YASOBANTA SAHU ALIAS YASOBANTA KUMAR SAHU Vs. STATE OF ORISSA, REPRESENTED THROUGH SECRETARY TO GOVERNMENT OF ORISSA AND ORS.

JUDGEMENT

(1.) YASOBANTA Sahu alias Yasobanta Kumar Sahu (hereinafter referred to as the 'detenu') has questioned the order of detention passed by the District Magistrate, Sundargarh in purported exercise of power under Section 3(2) of the National Security Act, 1980 (in short, "the Act"). Main ground of attack to the order of detention is that there is unexplained delay in disposal of the representation made by the detenu questioning his detention. Subjective satisfaction of the detaining authority has been vitiated as the fact of acquittal in many cases which have been enumerated in the grounds of detention has not been considered and in fact it has been indicated as if those cases are pending. The detenu asked for Oriya translation of certain annexures which were refused, and the Central Government has not disposed of the representation made to it.

(2.) BEFORE we deal with the grounds of attack it is necessary to make a brief reference to the grounds of detention which according to the detaining authority necessitated the detention of detenu. From the grounds of detention it appears that the District Magistrate was of the view that the detenu indulged in terrorising the innocent public involving himself in a series of criminal cases like criminally intimidating the public creating a sense of terror in the locality being armed with deadly weapons like fire -arms, explosives etc. He was in the habit of attacking Government servants to fulfil his undue desires, as a result of which the general public of Sundargarh town were panic -stricken. A reference to ten cases has been made in which the detenu was alleged to have been involved. After attaining youth, the detenu started his heinous activities in and around Sundargarh town with his associates since 1988, managed to obtain Government works of various departments by terrorising Government officials and master -minded group rivalry disclosing him as "goonda" of the town. He also developed an organised and loyal cadre of anti -social youths and involved them in anti -social activities creating public disorder. After having become the President of Trekker Owners' Association, Sundargarh, he attempted to black -mail the district administration by stopping plying of trekkers without prior notice thereby paralysing the entire communication system, He believed that because of his control on the communication system, the law enforcement authorities as well as the district administration will think twice before touching him. After his arrest on 28.10.1996 in Sundargarh Town P.S. Case No. 116 of 1996, he asked his followers in presence of the police to stop plying of buses, trekkers etc. in Sundargarh indefinitely. All on a sudden, the entire traffic system came to a stand -still causing great difficulty to the general public as well as commuters from outside. He instigated the terrorised shop -keepers of the town to close their shops, which they had to do out of fear. The shops were reopened in the evening only after the police organised a Flag -March in the town with five platoons of Orissa Special Armed Police on 28.10.1996 to instil confidence among the public, but no vehicle could ply. At the time of arrest, he openly threatened that the police officers were under -estimating his powers and he could paralyse the life in Sundargarh town and break the normalcy until he. is bailed out from police custody, and asked his supporters to organise a befitting retaliation to the police action, and his supporters armed with deadly weapons went to market which created a sense of terror and insecurity among the general public and shop -keepers. Normalcy could be restored after the police Flag -marched in the town.

(3.) THE requisite subjective satisfaction of the detaining authority, the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighed the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the order of detention. Where at the time when the detaining authority passed the detention order the vital fact, namely, the acquittals of the detenu in some of the cases described in the grounds of detention had not been brought to his notice and on the other hand they were withheld and the detaining authority was given to understand that the matter was pending trial, the non -placing of the material fact - namely, the acquittal of detenu resulting in non -application of mind of the detaining authority to the said fact vitiated the requisite subject satisfaction rendering the detention order invalid. (See Dharamdas Shamlal Agarwal v. The Police Commissioner and Anr. : : AIR 1989 SC 1282. However, even if a criminal prosecution fails, and an order of detention is then made, it would not invalidate the order of detention because the purpose of preventive detention being different from conviction and punishment and subjective satisfaction being necessary in the former while proof beyond reasonable doubt being necessary in the latter, the order of detention would not be bad merely because the criminal prosecution has failed. (See Shiv Ratan Makim v. Union of India : : AIR 1986 SC 610, Mohd. Subrati v. State of West Bengal : : AIR 1973 SC 207. The question of acquittal is not material, but what is material is the question of non -placing of material and vital fact of acquittal which if had been placed, would have influenced the minds of the detaining authority one way or the other. The question is whether the circumstances could possibly have an impact on the decision; and whether or not to make an order of detention.