SUDARSAN DASH ALIAS DABA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was in judicial custody in Circle Jail, Berhampur in B. Town P. S. Case No. 181 dated 6-11-2001 and he was trying for bail. The District Magistrate, Ganjam passed an order dated 31-12-2001 under Section 3(2) of the National Security Act, 1980 (in short, 'the Act') detaining him in custody with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The said order was served on the petitioner on 1-1-2002. The grounds of detention were served on the petitioner on 2-1-2002 and the petitioner was informed that he has a right to make a representation to the State Government in the Home Department/Central Government/Advisory Board against the order of detention. On 4-1-2002, the Government of Orissa in the Home Department approved the order of detention under sub-section (4) of Section 3 of the Act. The petitioner was informed by letter dated 11-1-2002 of the District Magistrate, Ganjam that his case has been referred to the Advisory Board under the Act by the Government in the Home Department and if he wished, he may make a representation to the Advisory Board through the Superintendent of Circle, Jail, Berhampur. By another communication dated 16-1-2002 the petitioner was informed by the District Magistrate, Ganjam that the Advisory Board has been pleased to fix the hearing of his case on 23-1-2002 at 4.00 p.m. in the Chamber of the Chairman of the Advisory Board in the High Court premises, Cuttack. On 22-1-2002 the petitioner addressed a representation to the Chairman of the Advisory Board through the Senior Superintendent of Circle Jail, Berhampur. The said representation dated 22-1-2002 was received by the District Magistrate, Ganjam at 7.45 p.m. on 22-1-2002. Parawise comments on the said representation of the petitioner dated 22-1-2002 was prepared and signed by the District Magistrate, Ganjam and sent to the Secretary, Advisory Board by letter dated 27-1-2002 of the District Magistrate, Ganjam. The Advisory Board submitted its report dated 30-1-2002 and the State Government confirmed the order of detention on 5-2-2002 under Section 12(1) of the Act. Aggrieved, the petitioner has filed this Habeas Corpus petition under Article 226 of the Constitution for quashing the order of detention and for directing the opp. parties to set the petitioner free from custody.

(2.) At the hearing, Mr. S. Ghosh, learned counsel for the petitioner submitted that the representation dated 22-1-2002 of the petitioner was not placed before the Advisory Board which met on 23-1-2002 as the counter-affidavit filed by the District Magistrate, Ganjam would show that the said representation along with parawise comments was sent to the Secretary, Advisory Board only on 27-1-2002. He further submitted that it has now been settled by the Supreme Court in Smt. Gracy v. State of Kerala, AIR 1991 SC 1090 that even if a representation is addressed to the Advisory Board, there is an obligation on the detaining authority under Article 22(5) of the Constitution to consider the said representation of the petitioner. He argued that for the period from 22-1-2002 to 1-5-2002, the petitioner had not filed any other representation against the order of detention and the only representation of the petitioner dated 22-1-2002 having not been considered by the State Government during the aforesaid period, the right of the petitioner for making a representation against the order of detention has been affected and the continued detention of the petitioner was liable to be quashed.

(3.) We have perused the records produced before us by Mr. S. K. Das, learned Addl. Government Advocate and we find from the said records that although the Advisory Board met on 23-1-2002 it did not immediately submit its report and only after the representation dated 22-1-2002 of the petitioner along with parawise comments on the said representation of the District Magistrate, Ganjam sent to the Advisory Board on 27-1-2002 was received, the Advisory Board submitted its report to the Government. Paragraph 2 of the said report of the Advisory Board is extracted herein below: