- Apprentice Lawyer
While quashing an order of detention under the National Security Act, 1980 (NSA) last week, the Orissa High Court has made some crucial observations regarding preventive detention law. (Mabud v. State of Odisha)
The Division Bench of Justice SK Panigrahi and Sanju Panda underscored the importance of exercising proper circumspection and due care before ordering a person’s detention.
Additionally, the authority detaining a person must be satisfied that the person poses a threat to public order. Though the authority’s satisfaction is subjective, it would have to be based on objective facts, the Court emphasised.
The Court added that the offences or allegations in the detaining order should relate to ‘public order’ as opposed to ‘law and order’, and were to apply only to those offences normal law could not take care of.
"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 Bench said.
Further, there has to be a nexus between the offences alleged against the detenu and the grounds of his detention. The Bench recounted that the Court has repeatedly insisted on preventive detention procedure being fair and strictly observed.
“The detaining authorities should exercise the privileges sparingly and ‘in those cases only where there is full satisfaction’”, the Bench said.
The Bench was hearing a petition filed by one Mabud assailing his detention under the NSA.
The detention order was passed after the Superintendent of Police in the district of Balasore wrote to the Balasore District Magistrate, accusing him of causing terror the district of Balasore and the area bordering the State of West Bengal.
Emphasizing that the man is a dreaded criminal whose activities put the locals in constant fear, the Superintendent listed twenty cases against him, out of which he was connected to 14 cognizable offences.
Apprehending Mabud’s release on bail in one of the cases against him, the Superintendent of Police wrote a letter to the District Magistrate. Agreeing with the superintendent, the District Magistrate concluded that "it was clear that the petitioner is a die-hard anti-social and criminal who has scanty regard for the law of the land."
Basing his order on thorough perusal of the criminal cases against Mabud, the District Magistrate ordered he be placed in preventive detention on February 12 (with the grounds being provided to the petitioner on February 16). The detention order was subsequently confirmed by the state government and the Advisory Board.
The petitioner argued that:
The Superintendent and the District Magistrate were relying on stale cases in many of which he had been acquitted. These cases were against individuals, it was stated additionally.
There was no material to evidence application of mind or facts that led to a conclusion that Mabud was terrorising the general public.
The grounds were served on the petitioner four days after the detention order, which indicated the order of detention was passed without considering the materials of record.
There was no opportunity provided to the petitioner to make a representation, and no details about representation or challenge were communicated to him.
On the other hand, the State asserted that the grounds of Mabud’s detention had been given to him well within the statutory time of fifteen days.
It added that the cases against the petitioner showed that his activities were prejudicial to the public at large. The State also contended that the detaining authority was "compelled to resort to the NSA after the normal law of the land failed to curb the anti-social activities of the petitioner."
The Court took issue with the fact that the detaining authority relied on past cases Mabud had been accused in, rather than any material that showed that there is likelihood of breach of public order.
Finding that the detaining authority did not apply its mind, the Court pointed out that even in the cases relied on, there were six cases against the petitioner in which he had not even been charge-sheeted. Further, none of Mabud’s acquittals were brought to the notice of the District Magistrate.
“The District Magistrate has failed to establish a proper nexus between alleged offence and order of detention under the grounds of detention,” the Bench concluded.
On these terms, the detention order was quashed.
The Court clarified, however, that the quash order would not affect the existing cases against the petitioner.
Advocates Debasis Sarangi, BS Dasparida, SK Dash, S Mohapatra, K Mohanty and MK Agrawala represented the petitioner. Additional Government Advocate Janmejaya Katikia appeared for the State.
Read the Order: