NSA Detention- Legal Obligation In Such Cases Must Be Discharged With 'Great Sense Of Responsibility': Orissa High Court

The Bench of Justice S. K. Panigrahi and Justice Sanju Panda observed,

"The exercise of that power of preventive detention must be with proper circumspection and due care. In a regime of constitutional governance, it requires the understanding between those who exercise power and the people over whom or in respect of whom such power is exercised."

The matter before the Court

A Criminal Writ Petition was filed by the petitioner (Sk.Mabud) challenging the order of detention dated 12.02.2020 passed by the District Magistrate, Balasore under Section 3 (2) of the National Security Act, 1980.

It was argued by him that the detaining authority, while presenting the report against the detenue didn't disclose the basic facts, material particulars which led to passing of an order of detention.

It was further stated that he was not disclosed as to what was the basis and circumstances which led the District Magistrate to come to a conclusion that the detenue was terrorizing the innocent general public.

It was also argued that the cases relied upon by the detaining authority are cases affecting individuals and none of them in any manner affects the tempo of life.

On the other hand, Counsel for the Opposite Party submitted that there were chances of the petitioner getting bail in Sahadevkhunta P.S. Case No.319 and there was a chance of resumption of the antisocial activities after his release.

Court's Observations

The Court observed that Preventive detention is not to punish a person for something he has done but to prevent him from doing it. Therefore, the Court said,

"Since the detention order passed on the allegation of involvement of the detenu in a number of criminal cases without disclosing any material in the report of the Superintendent of Police or materials available before the Detaining Authority that there is likelihood of breach of public order, the detention order cannot be sustained."

The Court also noted that the detaining authority, at the time of passing the order of detention, as well as the State Government while confirming the same, "should take into consideration the nature of allegations and offences alleged in the grounds of detention to examine whether the same relates to 'public order' and the normal law cannot take care of such offences and that the acts of the detenu mentioned in the grounds of detention are prejudicial to maintenance of public order or they only relate to 'law and order".

With regard to the present case, the Court noted that the District Magistrate had relied on a list of 20 cases provided by the Superintendent of Police while ordering for detention.

However, the Court observed that he failed to take into consideration that out of the 14 cognizable cases, there are 6 cases which have not yet been charge sheeted yet including the one in which the SP is apprehensive that the petitioner may receive bail.

Further, the Court said,

"The details of the alleged bail application have not been provided in the order of detention, ground of detention or in the application of the Superintendent of Police, Balasore. Further, no details have been given about the alleged similar cases in which bail was allegedly granted by the concerned Court. The only mention regarding bail is in the letter dated 26.12.2019 by the Superintendent of Police, Balasore wherein he had reported that it has come to his knowledge that the petitioner has arranged for his bail."

Lastly, the Court said

"This statement is entirely ambiguous and this Court cannot rely on the same. Considering the above submissions, we are of the view that this Court should not allow the petitioner-detenu to be kept in custody on the basis of order of detention which is illegal, bad in law hence amounts to illegal custody of the petitioner detenu."

The Writ Petition was thus, allowed and the order of detention approved by the State Government on 20.02.2020 was quashed.

In related news, while setting free a person (Javed Siddiqui) arrested under the stringent National Security Act (NSA), the Allahabad High Court on Monday (07^th December) observed,

"Where the law confers extra-ordinary power on the executive to detain a person without recourse to the ordinary law of the land and to trial by courts, such a law has to be strictly construed and the executive must exercise the power with extreme care."

Advocates Debasis Sarangi, B. S. Dasparida, S.K.Dash, S. Mohapatra, K. Mohanty and M.K. Agrawala appeared on behalf of the Petitioner.

Case title - Sk.Mabud @ Mamud @ Madud v. State of Odisha & another [W.P.(CRL.) NO.82 OF 2020]

Click Here To Download Order