Sumanta Rout vs State of Orissa and Others

L. Mohapatra, J.—The petitioner in this writ application calls in question the legality of the order dated 2.11.2002 passed by the District Magistrate, Jagatsinghpur in N.S.A. Case No. 1 of 2002 directing detention of the petitioner under the provisions of the National Security Act, 1980 under Annexure-1 as well as the order dated 20.12.2002 passed by the State Government confirming such detention in Annexure-4.

Case of the petitioner is that he was working as Auto-Rickshaw driver and was implicated in some cases where the actual culprits were unknown. On 18.6.2002 the petitioner surrendered before the learned S.D.J.M., Jagatsinghpur in G.R. Case No. 836 of 2001 and his prayer for bail having been refused he was remanded to judicial custody. While in judicial custody in the aforesaid case, he was served with the impugned notice in Annexure-1 along with grounds of his detention. After receipt of the grounds of detention the petitioner made a representation to the Chairman of the National Security Advisory Board but the same was rejected and his detention was confirmed by the State Government in Annexure-4. Though the petitioner had also made representation to the Central Government he has not received any intimation with regard to the orders passed on the same. The petitioner challenges the order of detention on the following grounds :

(a) Grounds of detention are in vague and not supported with any credible materials;

(b) Allegations on the basis of which the order is passed does not come within the purview of public order as prescribed in the Act;

(c) In two of the cases referred to in the detention order the petitioner has been acquitted and therefore mentioning of these cases in the grounds of detention itself indicates non-application of mind on the part of the District Magistrate;

(d) The petitioner was in custody and his application for bail had been rejected. Therefore, there was not necessity of passing the detention order;

(e) Grounds of detention are in English language and the petitioner being an illiterate person he should have been supplied with translated copy in Oriya and due to non-supply of such translated copy the petitioner was prejudiced.

Learned Additional Government Advocate appearing for the State, on the other hand, referring to the grounds of detention contended that the petitioner was found to be involved in several cases more or less of similar nature and therefore the District Magistrate was of the view that in order to maintain public order it was necessary to detain the petitioner in custody under the Act. He further contended that since the petitioner was being released on bail in all cases he was involved in, there was every justification on the part of the District Magistrate to presume in the case where the petitioner was in custody that he may also be granted bail in due course and therefore there was no illegality in passing the order when the petitioner was in custody. Referring to the counter-affidavit filed on behalf of opposite party No. 2 learned Additional Government Advocate further submitted that the petitioner got involved in anti-social activities time and again which resulted in detoriation of public order. It was also contended that the nature of allegations made and the activities of the petitioner were targeted at public at large in order to create an image for himself as the king of the area and presence of the petitioner in the society itself was detrimental to peace loving citizens of the locality. He also contended that since the age of 23 the petitioner is involved in such type of activities and the grounds of detention clearly indicate number of cases he is involved in and therefore it cannot be said that conduct of the petitioner amounted to breach of law and order.

We have perused the detention order as well as grounds of detention. From the grounds of detention it appears that criminal activities as alleged started in the year 1995 and in between July, 1995 till date of detention, several cases have been registered against the petitioner for commission of more or less same type of offences. It appears that in July, 1995 a case was registered for commission of offence under Sections 342/323/34 of the Penal Code read with Section 27 of the Arms Act. Similarly in several other cases charge-sheet had been filed in 1996, 1997, 1998, 2000, 2001 and 2002. Out of all these cases it is alleged by the petitioner that he had been acquitted in respect of two cases which had not been taken note of by the District Magistrate. In this connection, learned counsel appearing for the petitioner relied upon a decision of this Court in the case of Yasobanta Sahu alias Yasobanta Kumar Sahu Vs. State of Orissa and Others, . This Court in the aforesaid decision observed that 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 order of detention. The Court further observed that where at the time when the detaining authority passed the detention order the vital fact, namely, the acquittals of the detenue 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 detenue resulting in non-application of mind of the detaining authority to the said fact vitiated the requisite subjective satisfaction rendering the detention order invalid. There is no dispute about the aforesaid proposition of law, but each case is to be examined on the basis of the facts available. So far as the present case is concerned, as it appears from the grounds of detention that several cases have been registered against the petitioner in between 1995 and 2002. Out of several cases the petitioner having been acquitted only in two cases, in our view, even if the detaining authority has not taken note of such acquittal, it has made no difference in the ultimate subjective satisfaction of the detaining authority. We, therefore, do not find any force in the contention of the learned counsel for the petitioner on this score.

Further contention of the learned counsel for the petitioner is that Keeping in mind the nature of offences alleged, it can only be said that there was contravention of "law and order" and not "public order". The question what will constitute "public order" and what will not was examined by this Court in the case of Tilatama Parida v. State of Orissa, reported in (1997) 13 OCR 377. This Court while deciding the question observed that whether a particular act or acts amounts or amount to breach of ''public order'' or ''law and order'', one must ask the question as to whether such act or acts leads or lead to disturbance of current life of the community so as to constitute disturbance of public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in several cases on different facts. This Court further observed as follows :

"While the expression ''law and order'' is wider in scope in as much as contravention of law always affects order, ''public order'' has a narrower ambit, and public order would 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 the 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 to distinguish it as an act affecting ''public order'' from that concerning ''law and order'' xxx".

In the light of the observations of this Court in the aforesaid case quoted above, we proceed to examine the grounds of detention. The petitioner was first involved in a criminal case in July, 1995 vide Jagatsinghpur P.S. Case No. 228 dated 2.7.1995 for commission of offences under Sections 342/323/34 of the Penal Code read with Section 27 of the Arms Act. Thereafter as it appears from the grounds of detention every year cases have been registered against the petitioner for his involvement in several cases till 2002 when the detention order was passed. The detaining authority observed that registration of several cases during the years 1995 to 2002 clearly indicate that the petitioner a die-hard criminal who can go upto any extent to earn money. He has observed that the petitioner has no regard for the laws of the land and for silly matters he does not hesitate to take the law into his own hands and has been creating havoc not only in Jagatsinghpur but also in Tirtol, Kishorenagar and other places. The detaining authority has also observed that conduct of the petitioner has caused heavy loss and delay in implementation of the crucial Railway project of laying down double track connecting the Paradip major port with the South Eastern Railway network and his presence is prejudicial to the public order and the ordinary law of the land has not been able to prevent him from becoming a certain hazard to public order and tranquility in the area. The observation of the detaining authority is based taking into consideration the allegations made in different cases registered against the petitioner. On perusal of the allegations as enumerated in the grounds of detention, we do not find any illegality in the observation made by the detaining authority saying that the activities of the petitioner amounts to contravention of public order.

So far as the other question raised by the learned counsel for the petitioner is concerned, it is alleged that when the petitioner was in custody there was no necessity for the detaining authority to pass an order of preventive detention. In this connection, reference may be made to the decision of this Court in the case of Tilatama Parida v. State of Orissa (supra). This Court in paragraph-5 of the judgment referring to some decisions of the apex Court has observed as follows :

"So far as the second question relating to procedure to be adopted in case the detenue is already in custody is concerned, the guidelines have been indicated by one of us (Pasayat, J.) in Saras Kumar Mohanty seeking release of Kunumunia alias Sisir Mohanty Vs. State of Orissa and Others, In matter where the detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity of keeping such persons in detention under the preventive detention laws. Subsisting custody of the detenue by itself does not invalidate an order of his preventive detention, one the decision must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenue from acting in any manner prejudicial to the security of the State, or to the maintenance of public order, etc., ordinarily, it is not needed when detenue is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenue and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there is likelihood of his release and in view, his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging such prejudicial activities the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenue was likely to be released on bail, the order would be vitiated. (See N. Meera Rani Vs. Government of Tamil Nadu and Another, ; Dharmendra Suganchand Chelawat and another Vs. Union of India and others, . The point was gone into detail in Kamarunnissa and Others Vs. Union of India and another, . The principles were set out as follows. Even in the case of a person in custody, a detention order can be validly passed (1) If the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him; (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand, the order of detention and grounds of detention show awareness of custody and/or possibility of release on bail, and/or apprehension aspect. This is manifest from following indications in that regard in the grounds of detention.

''In spite of being arrested and forwarded in custody in several cases, your anti-social activities are going unabated. You are coming out on bail and committing further offences by creating havoc in the area more vigorously. You were arrested and forwarded to jail custody in Purighat P. S. Case No. 266 dated 4.9.96.

A situation has now come when the normal laws of the land are not felt adequate to curb your daredevil, highhanded anti-social activities.

It is likely that you might be released on bail and indulge in further violent and anti-social activities prejudicial to the maintenance of public order and tranquillity.''

The records reveal that the detenue having been on earlier occasions released on bail continued his criminal activities. Therefore, the conclusion of the detaining authority cannot be said to be based on presumptions and without any foundation. The plea in that regard taken by the petitioner fails."

In the light of the decision if the case of the present petitioner is examined, it will be found that even though several cases have been registered against the petitioner, he has been released on bail in all cases excepting last one and the nature of offence are such that there is every likelihood that the petitioner may be released on bail. Therefore, merely because the petitioner was in custody at the time of passing of the order of preventive detention, the same cannot be a ground for setting aside the detention order. It will depend on facts of each case. The detaining authority in his order has also observed that the petitioner has obtained bail order from the Additional Sessions Judge, Jagatsinghpur in all the three cases he had been remanded and had also applied for bail in Non-FIR case. Therefore, it cannot be said that the detaining authority while passing order of detention had not considered this aspect at all. We, therefore, do not find any force in the contention of the learned counsel for the petitioner in this regard.

So far as last question is concerned, learned counsel for the petitioner submitted that the detention order was passed in English language and the petitioner being an illiterate person, he should have been supplied with Oriya translated copy of the order of detention. Learned counsel, for the State has produced records before this Court. From the record, we find that the petitioner had in fact been supplied with Oriya translated copy of the grounds of detention and while receiving the grounds of detention, he has put his thumb impression and the grounds of detention were read over and explained to him and after understanding the same he accepted the copy. In view of the above, we also do not find any substance in the arguments advanced by the learned counsel for the petitioner.

In view of the reasons stated above, we do not find any merit in the writ application and the same stands dismissed.

Sujit Barman Roy, C.J.

I agree.