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High Court Of Orissa
H. L. AGRAWAL, S. C. MOHAPATRA
ANNUA - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. J. C. 2043 Of 1987
Decided On : 08/21/1987
NATIONAL SECURITY ACT, 1980 - SECTION 3 - DETENTION - PUBLIC ORDER - DELAY IN DISPOSAL OF REPRESENTATION - DOUBLE JEOPARDY - FULL TERM DETENTION - VALIDITY.
Fact of the Case:
The petitioner challenged his detention order under the National Security Act, 1980, on various grounds, including that the grounds of detention did not make out a case of disturbance of "public order," that there was an abnormal delay in disposing of his representation, that criminal prosecution and detention under the Act amounted to double jeopardy, and that the order for his detention for the full term of 12 months showed non-application of mind.
Finding of the Court:
The court held that the petitioner's overt acts, such as chasing a shop-keeper on a public thoroughfare by brandishing a sword and threatening the intervener with dire consequences, were sufficient to create terror and disturb the even tempo of life of the community at large. The court also held that the delay in disposing of the petitioner's representation was not prejudicial to him as it did not contain any material for consideration save and except a bare denial of his involvement and false implication. The court further held that the principles of double jeopardy did not apply as the purposes and nature of the proceedings under the Act and the criminal prosecution were entirely different. Finally, the court held that the appropriate Government had the discretion to confirm the detention order for such period as it thought fit, and that there was no obligation to state reasons for fixing the period of detention for any individual detenu.
Issues: 1. Whether the grounds of detention made out a case of disturbance of "public order"? 2. Whether there was an abnormal delay in disposing of the petitioner's representation? 3. Whether criminal prosecution and detention under the Act amounted to double jeopardy? 4. Whether the order for the petitioner's detention for the full term of 12 months showed non-application of mind?
Ratio Decidendi: 1. The court held that the petitioner's overt acts, such as chasing a shop-keeper on a public thoroughfare by brandishing a sword and threatening the intervener with dire consequences, were sufficient to create terror and disturb the even tempo of life of the community at large. The court distinguished this case from a previous case where the only overt act attributed to the petitioner was that he had abused the shop-keeper, holding that the main allegations were made only against the petitioner in the present case. 2. The court held that the delay in disposing of the petitioner's representation was not prejudicial to him as it did not contain any material for consideration save and except a bare denial of his involvement and false implication. The court also noted that the State Government had tried to explain the time consumed in disposal of the petitioner's representation at different stages, but that it did not appear to be satisfactory. 3. The court held that the principles of double jeopardy did not apply as the purposes and nature of the proceedings under the Act and the criminal prosecution were entirely different. The court overruled a previous decision of the Supreme Court which had held that the detaining authority could not take recourse to two parallel and simultaneous proceedings nor take recourse to a ground which was the subject-matter of a criminal trial. 4. The court held that the appropriate Government had the discretion to confirm the detention order for such period as it thought fit, and that there was no obligation to state reasons for fixing the period of detention for any individual detenu. The court distinguished this case from a previous decision of the Gauhati High Court which had held that the direction for a full term detention of 12 months indicated non-application of the mind of the appropriate authority.
Final Decision: The court dismissed the petitioner's writ application, holding that all the points urged on his behalf had failed.
AGRAWAL, J.
( 1 ) THE petitioner by this writ of habeas corpus has challenged the order of his detention dt. 8-10-1986 passed by the District Magistrate, Cuttack (O. P. No. 3) under S. 3 of the National Security Act, 1980 (for short 'the Act') on various grounds. Pursuant to the impugned order, the petitioner was arrested on 10-11-1986 and lodged in the Cuttack Circle jail. The order of detention was approved by the State Government on 20-10-1986 under Sub-Sec. (4) of S. 3 of the Act. The grounds of the petitioner's detention along with the relative documents were served on the petitioner on 14-11-1986 vide Annexure-4.
( 2 ) THE petitioner also filed a representation on 28-11-1986, but the State Government confirmed the order of detention under S. 12 (1) of the Act vide Annexure-5 dt. 29-12-1986 and directed that the petitioner would continue in detention for a period of 12 months. His representation was also rejected by order dt. 9-2-1987 (Annexure-6 ).
( 3 ) THE petitioner has challenged the order of his detention mainly on the following grounds :- (I) The grounds of detention did not make out any case of disturbance of "public order". (ii) Abnormal delay in disposing of his representation. (iii) Criminal prosecution as well as his detention under the provisions of the Act attracted the principle of double jeopardy and, therefore, the order of detention was invalid. (iv) The order for his detention for the full term of 12 months showed non-application of mind and, therefore, the order in Annexure 5 was bad in law.
( 4 ) A counter-affidavit has been filed by O. P. No. 3, the District Magistrate, Cuttack, in which it has been stated that the petitioner's representation "nowhere mentions about his illegal and unjustified detention "and" there was no specific prayer for his release from custody". O. P. No. 3 has controverted all the arguments raised by the petitioner in the writ application including the ground of delay in disposal of the representation and supported the impugned orders. By a further affidavit filed on 31-7-1987, the petitioner has filed the bail order passed by the Additional Sessions Judge, Cuttack, to show that the criminal court did not find the allegations levelled against him so serious to refuse his prayer for bail. An additional affidavit has also been filed on behalf of the State giving details of the movements of the petitioner's representation from stage to stage for its disposal.
( 5 ) I shall now take up for consideration the points raised by the petitioner indicated earlier one by one.
( 6 ) POINT No. 1 :- The first point urged by the petitioner is that the allegations made in the grounds of his detention did not attract the question of maintenance of public order and at best could relate only to law and order. In order to appreciate the point, it is necessary to see the allegations in the grounds. According to the allegations, at about 9. 00 p. m. on 2-9-1986, the petitioner along with two others, namely, Biswanath Misra and Golia alias Ganeswar Rout, suddenly entered the shop of one Ashok Kumar Rout in Raisunguda bazar while he was sitting there with some customers who had come to take the Oriya daily newspaper 'samaj' and abused him in obscene language, assaulted him, broke the door of the shop and the glass panes of the show-case and removed a packet of newspapers 100 bottles of honey and Rs. 300/- in cash from the almirah. It is further alleged that when Upendra Rout, the father of Ashok Kumar Rout, ran for his life, the petitioner chased him brandishing his sword to kill him and when the shop-keepers of the area tried to intervene, the petitioner terrorised them by his sword and threatened to cut them into pieces. As a result, the people of the area ran away out of fear, the shop-keepers closed down their shops, the nearby inhabitants being panic stricken also closed their doors, the public thoroughfare was completely paralysed and the public peace was completely disturbed.
( 7 ) THE d
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