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1996 Supreme(Ori) 183
High Court Of Orissa
S. N. PHUKAN, ARIJIT PASAYAT
CHOUDHURY DEBASIS DASH - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 3869 Of 1996
Decided On : 12/05/1996
D.DEY, D.M.Dash, G.B.JENA, M.M.BASU, S.S.Mohapatra
Non-intimation to detenu of his right to make representation to the Central Government invalidates the detention order.
Headnote:
NATIONAL SECURITY ACT, 1980 - SECTION 3(2) - PUBLIC ORDER - LAW AND ORDER - DISTINCTION - REPRESENTATION - RIGHT TO - DETENU - INFORMATION ABOUT - CENTRAL GOVERNMENT - NON-INTIMATION - INVALIDATES DETENTION.
Fact of the Case:
A detention order was passed by the District Magistrate, Khurda on 6-2-1996 under Sub-Sec. (2) of S. 3 of the National Security Act, 1980, describing the activities of the detenu to have affected the public tranquillity. The detenu challenged the order on the grounds that the situations described did not constitute public order situations, there was unusual delay in disposing of the representation, and the constitutional protection mandating grant of adequate opportunity for representation was denied as the detenu was not informed about his right to make a representation to the Central Government.
Finding of the Court:
The court held that the incidents described in the grounds of detention were of a diabolic nature, ghastly to the core, and resulted in widespread fear psychosis. They were rightly described as public order situations. The court also held that there was a delay in disposal of the representation, as the details of the periods between the submission of the representation and its forwarding to the Home Department, and between the receipt of the representation in the Home Department and its rejection, were not furnished by the opposite parties. The court further held that the detenu was not informed about his right to make a representation to the Central Government, which invalidated the detention order.
Issues: 1. Whether the circumstances enumerated in the grounds of detention related to public order or law and order situations? 2. Whether there was delay in disposal of the representation? 3. Whether the constitutional protection mandating grant of adequate opportunity for representation was denied as the detenu was not informed about his right to make a representation to the Central Government?
Ratio Decidendi: 1. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. 2. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make representation against the detention, as imperated in Art. 22 (5) of the Constitution. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. 3. The right to make a representation against the detention order flows from Art. 22 (5) of the Constitution. Duty is cast on the detaining authority to inform a detenu about his right to make a representation to the Central Government. Failure to inform of his right invalidates the detention.
Final Decision: The writ application was allowed and the detenu was ordered to be set at liberty forthwith unless he was required to be in custody for any other purpose.
PASAYAT, J.
( 1 ) IN exercise of powers under Sub-Sec. (2) of S. 3 of the National Security Act, 1980 (in short, 'the Act') describing the activities of Choudhury Debasis Dash (hereinafter referred to as 'the detenu') to have affected the public tranquillity, and with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, an order of detention was passed by the District Magistrate, Khurda on 6-2-1996 which is under challenge in this writ of habeas corpus.
( 2 ) INDICATING nine incidents involving ghastly and cruel acts including murderous assaults, which disturbed even tempo of life in the society order of detention has been passed. Detenu made a representation before the State Government which has been rejected.
( 3 ) IN support of the writ application, Mr. M. M. Basu, the learned counsel has primarily taken three grounds, namely, (a) the situations described did not constitute the public order situations, and at best may constitute law and order situations; (b) there was unusual delay in disposing of the representation, and (c) the constitutional protection mandating grant of adequate opportunity for representation has been denied as the detenu was not informed about his right to make a representation to the Central Government. Mr. B. L. N. Swamy, learned Government Advocate submitted that a bare look at the incidents described goes to show the ghastly nature thereof, and its impact on the society at large. They have been rightly described to be public order situations. There has been no delay in disposal of the representation. The petitioner submitted his representation on 27-2-1996 which was rejected by the State Government on 20-3-1996. Various steps taken on different dates have been detailed. The representation was addressed to the Commissioner-cum-Secretary to Government of Orissa, Home Department/the Chairman, National Security Advisory Board, Orissa through the Superintendent, Special Jail, Bhubaneswar which was forwarded by the District Magistrate along with para-wise comments thereon to the Home Department on 8-3-1996. It is to be noted that 9-3-1996 and 10-3-1996 were public holidays. The representation was ultimately disposed of on 20-3-1996. There was no requirement to intimate the detenu about his option to make a representation to the Central Government. Reliance is placed on a decision of the Apex Court in Veeramani v. State of Tamil Nadu (1994) 2 Supreme Court Cases 337, more
particularly para 13 thereof.
( 4 ) FIRST controversy is whether the circumstances enumerated in the grounds of detention related to public order of law and order situations. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to askis : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? This question has to be faced in every case
