Lallu @ Dillip Sahoo vs State Of Orissa & Others

J.P. Das, J

The petitioner in this writ application challenges the legality of the order dated 20.03.2018 passed by the District Magistrate and Collector,

Jharsuguda vide Annexure-I directing the detention of the petitioner in custody in exercise of power under Sub-section(2) of Section-3 of the National

Security Act, 1980 (hereinafter referred to as ‘the Act’).

The sequence of undisputed fact is that while the petitioner was in judicial custody in relation to some other case, he was served with detention

order vide Annexure-1 on 20.03.2018 along with the grounds of detention. The detention was informed to the Government, Home Department by the

concerned Collector and it was approved by the State Government on 28.03.2018. The approved order was served on the petitioner on 05.04.2018.

On 09.04.2018 the petitioner made a representation challenging his detention addressed to the Hon’ble Chairman and Companion Members of the

N.S.A. Advisory Board, Orissa, Cuttack through the Superintendent of Sub-Jail, Jharsuguda vide Annexure-4. He had also enclosed free copies of the

representations with his said letter for sending to the Government of India and to the Government of Odisha and any other appropriate authority. On

04.2018 the Superintendent of Sub-Jail, Jharsuguda forwarded the copy of the said representation to the Hon’ble Chairman and Companion

Members of the N.S.A Advisory Board, Odisha for favour of perusal. Thereafter on 17. 04.2018 the District Maistrate, Jharsuguda served a letter on

the petitioner informing about his right to represent to the Central Government. On 20.04.2018 the petitioner was personally heard by the N.S.A,

Advisory Board and his detention was approved by the order of the Board dated 26.04.2018. On 08.05.2018, the detention of the petitioner was also

approved by the Central Government. On 18.11.2018 i.e. almost more than six months thereafter the Superintendent of Sub-Jail, Jharsuguda

forwarded a copy of the representation dated 09.04.2018 given by the petitioner to the State Government.

In the present application the petitioner assails his detention submitting that it was not only illegal but the actions of the detaining authority were also

not according to the prescribed procedure thereby making his detention unlawful. The learned counsel for the petitioner mainly contended that the

detaining authority failed to carry out their responsibility that arises under Article 22(5) of the Constitution of India by failing to forward the

representation of the petitioner to the State Government as well as to the Central Government, thereby violating a statutory right available to the

petitioner. It was submitted that Article 22(5) casts an important duty on the detaining authority to communicate the grounds of the detention to the

detenue at the earliest to afford him an opportunity of making a representation against the detention order. It was submitted that although the petitioner

submitted his representations on 09.04.2018 still those were forwarded to the concerned authorities only on 18.11.2018 and one month thereafter the

State Government as well as the Central Government rejected his representation. It was further submitted on behalf of the petitioner that the grounds

of detention as served on the petitioner mentioned that assessing the activities of the petitioner as reported by the Superintendent of Police, Jharsuguda

and its further repercussion on the normal public life, the District Magistrate, Jharsuguda had reasons to believe that the detention of the petitioner

under the provisions of the Act was essential for maintenance of public order and for prevention of disturbance of normal tempo of life in Jharsuguda

town and its vicinity. It was submitted that although the observations of the District Magistrate relied upon the report submitted by the Superintendent

of Police, Jharsuguda, still a copy of the said report was not supplied to the petitioner thereby violating his valuable right as per the settled principle of

law.

Per contra, it was submitted on behalf of the State as well as the Union of India that there has been no violation of the principles of natural justice

nor was there any deviation in carrying out the obligations on the part of the detaining authority so as to make the detention of the petitioner illegal or

unlawful. It was submitted that the specific grounds of detention mentioning the criminal activities of the petitioner disturbing the normal public life

along with the list of twenty two criminal cases involving different serious offences were also intimated to the petitioner and he was also informed that

he had liberty to represent his case to the State Government/Advisory Board under Section 9 of the Act. It was further submitted that as claimed by

the petitioner on 09.04.2018, the petitioner submitted a representation addressed only to the Hon’ble Chairman and Companion Members of the

N.S.A. Advisory Board and it was duly forwarded to the addressed authority by the concerned Superintendent of Sub-Jail Jharsuguda on the very

next day. It was submitted by the learned counsel for the State that since the letter was addressed to the Advisory Board, it was sent to the said

authority and there being no other representation of the petitioner addressed either to the State Government or to the Central Government, no latches

could be attributed to the actions of the detaining authority in not forwarding the same to the State or Central Government. As regards the report of

the Superintendent of Police, it was submitted that the details of the criminal activities as well as pending criminal cases were informed to the

petitioner in the grounds of detention served on him on the very day of detention i.e. 20.03.2018 and hence, non-supply of the copy of the report of the

Superintendent of Police to the petitioner in no way affected his information.

It is borne out from the record that the petitioner made a representation on 09.04.2018 addressed to the Hon’ble Chairman and Companion

Members of the N.S.A. Advisory Board, Odisha, Cuttack wherein his signature was duly attested by the Superintendent of Sub-Jail, Jharsuguda and it

is specifically seen therein (Annexure-4) that the petitioner had enclosed three copies of his such representation for sending to Home Affairs,

Government of India, New Delhi and Secretary, Home Department (Special Section) Government of Odisha, Bhubaneswar/appropriate authority.

Thus, the submission made on behalf of the State that the petitioner had not made any other representation falls to the ground. That is, more so, for the

admitted position that there being no further representation made by the petitioner, the Superintendent, Sub-Jail, Jharsuguda forwarded the copy of the

said representation to the Secretary of the Government, Home Department, Bhubaneswar on 18.11.2018 i.e. more than seven months after the

representation was made by the petitioner. In this regard, the learned counsel for the petitioner relied upon the decision of the Hon’ble Apex Court

reported in AIR 1991 SC 1090 (Smt. Gracy v. State of Kerala and another) which was also relied upon by this Court in a decision reported in (2004)

29 OCR 686 (Babu @ Gobardhan Rath Vrs State of Odisha and others). It was observed by the Hon’ble Apex Court that:-

“It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Art.22(5) of its

consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its

opinion..

In other words, on representation of the detenue addressed only to the Central Government and not also the Advisory Board does not dispense with the

requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirement of consideration by Government is

dispensed with when the detenu’s representation instead of being addressed to the Government or also to the Central Government is addressed only to the

Advisory Board and submitted to the Advisory Board instead of the Government ? On principle, we find it difficult to uphold the learned Solicitor General’s

contention, which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority

under Art. 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference

with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Art. 22(5) casts an important duty on the detaining

authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the

detention order which implied the duty to consider and decide the representation when made, as soon as possible. Art.22(5) speaks of the detenu’s

representation against the order, and imposes the obligation on the detaining authority. Thus, any representation of the detenue against the order of his

detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional

requirement implied by reading together Cls. (4) and (5) of Art. 22, even though express mention in Art. 22(5) is only of the detaining authority. Moreover, the

order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board’s role being

merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions of representation to two different

authority viz. the detaining authority and the Advisory Board, both having independent power to act on its own.

It being settled that the aforesaid dual obligation of consideration of the detenu’s representation by the Advisory Board and independently by the detaining

authority flows from art.22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority

is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the

Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art. 22(5) in support of the contention of

the learned Solicitor General. The content of Art.22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as

there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Art.22(5) arises irrespective of the fact whether

the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form, which cannot whittle

down the requirement of the constitutional mandate in Art. 22(5) enacted as one of the safeguard provided to the detenu in case of preventive detention.â€​

In view of the aforesaid position of law and on the undisputed facts that the representation submitted by the petitioner on 09.04.2018 was forwarded to

the State Government by the Jail Authority on 18.11.2018, it is apparent that the detaining authority has failed in complying the constitutional mandate

while performing their duties and hence, the detention of the petitioner is definitely unsustainable. It is also not disputed that the reports submitted by

the Superintendent of Police, Jharsuguda was relied upon by the concerned District Magistrate in assessing the criminal activities of the petitioner but

the copy of the said order was not served on the petitioner. In this respect, the learned counsel for the petitioner relied on the decision of this Court

reported in (2007) 36 OCR 833 ( Sailendra Kumar Jora v. District Magistrate and Two Ors). It was observed therein that whatever materials have

been considered by the detaining authority in passing the order of the detention should be made available to the petitioner to enable him to make a

proper representation against the grounds of detention. It was further observed that even then the grounds of detention virtually contains all the

materials which were there in the report of the Superintendent of Police, even though the fact remains that the report of the Superintendent of Police

has not been supplied to the detenue. Relying upon a decision of the Hon’ble Apex Court reported in AIR, 1980 SC 1983 ( Smt. Icchu Devi

Choraria V. Union of India and Ors). It was observed that:

“This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement

of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention.â€​

In view of the aforesaid facts and the position of law, we are of the considered view that there were fatal lapses on the part of the detaining

authority, and consequentially therefore, the order of detention is liable to be quashed.

Accordingly, we allow the petition quashing the order dated 20.03.2018 passed by the District Magistrate and Collector, Jharsuguda vide

Annexureâ€"1 and direct that the petitioner be released forthwith if his detention in custody, is not required in connection with any other case.

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