MD ABDUL ZAHUR Vs. STATE OF ORISSA

JUDGEMENT

(1.) In this writ application filed under Article 226 of the Constitution of India the petitioner Md. Abdul Zahur who is brother of the detenu Tito alias Sayed Usman Alli has prayed for quashing the order passed by the Dist. Magistrate, Kendrapara on 15 -12 -1994 (Annexure -1) directing detention of the detenu under Section 3(2) of the National Security Act., 1980 (hereinafter referred to as 'the Act') and the order passed by the State Govt. on 7 -2 -1995 (Annexure -4)confirming the detention order under Section 12(1) of the Act. The ground of detention dated 19 -12 -1994 (Annexure -2) shows that for the reasons and on the grounds stated therein the Dist. Magistrate was satisfied that, with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, the detenu should be detained under the Act. The main grounds of challenge against the detention order are that the order has been passed by the District Magistrate without due application of mind, inasmuch as, some of the cases mentioned in the grounds of detention had ended in acquittal of the detenu long before the detention order was passed; that many of the documents enclosed to the grounds of detention are in English language which the detenu can neither read nor write and therefore he has been denied the opportunity of making an effective representation; that the detention order is vitiated due to non -compliance with the provisions in Section 3(5) and Section 14 of the Act as the State Govt. did not intimate the Central Govt. about the detention orders within the statutory period and the Central Govt. did not consider whether the detention order should be revoked under Section 14 and that even accepting the allegations made against the detenu to be true the case is one of law and order and not of public order. The State of Orissa represented by the Secretary. Department of Home Affairs, the Union of India, represented by the Secretary, Department of Home Affairs, New Delhi, the District Magistrate, Kendrapara and the Superintendent, Circle Jail, Choudwar are cited as opposite parties in the writ application.

(2.) A counter affidavit has been filed by the Under -Secretary to Govt. of Orissa, Home Department. The other opposite parties including the detaining authority, District Magistrate, Kendrapara did not file any counter affidavit. When the arguments were about to be closed the learned Addl. Govt. Advocate filed an affidavit by the Officer -in -charge of the Judicial Section of Kendrapara without any -supporting document. In the counter affidavits the allegations made and the contentions raised in the writ petition are denied in a general manner. It is asserted that on proper consideration of the relevant materials the District Magistrate was satisfied that the detention of the detenu is obsolutely necessary to prevent him from acting in any manner prejudicial to public order, as such the detention order was legal and valid.

(3.) THE learned Addl. Govt. Advocate on the other hand submitted that from the grounds of detention it is clear that the District Magistrate was aware of the position that only some of the criminal cases mentioned in the order were subjudice while the remaining cases had been disposed of. We are not inclined to accept this contention for the reason that the District Magistrate has not personally filed any affidavit stating whether he was aware of the acquittal of the detenu in the case or not. In the absence of his affidavit and in the absence of any other contemporaneous materials to show that he had knowledge of the relevant fact, the contention of Shri Mohanty that the District Magistrate was not aware of this fact while arriving at his subjective satisfaction is to be accepted.