Choudhury Debasis Dash vs State of Orissa and Others

A. Pasayat, J.—In exercise of powers under Sub-section (2) of Section 3 of the National Security Act, 1980 (in short, ''the Act'' ) describing the activities of Choudhury Debasis Dash (hereinafter referred to as ''the detenu'' to have affected the public tranquillity, and with a view to prevent him from acting in any manner prejudicial to the maintenance of public: order, an order of detention was passed by the District Magistrate, Khurda on 6-2-1996 which is under-challenge in this writ of habeas corpus.

Indicating nine incidents involving ghastly and cruel acts including murderous assaults, which disturbed even tempo of life in the society order of detention has been passed. Detenu made a representation before the State Government which has been rejected.

In support of the writ application, Mr. M.M. Basu, the learned counsel has primarily taken three grounds, namely,(a) the situations described did not constitute the public order situations, and at best may constitute taw and order situations : (b) three was unusual delay in disposing of the representation and (c) the constitutional protection mendating grant of adequate opportunity for representation has been denied as the detenu was not informed about his right to make a representation to the Central Government.

Mr. B.L.N. Swamy , learned Government Advocate submitted that a base look at the incidents described goes to show the ghastly nature thereof, and its impact on the society at large. They have been rightly described to be public order situations.There has been no delay in disposal of the representation. The petitioner submitted his telprasentation on 27.2.1996 which was rejected by the State Government on 20-3-4596. Various steps taken on different dates have been detailed.The representation was addressed to the Commissioner-cum-secretary cum-Secretary to a Government of Orissa, Home Department/The Chairman, National Security Advisory Board, Orissa through the Superintendent, Special Jail, Bhubaneswar which was forwarded by the District Magistrate along with see para-wise comments thereon to the Home Department con 8-3-1996.It is to be noted that 9-3-1996 and 10-3-1996 were public holidays. The representation was ultimately disposed of on 20-3-1996. There was no requirement to intimate the detenu about his option to make a representation to the Central Government. -Reliance is placed on a decision of the apex Court in Dr A. Franklin Joseph Vs. State of T.N. and Others, , more particularly paragraph 13 thereof.

First controversy is whether the circumstances enumerated in the grounds of detention related to public order of law and order situations. While the expression law and order is wider in scope inasmuch as cotravention of law always affects order, ''public order'' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ''law and order'' and ''public order'' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting ''public order'' from that concerning ''law and order, The question to ask is : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in every case on its, facts. A bare look at the description of the incidents shows the diabolic nature of the ,attacks, ghastly to the core and resulting in wide spread fear psychosis. They have been rightly described as public order situations.

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 imperatas 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 or 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) OBD 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 Court 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 we''re made by the Supreme Court in Ichhudevi v. Union of India: AIR 1380 SC 1983 . Judged in this background, the question is whether : the detention as directed in the instant case is one where the procedural sinew''s suffered from any weakness to warrahi interference.

Records reveal that the detenu submitted a representation on 29-2-1996 through Superintendent, Central Jail, Khurda Same was forwarded to the Home (S. S. ) Department by the District Magistrate along with comments on 7-3-19963 and was received in the Said Department on 8-3-1996 Next two days were holidays. State Government rejected the representation on 20-3-1996 which was communicated to detenu on 22-3-1996. No details have been indicated fey the opposite parties relating, to the periods, (a) 29-2-1996 to 7-3-1996, and (b) 11-3-1996 to 20-3-1996. Had the details been furnished, it would have been possible to know whether representation received urgent attention it deserved, or there was supine indifference. In the absence of details, opposite parties have failed to establish that the representation was dealt with utmost expedition. It is sufficient to render the detention vulnerable. The petition is to Succeed on that score alone.

Coming to the third plea, it will be seen that right to represent has been given not only by Articles 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 and another Vs. L. Hmingliana and others, , 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 is 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 the Clause i(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 appellant detenu of his right to make a representation to the State Government, the Central Government and the Advisory Board. 1 right to make a representation against the detention order thus flows from the constitutional guarantee enshrined in Article 22(5) which -cast 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''s case (supra), and it was laid down as under

1 The right to make representation 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. Dist. Magistrate, Ahmedabad and Ors. JT 1996 (2) SC 532 .

The relevant paragraph on which reliance has been placed by the learned Government Advocate reads as follows :

"We see no force in this submission. In Ibrahim Bachu Safan case nothing is mentioned about the right of the detenu to make representation to the detaining authority itself on the basis of the language of Sec.11 of COFEPOSA Act. it is important to note that in COFEPOSA Act, there is no provision to the effect that when an authorised officer of the State Government passes detention order, he should report the fact to the State Government along with the grounds and that no such order shall remain in force for 12 days after making thereof unless in the meantime it has been approved by the State Government. In other words, the approval of the State Government is not contemplated under COFEPOSA Act and what all Section 3(2)- lays down is that when any order of detention is made by the State Government or by an officer empowered by the State Govt., the State Government within 10 days shall forward to the Central Government a report in respect of the order. There is no provision specifically mentioning that such an order of detention should get the: approval of any of the respective Governments. Therefore, the above observations in Ibrahim Bachu Safan case do not apply to cases arising . under other preventive Detention Acts including the Tamil Nadu Act where there is a specific provision for such approval by the Government within 12 days from the date of making the order and in the instant case where the detention is made under the Tamil Nadu Act, the State Government approved the detention. Further in the counter affidavit it is stated that the question whether the detaining: authority should consider the representation by itself did not factually arise '' inasmuch as no representation either by the-detenu or by his wife addressed to it reached within 12 days from the date of order of detention and that in the meanwhile the Government approved the detention and therefore, the question of revocation by the detaining authority itself after such approval did not arise."

It does not in any way further stand of the State. On the contrary decisions of the Apex Court in Amir Shad Khan''s case (supra), Veeramani''s case (supra) and Kundanbhai''s case {supra) are relevant and directly on the point. Duty is cast on the detaining authority to inform a detenu about his right to make a representation to the Central Government. Failure to inform of his right invalidates the detention.The inevitable conclusion is that non-intimation to detenu of his right to make representation to the Central Government has in the case at hand made the order of detention invalid.

The writ application is allowed. Detenu be set at liberty forthwith unless he is required to be in custody for any other purpose.

S.N. Phukan, C.J.

I agree.