Partial Withdrawal Of Detention Grounds By Detaining Authority Violates Article 22(5) Of Constitution: Orissa High Court
The Orissa High Court allowed a Writ Petition of a detenu against the Detention Order, seeking a direction to the authorities to set him at liberty.
The Orissa High Court held that the partial withdrawal of grounds of detention by not supplying all the basic facts and materials relied upon by the Detaining Authority to the detenu is violative of Article 22(5) of the Constitution of India.
The Court held thus in a Writ Petition filed by a detenu against the Detention Order, seeking a direction to the authorities to set him at liberty.
A Division Bench comprising Justice S.K. Sahoo and Justice S.S. Mishra observed, “… the Detaining Authority cannot be said to have given sufficient opportunity to the petitioner to make an effective representation, in other words, the petitioner is deprived of making an effective representation against the order of detention in compliance to the provisions of Article 22(5) of the Constitution of India read with section 6 of the 1988 Act. The partial withdrawal of grounds of detention by not supplying all the basic facts and materials relied upon by the Detaining Authority to the petitioner shall entail the very detention a nullity for being violative of Article 22(5) of the Constitution of India.”
The Bench remarked that the liberty makes the worth of a human being and to frustrate Article 21 of the Constitution of India by relying on any formal adjectival statute, however, flimsy or fantastic its provisions be, is to rob what the Constitution treasures.
“Procedure which deals with modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself”, it added.
Advocate Janmejaya Katikia appeared on behalf of the Petitioner while Deputy Solicitor General of India (DSGI) P.K. Parhi and Senior Panel Counsel (Advocate) S.S. Kashyap appeared on behalf of the Opposite Parties.
Facts of the Case
The Central Government in exercise of the power conferred under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), passed an Order of Detention, detaining the Petitioner-detenu with a view to prevent him from engaging in alleged illicit trafficking of narcotic drugs and psychotropic substances in future. The detenu was directed to be detained and kept in Circle Jail, Choudwar, Cuttack. The Detention Order with grounds of detention was served on the detenu.
On receipt of the Detention Order, the detenu submitted a representation to the Joint Secretary (PITNDPS), Government of India, Ministry of Finance, Department of Revenue. Thereafter, the matter was placed before the PITNDPS State Advisory Board, Odisha which was also of the opinion that sufficient cause was made out for the detenu’s detention. The Central Government by virtue of sub-section (f) of Section 9 of the PITNDPS Act, confirmed the said detention, thereby directing to detain the detenu for a period of one year. Hence, the detenu was before the High Court.
Reasoning
The High Court after hearing the contentions of the counsel, noted, “The petitioner was kept in darkness that the Detaining Authority has arrived at its subjective satisfaction also basing on those five cases and therefore, he could not have asked for the documents of such cases to file the representation. The conduct of the Authority in debarring the petitioner to make an effective representation violates the constitutional safeguards enshrined under Article 22 (5) of the Constitution of India.”
The Court added that the Detention Order can be held to be invalid as those five cases which could have influenced the Detaining Authority in arriving at its subjective satisfaction has not been mentioned in the grounds of detention nor communicated to the detenu.
“Law is well settled that a Court cannot go into correctness or otherwise of the facts stated or allegations leveled in the grounds in support of detention. A Court of Law is the last appropriate forum to investigate into circumstances of suspicion on which such anticipatory action must be largely based. That, however, does not mean that the subjective satisfaction of Detaining Authority is wholly immune from judicial reviewability. By judicial decisions, Courts have carved out areas, though limited, within which the validity of subjective satisfaction can be tested judicially”, it reiterated.
The Court further emphasised that the Court must apply its mind as to whether the Detaining Authority has scrupulously followed the procedures and any infraction or procedural lapses which ultimately result in violation of the fundamental right guaranteed under Article 21 of the Constitution of India, will lead to setting aside the said Order.
“Subjective satisfaction being a condition precedent for the exercise of the power of preventive detention conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad”, it said.
The Court also took note of the fact that the Detaining Authority has recorded its subjective satisfaction not only on the grounds communicated to the detenu, but there were some other facts and relevant materials before the Authority to arrive at its satisfaction. It said that the involvement of the detenu in eight cases were before the Detaining Authority which are likely to have influenced it in arriving at its subjective satisfaction, but the same were not mentioned in the grounds of detention.
“Though the Detaining Authority mentioned in the grounds of detention to have taken into account the involvement of the petitioner only in three criminal cases from 2017 to 2024, but we find that the subjective satisfaction is reached on the basis of eight criminal cases against the petitioner instituted from 2005 to 2024. The Detaining Authority is not justified in taking into account involvement of the petitioner in other five stale cases as spelt out in the counter affidavit when the details of such cases have not been mentioned in the grounds of detention”, it observed.
Accordingly, the High Court allowed the Petition and set aside the Detention Order.
Cause Title- Nilakantha Pradhan v. Government of India & Others (Case Number: WPCRL No. 129 of 2024)
Appearance:
Petitioner: Advocate Janmejaya Katikia
Opposite Parties: DSGI P.K. Parhi, Senior Panel Counsel S.S. Kashyap, and Additional Government Advocate (AGA) P.S. Nayak.
