GUGU @ SUBASIS KHUNTIA Vs. STATE OF ODISHA

JUDGEMENT

(1.) This is an application involving National Security Act, 1980 (in short, "the Act") challenging therein the order dated 04.01.2020 (Annexure-4) and the order dated 10.02.2020 (Annexure-5) being passed by the Joint Secretary to Government in Home Department intimating thereby the detenu about rejection of his representation by the State Government being devoid of merit thereby further indicating the approval of the extension of detention period of three months and in the subsequent order in exercise of power conferred under Section 12(1) read with Sections 3(3) and 13 of the Act extending the detention of the detenu for a period of six months instead of three months from the date of his detention under the orders of detention under the Act. By way of additional affidavit the petitioner filing the correspondence dated 05.05.2020 has also challenged the communication dated 05.05.2020 of the competent authority thereby extending detention period involving the petitioner from six months to nine months in exercise of their power under Section 12(1) read with Sections 3(3) and 13 of the Act.

(2.) Short background involving the case is that the petitioner was initially arrested and forwarded on 02.10.2019 for his alleged involvement under Sections 341/506/386/34 of I.P.C. involving Madhupatna P.S. Case No.150 dated 14.09.2019. While the matter stood thus, when the petitioner was in jail custody, O.P.3, Commissioner of Police, Police Commissionerate, Bhubaneswar-Cuttack, passed the order of detention under the Act involving the petitioner on 12.11.2019 directing thereby the detention of the detenu resulted taking into consideration his involvement in nineteen numbers of cases against the detenu as appearing at Annexure-1. The petitioner claimed that out of nineteen cases other than that of the Madhupatna P.S. Case No.150/2019, the detenu has already been acquitted in some cases by the competent court of law and in the rest cases, he has also been enlarged on bail by this Court as well as the subordinate court, as clearly borne from the order of detention passed by O.P.3. Consequent upon service of order of detention, vide Annexure-1, the petitioner filed his representation before O.P.1 on 05.12.2020 defending him from the charges. It is while the matter stood thus, vide order dated 18.12.2019, O.P.1 rejected the representation of the petitioner, as appearing at Annexure-3. In the meantime, O.P.1 issued another order dated 04.01.2020 with reference to the matter of detention of the detenu to the Advisory Board disclosing therein that the Board was of the opinion that there has been sufficient cause for his detention and the order was passed after giving opportunity of hearing to the detenu and further O.P.1 has confirmed the detention order and directed for continuation of the detenu at Choudwar Circle Jail for a period of three months from the date of his detention, as appearing at Annexure-4. The petitioner further pleaded that when three months detention order was to expire on 11.02.2020, on 10.02.2020 the competent authority passed another order thereby directing detention of the detenu for six months from the date of detention under the Act instead of three months, as appearing at Annexure-5. During pendency of this petition, by filing additional affidavit the petitioner has also brought to the notice of this Court that while the matter stood thus, the competent authority has passed another order extending the detention of the petitioner from six months to nine months in exercise of power conferred by Section 12(1) read with Sections 3(3) and 13 of the Act communicated vide order dated 05.05.2020 appended to the additional affidavit at the instance of the petitioner.

(3.) All the three orders herein above have been assailed on the ground that extension of detention period from three months to six months involving the petitioner is completely unwarranted, as there has been no cogent and relevant material to show that there is any apprehension of breach of public peace and safety by the detenu. Further there has been also no compliance of the mandatory provision of Section 10 of the Act by not making further reference to the Advisory Board to ascertain and review before the extension orders being passed. The petitioner also alleged that though the provision mandates that the reference has to be made within three weeks, same has not been followed in the case of the petitioner. Further ground raised by the petitioner is that though a finding of fact was vested on the Advisory Board, which has to form an opinion on its satisfaction of existence of sufficient reason for preventive detention of the detenu and the Board has to ensure that by calling upon necessary material information to reach a conclusion of necessity of detention, it is claimed that in the present case, the Board has not undertaken such exercise and as such, the petitioner claims that the order of detention, vide Annexure-4 is not sustainable in the eye of law. On the same analogy, petitioner claimed that the further detention orders are also not getting any support of any sufficient opinion of the Advisory Board. Referring to the decision in the case of Additional Secretary to the Government of India and others vrs. Smt. Alka Subhash Gadia and another, 1992 Supp1 SCC 496, the petitioner claimed that there is no valid reason to detain the petitioner and such conduct of the Authority presently affects the liberty of the detenu enshrined under Article 21 of the Constitution of India. It is also alleged that there is also violation of the mandate under Articles 22(4) to (7), as it requires a clear sanction of law or sufficient opinion of the Advisory Board to detain any person to custody for a period of more than three months. The petitioner also challenged the order of detention under the premises of directives of the Hon?ble apex Court in view of Covid-19 pandemic situation where the Hon?ble apex Court has directed all the High Courts of the State to constitute high-power committee for granting interim bail to UT prisoners. The petitioner alleged that for the detention of the petitioner under the Act, the petitioner is unable to avail such scope.