KAPA Vs. SATE OF ODISHA AND ORS.

JUDGEMENT

(1.) The petitioner-Kapa @ Somanath Sahoo in the present writ application in the nature of habeas corpus, is a detenue under the National Security Act, 1980 and has sought to challenge his detention on various grounds and, in particular, on the ground that "the grounds of detention" on the basis of which the satisfaction of the detaining authority is to be arrived at, was not in existence on the date when "the order of detention" was passed and served upon the petitioner-detenue. Pursuant to direction issued by this Court in course of hearing of this case, the original file of the detaining authority was called for and on verification of the same, it is found that while "the order of detention" is dated 26.09.2014 (Annexure-1), "the grounds of detention" was served on the petitioner on 29.09.2014 and from the records of the detaining authority, it is seen that "the grounds of detention" were framed on 29.09.2014.

(2.) Mr. Sarangi, learned counsel for the petitioner submitted that it is well settled by judicial precedents that "the grounds of detention" must be in existence when "the order of detention" is made. It is submitted that in the case at hand, "the grounds of detention" were not in existence on the date on which "the order of detention" was passed i.e. on 26.09.2014 and only came into existence on later date i.e. on 29.09.2014. Consequently, the impugned order is clearly violative of Article 22(5) of the Constitution of India, which is quoted hereunder:

(3.) In support of his contention, learned counsel for the petitioner placed reliance on the Constitutional Bench judgment rendered by the Hon'ble Supreme Court in the case of The State of Bombay v. Atma Ram Shridhar Vaidya, 1951 AIR(SC) 157. In the said judgment, the Hon'ble Supreme Court dealt with the scope of Article 22(5) and came to the following findings: