JAGANNATH PRADHAN Vs. DISTRICT MAGISTRATE AND TWO ORS.

JUDGEMENT

(1.) IN this case orders have already been passed on 31 -1 -1984 in Court directing the release of the Petitioner. The reasoned judgment has not been passed on that date and it was indicated in the said order that it would follow in separate sheet. The reasoned judgment is as follows:

(2.) THE opp. parties namely the District Magistrate, Puri, State of Orissa represented through Secretary, Home Department and the Jailor, Khurda entered appearance through the counsel for the State and a counter affidavit on behalf of the opp. party No. 1 has been filed.

(3.) IT is, therefore, clear from the counter affidavit filed in this case that even though in Annexure -2 solitary instance was said to be the ground of detention the counter affidavit enumerates various other grounds for which the recourse to the National Security Act was taken by the authorities empowered under the Act. In a decision reported in Khudiram Das v. The State of West Bengal and Ors. : A.I.R. 1975 S.C. 550, their Lordships considered the case of preventive detention under Sub -sections (1) and (2) of Section 3 of the Maintenance of Internal Security Act, 1971. In that context their Lordships have examined the scope of the provisions contained in Clause (5) of Article 22 of the Constitution. In the opinion of their Lordships the grounds under Article 22(5) of the Constitution mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention. It has been laid down that nothing less than all the' basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu As already stated the provisions in Section 8 of the Act substantially reproduce the provisions of Clauses (5) and (6) of the Article 22 of the Constitution. Therefore, the same interpretation as was made of the provisions of Article 22 Clauses (5) and (6) is available to be made so far as Section 8 of the Act is concerned. The privilege of Sub -section (2) of Section 8 as also in Clause (6) of Article 22 of the Constitution should be sparingly exercised only when it is considered by the detaining authority to be in the public interest. From the counter affidavit of the detaining authority it is seen that the facts that there were a number of criminal cases against the detenu and that he had been booked for series of anti -social activities, were taken into consideration for detention of the Petitioner in exercise of the powers under Section 3 of the Act. The communication made to the detenu under Section 8 of the Act does not disclose all the basic facts on which the order of detention was based. Consequently the detenu has been deprived of making a proper representation. If any of the grounds which weighed with the detaining authority before passing order of detention, have not been communicated under Section 8 of the Act, the detention order must be held to be invalid. In such event, it is not possible to assess as to in what manner the said undisclosed grounds weighed with the authorities and contributed to provide the satisfaction that was necessary to detain the detenu with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.