concerned, held that use of incomplete material which is
either pending or inconclusive cannot be a basis for detention order. With reference to the criminal
cases referred to in the grounds of detention, it is submitted that the detaining authority has not
considered the relevant factual position, namely, out of the six cases referred to in the grounds of
detention in Barbil P.S.Case No. 187 of 2005 the petitioner was acquitted on 25.5.2007. In Barbil
P.S.Case No. 228 of 2007 for the offences under sections 147/148/323/149 IPC, the petitioner is not
named in the FIR. In Barbil P.S.Case No.100 of 2008 for the offences under sections
147/148/452/341/302/149 IPC the petitioner is not named in the FIR. Barbil P.S.Case No. 5 of 2010 for
the alleged offence under sections 341/323/5-6/34 IPC has been compromised. In Barbil P.S.S.D.E.
No. 60 of 2010 no offence is alleged and no FIR is lodged either by police or public. Barbil P.S.Case
No.58 of 2010 for the alleged offences under section 353/307/387 IPC read with Sections 25/27 of the
Arms Act has been registered on plain paper F.I.R. drawn by the police and the police seized cash,
gold ornaments from the house of the petitioner. That case is still pending investigation and therefore
the same cannot be a ground for passing the order of detention on the allegation that there was
disturbance of public order. Therefore, the grounds of detention are totally irrelevant. Further placing
reliance upon the Division Bench judgment of this Court in Tito alias Sayed Usdman Ali v. State of
Orissa and others, 2003 (I) OLR 350, learned counsel for the petitioner submitted that the order of
detention passed under section 3(2) of the Act by the detaining authority against the petitioner, on the
assumption that there is likelihood of the petitioner being enlarged on bail without there being any
cogent material for such assumption cannot be said to be the subjective satisfaction of the detaining
authority.
7. Shri Mohapatra, learned Government Advocate placed strong reliance upon the following
decisions of the Supreme Court, namely, 1975 (2) SCC 255, A.K.Roy v. Union of India, AIR 1982 SC
710, Smt.Shalini Soni and others v. Union of India and others, (1980) 4 S.C.C. 544 and a Division
Bench decision of this Court reported in 1988 Crl.LJ 32 para 11 in support of his contention that the
grounds of detention need not be sent to the detenu along with the order of detention and on this
ground the order of approval of detention order cannot be quashed. Learned counsel has placed
reliance upon the Division Bench judgment of this Court in the case of Surya Narayan Polei v.
Secretary to Government of Orissa, Department of Home (Special Section) reported in 2004 (1) OLR
164 and also on Section 10 of the Act regarding representation of the petitioner. The same was placed
before the Board. Therefore, no prejudice is caused to the petitioner. In support of his submission he
placed reliance on the decision reported in AIR 1986 SC 207 State of U.P. v. Mahant Singh. As the
order of detention was placed before the Advisory Board within the time stipulated and the
representation of the petitioner was forwarded to the Board and the same was considered and
examined by the Board, it is submitted that the procedural safeguards before passing the order of
detention are complied with.
8. With reference to the above said rival legal contentions, the question that would arise for
consideration is whether the order of detention and approval of the same are liable to be quashed.
What order ?
9. The aforesaid points are required to be answered in favour of the petitioner for the following
reasons. The order of detention is dated 9.3.2010. As could be seen from the original file made
available for our perusal, no doubt the grounds on which the order of detention is passed to detain the
petitioner in the jail is on the alleged violation of public order but there are no reference to the cases
referred to in the grounds of detention prepared in the order-sheet of the original file and the said order
is not the grounds of detention communicated and served upon the petitioner, along with the detention
order and the same is not the grounds of detention in support of the detention order sent
together with the detention order to the State Government for its approval. The order of detention is
liable to be quashed for the reason that the grounds mentioned in the original file the details of the
grounds against the petitioner are not forthcoming, but the details are stated in the grounds of
detention dated 12.3.2010 which was communicated and served upon the detenu. Therefore, there
was absolutely no application of mind in the subjective satisfaction of the State Government at the
time of approval of the detention order. Another important undisputed fact is that out of six cases
alleged against the petitioner, which are adverted to in the grounds of detention to reach the subjective
satisfaction to detain the petitioner, only one case is pending against the petitioner that too at the
stage of investigation. In that case, the petitioner was arrested and sent to judicial custody. The reason
assigned in the detention order that the petitioner is likely to be enlarged on bail cannot be a ground
for passing the order of detention under section 3 (2) of the Act. This conclusion of ours is supported
by the Division Bench decision of this Court in the case of Sunil Rajgarhia Vs. State of Orissa & Ors.,
reported in 2003((I) OLR 355. Therefore, the detention is contrary to the decision of the Supreme
Court in the case of Pooja Batra (supra) as the grounds on which the detention order is passed is
totally irrelevant and non-existing fact as the criminal case in Barbil P.S.Case No. 5 of 2010 is still at
the investigation stage. Therefore, on this ground also the order of detention and the order of approval
passed by the State Government are liable to be quashed. The learned counsel for the petitioner has
rightly placed reliance on the aforesaid decision of the Supreme Court in the case of Pooja Batra in
which case the Supreme Court has referred to Chowdarapu Raghunandan v. State of Tamil Nadu
(supra) where the apex Court has held that inconclusive state of investigation cannot legitimately help
the authority to pass the order of detention against the detenu on perfunctory and inchoate material
relied upon. The said decision is aptly applicable to the fact situation. Therefore, the impugned order is
liable to be quashed.
10. In view of the aforesaid reasons, the justification sought for by the learned Government Advocate
Mr.Mohapatra placing reliance upon the various judgments of the Supreme Court adverted to in his
submission referred to in the earlier paragraph of this judgment are wholly misplaced and untenable in
law and therefore the observations made in the aforesaid decisions are wholly inapplicable to the fact
situation as the facts of this case as referred to supra are undisputed. Therefore, the decisions on
which reliance is placed by the learned Government Advocate are not of any assistance in justification
of the order of detention and the approval of the same passed by the State Government respectively.
11. For the aforesaid reasons, the petition must succeed. Accordingly the writ petition is allowed and
the impugned order of detention is quashed and the Jail Authorities are directed to release the
petitioner forthwith unless his detention is warranted in connection with any other case which is
pending against him.
Writ petition allowed.
