SARAS KUMAR MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) The order of detention dated 6th September, 1994, which is challenged in this Habeas Corpus Writ application, has been passed by the District Magistrate, Cuttack, in exercise of powers conferred by sub-Section (2) of Section 3 of the National Security Act, 1980 (in short 'the Act') with a view to prevent Kunumnia alias Sisir Mohanty (hereinafter referred to as 'detenu') from acting in any manner prejudicial to the maintenance of public order. Aforesaid detenu was directed to be interned in the Circle Jail, Choudwar in pursuance of the said mittimus. Order of detention in Annexure-1 to the writ application. The application has been filed by the younger brother of the detenu.

(2.) Two points essentially have been urged in support of this writ application. First it is submitted that the detenu was in judicial custody and without any satisfaction being reached that the detenu was likely to be released on bail or to be ordered for release, the order of detention has been passed. Secondly, it is submitted that there has been unexclaimed delay in disposal of the representation filed by the detenu. The stand of detaining authority is that the detaining authority was aware of the fact that detenu was in custody. Since it was apprehended that detenu might be released on bail and might indulge in further anti-social activities, the order of detention was passed. So far as the delay aspect is concerned, it is submitted that there is no hard and fast rule as to the period within which the representation is to be disposed of. Nevertheless the matter has been dealt with utmost expedition by the concerned authorities.

(3.) A preventive detention is not punitive but precautionary measure. The object is not to punish a man for having done something but to prevent and intercept him before he does it again. No offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See Rex v. Halliday 1917 AC 260 : 86 LJKB 1119, Mr. Kubic Dariusz v. Union of India, AIR 1990 SC 605.) But at the same time, a person's greatest of human freedoms, i. e. personal liberty is deprived, and therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguards, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meaning are the true justifications for the laws of preventive detention. Sometimes the deprivation of personal liberty of individuals becomes imperative to protect the society from denigrating. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of supplies of commodies necessary for the community can provide grounds for a satisfaction that similar propensities on the part of the person concerned are likely and there is a possible future manifestation. This jurisdiction has been described a as jurisdiction of suspicion; and the compulsions to preserve the values of freedom, of a democratic society and of social order sometimes merit the curtailment of the individual liberty. (See AIR 1989 SC 364 : (1989 Cri LJ 991) Ayya alias Ayub v. State of U. P.) To lose our country by a scrupulous adherence to the written law said Thomas Jefferson would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons State's security and national economic discipline as a necessary avail has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against the detention, as imperated in Article 22(5) of the Constitution. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective keeping in view 'the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of the judicial vigilance that is needed was aptly described in the following words in Thomas Pelhan Gales's case, 1881 (6) QandD 376.