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Judgment
Biswanath Rath, J
This is an application involving National Security Act, 1980 (in short, „the Actâ€) challenging therein the order dated 04.01.2020 (Annexure-4)
and the order dated 10.02.2020 (Annexure-5) being passed by the Joint Secretary to Government in Home Department intimating thereby the detenu
about rejection of his representation by the State Government being devoid of merit thereby further indicating the approval of the extension of
detention period of three months and in the subsequent order in exercise of power conferred under Section 12(1) read with Sections 3(3) and 13 of the
Act extending the detention of the detenu for a period of six months instead of three months from the date of his detention under the orders of
detention under the Act. By way of additional affidavit the petitioner filing the correspondence dated 05.05.2020 has also challenged the
communication dated 05.05.2020 of the competent authority thereby extending detention period involving the petitioner from six months to nine months
in exercise of their power under Section 12(1) read with Sections 3(3) and 13 of the Act.
Short background involving the case is that the petitioner was initially arrested and forwarded on 02.10.2019 for his alleged involvement under
Sections 341/506/386/34 of I.P.C. involving Madhupatna P.S. Case No.150 dated 14.09.2019. While the matter stood thus, when the petitioner was in
jail custody, O.P.3, Commissioner of Police, Police Commissionerate, Bhubaneswar-Cuttack, passed the order of detention under the Act involving the
petitioner on 12.11.2019 directing thereby the detention of the detenu resulted taking into consideration his involvement in nineteen numbers of cases
against the detenu as appearing at Annexure-1. The petitioner claimed that out of nineteen cases other than that of the Madhupatna P.S. Case
No.150/2019, the detenu has already been acquitted in some cases by the competent court of law and in the rest cases, he has also been enlarged on
bail by this Court as well as the subordinate court, as clearly borne from the order of detention passed by O.P.3. Consequent upon service of order of
detention, vide Annexure-1, the petitioner filed his representation before O.P.1 on 05.12.2020 defending him from the charges. It is while the matter
stood thus, vide order dated 18.12.2019, O.P.1 rejected the representation of the petitioner, as appearing at Annexure-3. In the meantime, O.P.1
issued another order dated 04.01.2020 with reference to the matter of detention of the detenu to the Advisory Board disclosing therein that the Board
was of the opinion that there has been sufficient cause for his detention and the order was passed after giving opportunity of hearing to the detenu and
further O.P.1 has confirmed the detention order and directed for continuation of the detenu at Choudwar Circle Jail for a period of three months from
the date of his detention, as appearing at Annexure-4. The petitioner further pleaded that when three months detention order was to expire on
11.02.2020, on 10.02.2020 the competent authority passed another order thereby directing detention of the detenu for six months from the date of
detention under the Act instead of three months, as appearing at Annexure-5. During pendency of this petition, by filing additional affidavit the
petitioner has also brought to the notice of this Court that while the matter stood thus, the competent authority has passed another order extending the
detention of the petitioner from six months to nine months in exercise of power conferred by Section 12(1) read with Sections 3(3) & 13 of the Act
communicated vide order dated 05.05.2020 appended to the additional affidavit at the instance of the petitioner.
All the three orders herein above have been assailed on the ground that extension of detention period from three months to six months involving the
petitioner is completely unwarranted, as there has been no cogent and relevant material to show that there is any apprehension of breach of public
peace and safety by the detenu. Further there has been also no compliance of the mandatory provision of Section 10 of the Act by not making further
reference to the Advisory Board to ascertain and review before the extension orders being passed. The petitioner also alleged that though the
provision mandates that the reference has to be made within three weeks, same has not been followed in the case of the petitioner. Further ground
raised by the petitioner is that though a finding of fact was vested on the Advisory Board, which has to form an opinion on its satisfaction of existence
of sufficient reason for preventive detention of the detenu and the Board has to ensure that by calling upon necessary material information to reach a
conclusion of necessity of detention, it is claimed that in the present case, the Board has not undertaken such exercise and as such, the petitioner
claims that the order of detention, vide Annexure-4 is not sustainable in the eye of law. On the same analogy, petitioner claimed that the further
detention orders are also not getting any support of any sufficient opinion of the Advisory Board. Referring to the decision in the case of Additional
Secretary to the Government of India and others vrs. Smt. Alka Subhash Gadia and another reported in 1992 (Supp.-1) SCC 496, the petitioner
claimed that there is no valid reason to detain the petitioner and such conduct of the Authority presently affects the liberty of the detenu enshrined
under Article 21 of the Constitution of India. It is also alleged that there is also violation of the mandate under Articles 22(4) to (7), as it requires a
clear sanction of law or sufficient opinion of the Advisory Board to detain any person to custody for a period of more than three months. The
petitioner also challenged the order of detention under the premises of directives of the Hon’ble apex Court in view of Covid-19 pandemic
situation where the Hon’ble apex Court has directed all the High Courts of the State to constitute high-power committee for granting interim bail
to UT prisoners. The petitioner alleged that for the detention of the petitioner under the Act, the petitioner is unable to avail such scope.
It is in the premises, Sri S.Mishra, learned counsel for the petitioner on reiteration of the facts narrated herein above and the grounds of attack by
the petitioner in the petition referring to the written note of argument also contended that the petitioner has been detained on mere apprehension and
such detention remained contrary to the decision of the Hon’ble apex Court. Learned counsel for the petitioner here relied on the decision of the
Hon’ble apex Court in the case of Ramesh Yadav vrs. District Magistrate, Etah, reported in AIR 1986 SC 315. The second limb of argument by
Sri Mishra, learned counsel for the petitioner is that the subsequent extension of the detention for a period of six months and nine months is contrary to
the Act for being violative of Article 22(4) of the Constitution of India. Sri Mishra, learned counsel for the petitioner also challenged the impugned
orders under the premises that the competent authority while passing the impugned orders have only referred to the opinion and did not deal with the
detailed report. It is alleged that the appropriate Government has failed in dealing with the proceeding of the Advisory Board and its orders simply
based on opinion of the Board. Learned counsel for the petitioner claimed that the impugned orders are against settled law of this Court through Siba
Lenka vrs. State of Orissa & others reported in 1990(I) OLR 347 where this Court has observed, in such proceedings the Authority has to peruse the
proceedings of the Board. Confirmation of the report of the Board only on the basis of the report of the Advisory Board is not sufficient. It is in the
above premises and in reference to the decision referred to herein above, Sri Mishra, learned counsel for the petitioner prayed for interference of this
Court in the impugned orders and requested this Court for setting aside the orders dated 04.01.2020, 10.02.2020 and 05.05.2020 and set the petitioner
at liberty forthwith.
To the contrary, the contesting O.P.3 in their response filed an affidavit on 04.06.2019 thereby contesting the application on the premises that the
detention order is passed in the guise of constitutional safeguards to ensure that the Act is not abused. It is also claimed by O.P.3 that all the
provisions enumerated in Sections 3 & 8 of the Act have been strictly followed and that there has been no infringement of constitutional right
guaranteed by Article 22 of the Constitution of India. In the process, the petitioner’s detention order passed by the detaining authority on
19.12.2019 along with the report of the Superintendent of Sub-Jail, Bhubaneswar, vide Annexures-1 & 2 respectively was served on the detenu on
time. The ground of detention was also served on the detenu on 24.12.2019 before completion of five days. It is also claimed that the petitioner has
been provided with every opportunity provided under the special statute. It is claimed that the extension was done only after review of the situation
and after observing his continuation to be a threat to public orders. It is also claimed that there is no provision for review of the detention orders by the
Advisory Board at every stage and there is no precedence as such. While claiming that each of the provisions of the Act has been strictly followed,
giving details of involvement of the petitioner creating law and order situation, O.P.3 through paragraph-5 attempted to demonstrate a strong case
against the petitioner. In the process, O.P.3 requested for dismissal of the application for having no merit.
O.P.1 also filed counter affidavit, inter alia, containing therein that there is ample material available on record showing the detenu’s antisocial
criminal activities in different cases over a considerable period of time, which are also prejudicial to the interest of public at large. This O.P. claimed
that when normal law of land failed to curb antisocial activities of the petitioner, there has been right implementation of the provision of the Act and
the detention of the detenu is claimed to be legal, justified and in accordance with law. O.P.1 also claimed that there is no infirmity or illegality in
passing the extension orders and thus claimed that the writ petition being not tenable in the eye of law has to be rejected. Giving a parawise comment
to the claim and contention of the petitioner through several paragraphs, this O.P. attempted to demonstrate that the detention of the petitioner is in the
public interest and there has been compliance of all provision required under the Act. It is also claimed that ample opportunity has been provided to the
petitioner at every stage wherever required. In the above premises, O.P.1 also through counter affidavit attempted to justify the detention of the
detenu.
In his opposition, Sri Katikia, learned Additional Government while taking this Court to the counter affidavit filed on behalf of the opposite party no.1
& 3 respectively attempted to justify the order of detention impugned herein and contended that there is no challenge to the parent order of detention
dated 12.11.2019. There is no dispute that the Advisory Board opined that “there lies sufficient cause for his detentionâ€. So far as allegation in
relation to violation of provision at Article 22(4) of the Constitution of India is concerned, Sri Katikia, learned Additional Government Advocate
submitted that every case of preventive detention should be placed before an Advisory Board, constituted U/s.9 of the Act and thereafter the
Advisory Board in exercise of power U/s.11 is required to make a report giving its opinion regarding sufficient or insufficient cause for detention and
then it is the duty of the appropriate Government to confirm the detention order for such period as it thinks fit. Sri Katikia stated that in the process a
reference being made to the Advisory Board U/s.10 of the Act, the Advisory Board has given a report with his finding of reason for detention of the
detenu. Consequent upon which the appropriate authority passed the order of detention. It is claimed by the State that for the constraint through the
judgment of this Court dated 22.08.2019 passed in WP(CRL) No.43 of 2019 the appropriate Government initially passed the order of detention for
three months from the date of detention under the Act and for the reasons mentioned there in subsequent orders of extension have been passed; firstly
extending the detention from three months to six months and then by the order dated 5.05.2020 there is second extension of the detenu from six
months to nine months.
Mr. Katikia, learned Additional Government Advocate taking this Court to the provision at Section 9, 10, 11, 12 & 13 of the National Security Act,
1980 attempted to demonstrate his above submissions. Referring to the judgments in the case of Makhan Singh Vs. State of Punjab as reported in
AIR 1952 SC 27 and in the case of A.K. Roy Vs. Union of India & others as reported in(1982) 1 SCC 27,1 Mr. Katikia, learned Additional
Government Advocate submitted that none of the actions of any of the authority involved herein is neither illegal nor improper so as to requiring
interference of this Court. Finally Mr. Katikia, learned Additional Government Advocate submitted that all the required procedures have been followed
herein and it is wrong to claim that personal liberty of the petitioner enshrined under Article 21 has been infringed.
Taking this Court to the judgments Mr. Katikia, learned Additional Government Advocate attempted to justify his submission and accordingly
claimed for dismissal of the Writ Petition.
It may be apt here to mention that Mr. Katikia, learned Additional Government Advocate has also filed a written note of submission on behalf of the
opposite party nos.1 & 3 giving disclosure of all the above.
Learned counsel for the opposite party no.4 submitting a written note of submission inter alia contended that as it appears, there is no grievance
against the opposite party no.4. On reading of the averments through the Writ Petition it appears, the representation of the petitioner forwarded to the
opposite party no.4 has been duly considered by the opposite party no.4 and has been rejected with a communication of the rejection order to the
Superintendent, Circle Jail, Choudwar vide Wireless Message No.15030/09/2019 NSA dated 11.12.2019 with instruction to communicate the same to
the detenu. Learned counsel for the opposite party no.4 also claimed to have complied with the statutory requirements required under the Act. It is on
the premises that there is no allegation involving the opposite party no.4, opposite party no.4 claimed for dismissal of the Writ Petition.
From the pleadings of the parties this Court finds, the following relevant events have taken place on particular dates; petitioner was forwarded to
Jail on 14.09.2019 for his involvement in offences U/s.341/506/386/34 of I.P.C vide P.S. Case No.150 dated 14.9.2019. On 12.11.2019 the petitioner
was served with an order of detention under Sub-Section (2) of Section 3 of the Act (Annexure-1) while he was in Jail. On 5.12.2019 the petitioner
submitted his representation (Annexure-2). On 18.12.2019 vide Annexure-3 the representation of the petitioner was rejected. Petitioner’s case
was referred to the Advisory Board on 22.11.2019 and on 31.12.2019 the State Advisory Board gave its opinion involving the petitioner’s
detention along with its detailed report. On 4.01.2020 vide Annexure-4 appropriate Government passed the order of detention for three months against
the petitioner on acceptance of the opinion of the Advisory Board on 10.02.2020. Vide Annexure-5, the detention involving the petitioner got extended
to another six months from the date of detention and during pendency of the Writ Petition there is another extension order on 5.05.2020 attached to
the additional affidavit of the petitioner extending the detention of the petitioner from six months to nine months.
Taking into account the submissions of the respective parties recorded in several paragraphs hereinabove, the following questions fall for consideration
by this Court:
(a) Whether the grounds taken by the opposite party no.3 that for the release of the detenu from judicial custody there will be fear and panic in the
society and likely to act in a manner prejudicial to the public order is sufficient enough to detain a person under the National Security Act, 1980 ?
(b) Whether after obtaining permission from the Advisory Board and after passing the confirmation of the detention order vide Annexure-4, there was
any necessity to take further opinion of the Advisory Board and also to give opportunity of filing representation to the detenu before passing of the
extension orders dated 10.02.2020 and 5.05.2020 ?
For the intricacy involved herein, this Court first moves to decide the question no.(b). Giving attention to the narrations made herein, this Court moves
to take into account the legal provisions available for the purpose. Provisions relevant for decision of this case at Sections 8, 9, 10, 11 & 12 of the
National Security Act, 1980 read as follows :-
“Grounds of order of detention to be disclosed to persons affected by the order.â€
When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than
five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate
to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the
appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
Constitution of Advisory Boards.â€
(1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this
Act.
(2) Every such Board shall consist of three persons who are, or have been, or are qualified to be appointed, as Judges of a High Court, and such
persons shall be appointed by the appropriate Government.
(3) The appropriate Government shall appoint one of the members of the Advisory Board who is, or has been, a Judge of a High Court to be its
Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall
be with the previous approval of the State Government concerned.
Reference to Advisory Board.â€"Save as otherwise expressly provided in this Act, in every case where a detention order has been made under
this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory
Board constituted by it under section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by
the order, and in case where the order has been made by an officer mentioned in sub-section (3) of section 3, also the report by such officer under
sub-section (4) of that section.
Procedure of Advisory Board.â€
(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary
from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if,
in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to
the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient
cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be
deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter
connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting the part of the report in
which the opinion of the Advisory Board is specified, shall be confidential.
Action upon the report of the Advisory Board.â€
(1) In any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the appropriate
Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate
Government shall revoke the detention order and cause the person concerned to be released forthwith.â€
Looking to the factual scenario involved herein, this Court finds, there is no denial to the fact that the petitioner was detained under Sub-Section (2)
of Section 3 of the Act on 12.11.2019 and following the provisions of Section 10 of the Act, the case of the petitioner was referred to the Advisory
Board on 22.11.2019. The State Advisory Board submitted its opinion along with its report on 31.12.2019 leading to confirmation of the detention order
and the order asking to detain the petitioner for a period of three months was passed on 4.01.2020. Up to this there appears, there is no violation of the
provision under the National Security Act, 1980. Now for the allegation that before passing the extension orders on 10.02.2020 and 5.05.2020, the
matter ought to have been again sent for the opinion of the Advisory Board, this Court from the provision at Section 11 finds, the Advisory Board,
shall, after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate
Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular
case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate
Government within seven weeks from the date of detention of the person concerned. It appears here that the opinion of the Advisory Board being
given on 31.12.2019, provision requiring submission of the report within seven weeks has been complied with. For the provision at Section 12 after the
report of the Advisory Board, if there is sufficient cause for detention, the appropriate Government is required to confirm the detention order and
continue the detention of the petitioner for such period as it thinks fit. So from the provision at Section 12 (1), it becomes clear that it is for the
appropriate Government to first confirm the detention order, in the event there is sufficient cause then to continue the detention of the person
concerned as it thinks fit. For the involvement of subsequent detention order and looking to the questions framed hereinabove, as to whether in the
event of subsequent detention order, it was necessary on the part of the competent authority to refer the matter to the Advisory Board for review for
the provisions at Sections 11 & 12 ? This Court while disapproving the claim of the detenu in the above regard and observing that there is no necessity
of further reference of matter of the detenu to the Advisory Board before the extension order being passed, takes into consideration some decisions of
the Hon’ble apex Court as herein below. Hon’ble apex Court in the case of Dattatraya Moreshwar Vs. The State of Bombay and others as
reported in A.I.R. 1952 SC 181 in paragraph-4 held as follows :
“The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person
concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the
Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken
subsequently is left entirely to the appropriate Government and it can under section 11 (1) of the Act ""confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit."" In my opinion, the words ""for such period as it thinks fit"" presuppose and imply that
after receipt of the report of the Advisory Board the detaining authority has to make up its mind as to whether the original order of detention should be
confirmed and if so, for what further period the detention is to continue.â€
Similarly in dealing with the case of A.K. Roy Vs. Union of India & ors. and batch of cases, as reported in (1982) 1 SCC 27 1the Hon’ble apex
Court in para 105 held as follows:
“It is urged by Shri Jethmalani that the Advisory Board must decide two questions which are of primary importance to the detenu: one, whether
there was sufficient cause for the detention of the person concerned and two, whether it is necessary to keep the person in detention any longer after
the date of its report. We are unable to accept this contention. Section 11(2) of the Act provides specifically that the report of the Advisory Board
shall specify its opinion ""as to whether or not there is sufficient cause for the detention of the person concerned"". This implies that the question to
which the Advisory Board has to apply its mind is whether on the date of its report there is sufficient cause for the detention of the person. That
inquiry necessarily involves the consideration of the question as to whether there was sufficient cause for the detention of the person when the order
of detention was passed, but we see no justification for extending the jurisdiction of the Advisory Board to the consideration of the question as to
whether it is necessary to continue the detention of the person beyond the date on which it submits its report or beyond the period of three months
after the date of detention. The question as to whether there are any circumstances on the basis of which the detenu should be kept in detention after
the Advisory Board submits its report, and how long, is for the detaining authority to decide and not for the Board. The question as regards the power
of the Advisory Board in this behalf had come up for consideration before this Court in Puranlal Lakhanpal v. Union of India. While rejecting the
argument that the words ""such detention"" which occur in Article 22(4)(a) of the Constitution mean detention for a period longer than three months, the
majority held that the Advisory Board is not called upon to consider whether the detention should continue beyond the period of three months. In
coming to that conclusion the majority relied upon the decision in Dattatraya Moreshwar Pangarkar v. State of Bombay in which Mukherjea, J., while
dealing with a similar question, observed :
The Advisory Board again has got to express its opinion only on the point as to whether there is sufficient cause for detention of the person
concerned. It is neither called upon nor is it competent to say anything regarding the period for which such person should be detained. Once the
Advisory Board expresses its view that there is sufficient cause for detention at the date when it makes its report, what action is to be taken
subsequently is left entirely to the appropriate Government and it can under s. 11(1) of the Act confirm the detention order and continue detention of
the person concerned for such period as it thinks fit.
The contention that the Board must determine the question as to whether the detention should continue after the date of its report must therefore fail.
The duty and function of the Advisory Board is to determine whether there was sufficient cause for detention of the person concerned on the date on
which the order of detention was passed and whether or not there is sufficient cause for the detention of that person on the date of its report.â€
On reading of both the aforesaid decisions it appears, the legal position involving the above aspect has been settled expressing that it is only after the
Advisory Board’s opinion a duty is cast on the appropriate Government to confirm the detention order and continue the detention of person
concerned for such period as it thinks fit. This Court, therefore, observes, after the opinion and report of the Board, a power is already vested with
appropriate Government to fix the period for which the detenu shall be detained. This Court is of the opinion that discretion lies to the appropriate
Government to pass extension order without further reference of the matter to the Advisory Board for its further opinion. For the settled position of
law this Court while accepting the submission of Sri Katikia, learned Additional Government Advocate answers the question (b) against the petitioner.
Now coming to the question number (a), this Court from the pleadings and the materials in the Writ Petition finds, the order of detention under
Sub-Section (2) of Section 3 of the Act dated 12.11.2019 was based on a report of the Deputy Commissioner of Police, Cuttack dated 11.11.2019. On
close scrutiny of the report stretching over 15 pages containing details of cases pending involving the petitioner numbering above 19, this Court finds,
admittedly the petitioner is involved more than one & half dozen of cases. From the observation of the Deputy Commissioner of Police so far it relates
to the reference to the case of the petitioner and the development therein, it appears, in item “KA†in Odia vernacular till “THA†also in Odia
vernacular up to running page 54, the Deputy Commissioner of Police himself has observed that at least three cases have already been closed in
favour of the petitioner and in rest of the cases the petitioner is already on bail with conditions fixed by the trial Court. From the case record involving
such cases appended to the Writ Petition by the petitioner, it also appears, while releasing the petitioner on bail in most of the cases he has been asked
to give undertaking not to involve himself in such offences and he has been released only after giving such undertakes. This Court, therefore,
observes, the petitioner has been granted bail in different cases subject to specific undertakings. From the observation of the Deputy Commissioner of
Police requiring petitioner’s detention it appears, the petitioner is alleged to have been involved in similar type of offences as reported through at
least two of the Case Diary vide General Diary No.20 dated 20.09.2019 and General Diary No.16 dated 22.09.2019. This Court here observes, in the
event the petitioner commits similar offences in breach of conditions while releasing him on bail in several matters, nothing prevented the competent
authority to approach the Court undertaking such exercise for cancellation of bail and as such the competent authority should not have resorted to
apply the provision of the National Security Act, 1980, object of which is to prevent the communal disharmony, social tensions, extremist activities,
industrial unrest and increasing tendency on the part of various interested parties to engineer agitation on different issues, it was considered necessary
that the law and order situation in the country is tackled in a most determined and effective way and/or in the case antisocial and antinational elements
including secessionist, communal and pro-caste elements and also other elements who adversely influence and affect the services essential to the
community by posing a grave challenge to the lawful authority and sometimes even hold the society to ransom. There is even no material forthcoming
indicating any attempt for cancellation of bail involving the petitioner in any of the pending cases. There appears, there is serious lapse on the part of
law and order at least in making an endeavour to prevent such commitance by the person like petitioner. For the opinion of this Court made
hereinabove, none of the ingredients taken note hereinabove are satisfied in the case at hand involving detention of the petitioner. Article 21 provides
that no person shall be deprived of his life or personal liberty except according to the procedure established by the law and the matters of preventive
detention such as there is deprivation of liberty without trial and subsequent safeguards have been provided in Article 22 of the Constitution. When
another person is detained pursuant to an order made under the another law providing for preventive detention, the authority needs to be more careful
particularly keeping in view that individual liberty is a cherished right, one of the most valuable Fundamental Rights guaranteed by the Constitution to
the citizens of the Country. On “libertyâ€, William Shakespeare, the great play writer, has observed that “a man is master of his libertyâ€.
Benjamin Franklin goes even further and says that “any society that would give up a little liberty to gain a little security will deserve neither and
lose bothâ€. For the constitutional mandates, there is utmost importance given to the life and personal liberty of individual since we believe, liberty is
paramount essential to personal liberty of an individual leading to human dignity and human happiness.
It is important to take note of another decision, i.e., in the case of Shafiq Ahmed Vs. District Magistrate, Meerut as reported in (1989) 4 SCC 55 6the
Hon’ble apex Court observed as follows :-
“In answer to this contention, on behalf of the Dist. Magistrate, Meerut, by an affidavit affirmed on 28th August, 1989 and filed in these
proceedings, stated that raids on the petitioner's premises for the service of the order dated 15.4.1988 were conducted. It was further stated that the
respondent authorities had made all efforts to serve the order on the petitioner and for this purpose the house of the petitioner was raided on several
occasions and a refer- ence was made to the general diary report, details whereof were extracted in the affidavit. The details indicate that in respect
of the order dated 15.4.1988 the first raid was made in the house of the petitioner on 12th May, 1988, followed by eight other attempts up to the end of
May, 1988 to arrest the petitioner but he was not available. There was, however, no attempt in the months of June, July, Au- gust' 88 but on 23, 25 &
29th September, 1988 three attempts were made and as such, it was stated on behalf of the respondents, the order could not be served before 2nd
October, 1988. According to the District Magistrate, the respondent authorities did not leave any stone unturned to arrest the petitioner. It was,
however, stated that from May, 1988 to September, 1988 the entire police force of Meerut City was extremely busy in maintaining law and order, but
the petitioner was all along absconding in order to avoid the service of the order. The District Magistrate has further stated that during the period from
May to September, 1988 great communal tension was prevailing in the Meerut City and a large number of people were arrested on account thereof.
The question that requires consideration is, whether there was in ordinary delay. The detention under the Act is for the purpose of preventing persons
from acting in any manner prejudicial to the maintenance of public order. Subsection (2) of section 3 of the Act authorizes the Central Govt. or the
State Govt., if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State,
it is found necessary then the person can be detained. Hence, there must be conduct relevant to the formation of the satisfaction having reasonable
nexus with the action of the petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the
satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct ""it is necessary"" to make an order ""detain-
ing"" such person, are subject to judicial review. Counsel for the petitioner contends that in the aforesaid facts and the circumstances if the conduct of
the petitioner was such that it required preventive detention, not any punitive action, for the purpose of ""preventing"" the person concerned from doing
things or indulging in activities which will jeopardise, hamper or affect maintenance of public order then there must be action in pursuance of the order
of detention with promptitude. Delay, unexplained and not justified, by the circumstances and the exigencies of the situation, is indicative of the fact
that the authorities concerned were not or could not have been satisfied that ""preventive custody"" of the person concerned was necessary to prevent
him from acting in any manner prejudicial to the maintenance of public order. Whether there has been unreasonable delay, depends upon the facts and
the circumstances of a particular situation. Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner
of such detention must, therefore, be subject to closest scrutiny and examination by the courts. In the interest of public order, for the greater good of
the community, it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or
contemplated or anticipated course of action. Satisfaction of the authorities based on conduct must precede action for prevention. Satisfaction entails
belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of the subjective
satisfaction. Action based on satisfaction should be with speed commensurate with the situation. Counsel for the petitioner submitted that in this case
there was no material adduced on behalf of the Govt. indicating that the petitioner was ""absconding"". It was urged that there are no material at all to
indicate that the petitioner was evading arrest or was absconding. It was submitted that section 7 of the Act gave power to the authorities to take
action in case the persons were absconding and in case the order of detention cannot be executed. It is stated that in this case no warrant under
section 7 of the Act has been issued in respect of his property or person. Hence, it was contended that the respondent was not justified in raising the
plea that the petitioner was absconding. We are, however unable to accept this contention. If in a situation the person concerned is not available or
cannot be served then the mere fact that the action under section 7 of the Act has not been taken, would not be a ground to say that the detention
order was bad. Failure to take action, even if there was no scope for action under section 7 of the Act, would not be decisive or determinative of the
question whether there was undue delay in serving the order of detention. Furthermore, in the facts of this case, as has been contended by the
Government, the petitioner has no property, no property could be attached and as the Govt.'s case is that he was not available for arrest, no order
under section 7 could have been possibly made. This, however, does not salvage the situation. The fact is that from 15th April, 1988 to 12th May, 1988
no attempt had been made to contact or arrest the petitioner. No explanation has been given for this. There is also no explanation why from 29th
September, 1988 to 2nd October, 1988 no attempt had been made. It is, however, stated that from May to September, 1988 the 'entire police force'
was extremely busy in controlling the situation. Hence, if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but
because of 'the inadequacy' or 'inability of the police force of Meerut City to control the situation. Therefore, the fact is that there was delay. The
further fact is that the delay is unexplained or not warranted by the facts situation.â€
For the observations of this Court made hereinabove and the settled position of law this Court finds, there is no sufficient ground involving the
detention orders dated 4.01.2020, 10.02.2020 & 5.05.2020, thus while answering issue no.(a) in favour of the petitioner and against the opposite parties
this Court hereby set aside all the three detention orders with a direction to the competent authority to set the petitioner at liberty forthwith.
It is here observed that the petitioner was served with the order of detention on 12.11.2019 while he was in jail custody involving P.S. Case No.150
dated 14.09.2019. There is no material available on record as to whether in Madhupatna P.S. Case No.150/2019 the petitioner has been granted bail in
the meantime or not ? This Court, therefore, makes it clear that release of the petitioner involving the proceeding under the National Security Act,
1980 shall remain subject to his detention if not required otherwise.
The writ petition (criminal) succeeds.