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SUPREME COURT OF INDIA
P. JAGANMOHAN REDDY AND D.G. PALEKAR, JJ.
B. Sundara Rao and others - Petitioners
Versus
State of Orissa - Respondent
Writ Petn. No. 170 of 1971.
Decided On : 29-1-1971
Arms Act – Section 25 – Indian Penal Code, 1860 – Section 120-B – Orissa Preventive Detention Act,1970 – Sections 11, 3, 10 – Criminal Procedure Code, 1973 – Sections 151, 107 – Habeas Corpus – Order of Detention – Illegal Detention – Petitioners have applied to this court for a writ in nature of habeas corpus alleging that they have been illegally detained – Petitioners along with some others were arrested in January, 1969 on a charge of conspiracy under sections 120-B read with IPC and 25 (f) of Arms Act. – Case came for hearing before Assistant Sessions Judge – Petitioners were acquitted – They were, however arrested by local police at 5.30 P. M. on the same day under section 151 Criminal Procedure Code and produced before Magistrate on next day – Since proceedings under section 107 Criminal Procedure Code were contemplated, they appear to have been remanded to jail custody. – They were served with an Order passed by District Magistrate, detaining them under section 3 (2) of Orissa Preventive Detention Act, 1970 – Each one of petitioners was served with a separate order of detention – Held, Appropriate authority is bound to give an opportunity to detenu to make a representation and to consider representation as early as possible – Consideration of representation of detenu by appropriate authority is entirely independent of any action by Advisory Board including consideration of representation of detenue by Advisory Board – There should not be any delay in matter of consideration and fourthly appropriate Government is to exercise its opinion and judgment on representation before sending case along with detenus representation to Advisory Board – It was open to Government to consider representation as soon as it was received by Government in spite of the fact that six days earlier it had made the reference to Advisory Board. – Secondly having regard to second principle referred to above Government cannot absolve itself from considering the representation even at a later stage. – Court have seen that after Advisory Boards opinion is received State Government is bound under Section 11 to consider whether it should confirm the detention order and continue the detention of the person concerned. – Since Government had not considered representation as soon as it was received nor even at time of the confirmation and continuation of detention, Government had failed in one of its obligatory duties with regard to detention of prisoners and, therefore, for that reason also detention becomes illegal. – Detention of petitioners must be declared to be illegal – Petition Allowed
JUDGMENT :
Palekar, J. - The petitioners (1) B. Sundar Rao, (2) P. Appala Swamy (3) Raghunath Patro, (4) Budhi Ramalingam and (5) Kidari Dandasi have applied to this court for a writ in the nature of habeas corpus alleging that they have been illegally detained. The petitioners along with some others were arrested in January, 1969 on a charge of conspiracy under sections 120-B read with IPC and 25 (f) of Arms Act. The case came for hearing before the Assistant Sessions Judge, Koraput, Jaipur. On 17-4-1971 the petitioners were acquitted. They were, however arrested by the local police at 5.30 P. M. on the same day under section 151 Criminal Procedure Code and produced before the Magistrate on the next day i.e. 18-4-1971. Since proceedings under section 107 Criminal Procedure Code were contemplated, they appear to have been remanded to jail custody. On 20-4-1971 they were served with an Order dated 19-4-1971 passed by the District Magistrate, Koraput detaining them under section 3 (2) of the Orissa Preventive Detention Act,1970. Each one of the petitioners was served with a separate order of detention. The order of detention so far as it is relevant is as follows:
Simultaneously, each one of the petitioners was served the grounds on which the detention had been made. The grounds furnished to the petitioners are the same in every case and they are 22 in number. On a perusal of these grounds which are imprecisely and inartistically worded the District Magistrate appears to convey to the detenus that they were Naxalites who, in association with other Naxalites, both above-ground and under-ground, and in collaboration with those from beyond the limits of the State were indulging in the following activities:
2. dacoities and looting of the richer section of the people.
3. overpowering the Police and snatching fire-arms from them.
4. spreading through their henchmen and supporters threats to witnesses and others that after their acquittal in the conspiracy case in which they were under-trial prisoners they would revenge themselves on the and
5. carrying on a campaign of an arms struggle and inciting the poorer sections of the population.
Since the above activities were prejudicial to the maintenance of public order, the District Magistrate was satisfied that it was necessary to detain them.
2. After the present petition was filed further grounds were permitted to be filed. Affidavits-in-reply supporting the Order of detention were filed on behalf of the State.
3. Section 3(2) of the Orissa Preventive Detention Act, 1970 provides:
Sub-section (1) deals with the power of the State Government to make orders of detention and it is as follows:
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