BISHI KESHAN PRADHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is habeas corpus petition filed by the petitioner for quashing the order of detention dated 10/10/2002 passed by the District Magistrate, Nayagarh under Sub-section (2) of Section 3 of the National Security Act, 1980 (for short Act, 1980).

(2.) The brief facts relevant for the purpose of disposal of this writ application are that the petitioner had been arrested and was in intermediary judicial custody in Dasapalla Sub-jail in connection with Khandapara P.S. Case No. 123 dated 1/12/2001 under Sections 147, 148, 323, 326, 354, 307, 302, 109, 139, IPC/25/27 Arms Act and Khandapara P.S. Case No. 63 dated 11/9/2002 under Sections 341, 294, 353, 506, 307, 34, IPC/25/27 Arms Act. While he was in custody, the impugned order of detention dated 10/10/2002 was passed by the District Magistrate, Nayagarh. The grounds of detention were served on the petitioner by communication dated 10/10/2002 of the District Magistrate, Nayagarh. The Government of Orissa in Home Department approved the said order of detention by order dated 20/9/2002. The petitioner submitted a representation dated 26/10/2002 against the said order of detention, but the same was rejected by the State Government and communicated to the petitioner by letter dated 6/11/2002. The detention of the petitioner was referred to the Advisory Board and on the opinion of the Advisory Board, order of detention was confirmed by order dated 20/11/ 2002 of the Government of Orissa in Home Department. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution of India with a prayer to quash the same.

(3.) Mr. S.P. Mishra, learned counsel for the petitioner submitted that the petitioner has several grounds in the writ petition in support of his prayer for quashing the said order of detention. He further submitted that it is now well settled by the Apex Court in a series of decisions that when the detenu is in custody, the detaining authority before passing the order of detention must show his awareness that he is in custody and must record a satisfaction on the basis of reliable materials that there is possibility of the petitioner being released on bail and on being so released, he would in all probability indulge in activities prejudicial to public order. Mr. Mishra submitted that although the District Magistrate has shown his awareness of the fact in the order of detention that the petitioner was in custody, there is nothing either in the order of detention or in the grounds of detention to show that the District Magistrate had reason to believe on the basis of reliable materials placed before him that there was possibility of the petitioner being released on bail and further that on being so released, he would be in all probability indulge in activities prejudicial to the public order. In support of the aforesaid contention, Mr. Mishra, relied upon the decision of the Supreme Court in Kumarunnissa v. Union of India and another. He also cited the decision of the Supreme Court in Suiya Prakash Sharma v. State of U.P. and others, Mr. Mishra further argued that the impugned order of detention is also liable to be set aside on the ground that there was delay on the part of the authorities in forwarding the representation to the State Government for expeditious disposal affecting the right of the petitioner under Article 22 of the Constitution for making effective representation against the grounds of detention. He finally argued that a reading of the grounds of detention would show that the alleged incidents in which the petitioner is said to have been involved were all incidents unrelated to the maintenance of public order and were only individual offences for which the detention order under the Act, 1980 was not necessary and the general law of the land was sufficient.