SANTOSH KUMAR MALLICK vs STATE OF ODISHA
- Court
- Odisha High Court
WPCRL/41/2026
ODHC010210822026
2026:OHC:258-DB
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 41 of 2026
CNR No. ODHC010210822026
Santosh Kumar Mallick …. Petitioner
-Versus-
State of Odisha and another Opposite Parties
….
Advocates appeared in this case:
For Petitioner : Ms. Sevati Soren, Advocate
For Opposite Parties : Ms. Aishwarya Dash
Addl. Standing Counsel
CORAM:
HON’ BLE THE CHIEF JUSTICE
AND
MR. JUSTICE CHITTARANJAN DASH
HON’BLE
J U D G M E N T
----------------------------------------------------------------------------------
rd
Date of Hearing : 23 September, 2026
nd
Date of Judgment : 2 November, 2026
----------------------------------------------------------------------------------
HARISH TANDON, CJ.
1. The present writ petition, in the nature of Habeas Corpus, is filed at
the behest of the father of the detenu, challenging the preventive
detention order dated 08.12.2025 passed by the District Magistrate, Puri
under Section 3(2) of the National Security Act, 1980 (NSA) primarily on
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the ground that the procedures and the recourses under Article 22(5) of
the Constitution of India have not been followed and, therefore, such
order of detention has impacted the fundamental right of personal liberty
enshrined under Article 21 of the Constitution of India.
2. It is averred in the instant writ petition that the detenu, who is aged
about 24 years and in the prime time of his life was, in fact, pursuing the
education at the graduate level but has been falsely implicated in several
criminal cases. It is alleged that the said detenu was never afforded an
effective, meaningful and actual opportunity of making a representation
against the order of detention and the reflection of the so-called
adherence to the procedural compliance is mere illusory. It is further
alleged that the representation has already been submitted on behalf of
the detenu and on being made aware thereof, the petitioner sought for a
copy of the said representation, which was duly supplied on 07.02.2026,
which on a bare look does not constitute any voluntary or effective
representation in the eye of law. It is further alleged that multiple
criminal cases in which the detenu has been falsely implicated is done in
a mechanical exercise by creating a false perception, of a habitual
criminality and mere pendency of those matters does not justify the
preventive detention under the NSA.
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3. The opposite parties-State filed the counter affidavit and took the
specific stand that the order of detention has been passed to prevent the
detenu from acting in any manner detrimental to the maintenance of a
public order and the order of detention passed under Section 3(2) of the
NSA Act. The District Magistrate, Puri after analysing the materials
placed before him by the Superintendent of Police, Puri, passed an order
of detention against the detenu on 08.12.2025 to prevent him from acting
in any manner prejudicial to the maintenance of the public order and the
grounds of detention was duly served on the detenu on 12.12.2025.
Immediately thereafter the factum of such detention was duly
communicated to the Home (Special Section) Department on 15.12.2025
and later on was placed before the Government for consideration and the
approval was granted by the State Government on 19.12.2025. The said
decision of the Government was duly communicated to the Ministry of
Home Affairs, Government of India and the Secretary, NSA Advisory
Board on the same day. Simultaneously, the notice of the event date was
issued upon the detenu informing him that the case has been referred to
NSA Advisory Board with clear stipulation that he has a right to make a
representation, if so wishes. The detenu
by prisoner’s petition addressed
to the District Magistrate made a representation and signifies his intention
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to appear in person along with his advocate before the NSA Advisory
Board on 09.01.2026. For one reason or another, the Advisory Board
could not held the sitting on the said date and communicated such fact to
the detenu that it would sit on 19.01.2026. The detenu appeared before
the NSA Advisory Board and was afforded an opportunity of hearing in
person and after due consideration of the facts so disclosed, the NSA
Advisory Board affirmed the decision of detention having found
sufficient material in this regard and duly communicated the same to the
detenu. Subsequently,
on the consideration of the Advisory Board’s
report, the State Government independently considered the case and
extended the period of detention. Though the petitioner being the father
of the detenu has no right under the Act to make any representation, but
the same was filed and the authorities considered the same and ultimately
the order of detention was passed extending the time for the reasons
recorded therein. It is further averred that there has been several cases
registered against the detenu and being a hard core antisocial/criminal
and in the habit of committing heinous crime one after another has in fact
built a terror kingdom causing a disruption in the public order and
tranquility. Therefore, the order of detention is not only in conformity
with the National Security Act, but also in the larger interest of the public
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and, therefore, the instant petition filed by the petitioner warrants
dismissal.
4.
Both the counsels appearing for the respective parties advanced
their argument not only on the merit of the order of detention passed by
the State Government as well as the Advisory Board, but also on the
procedure to be adopted in connection therewith. According to the
counsel for the petitioner, the order of detention is per se illegal and the
valuable right to be communicated with the grounds of detention having
not been followed, such order cannot stand. It is fervently submitted by
the counsel for the petitioner that the valuable right emanating from
Article 22 of the Constitution of India if violated, it warrants an
immediate release of the detenu as the right of personal liberty under
Article 21 of the constitution of India is a most valuable right guaranteed
thereunder. The order of detention is passed in a mechanical manner
without any discernable facts and, therefore, there is no fetter on the part
of the petitioner to file a writ in the nature of Habeas Corpus.
5. On the other hand, the State opposes the instant writ petition on the
premise that the provisions contained under NSA Act in conjunction with
the provisions contained under Article 22 of the Constitution of India
have been duly followed and all reasonable opportunities including the
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communication of the ground of detention was forwarded to the detenu
and the representation was made, personal hearing was afforded and a
conscious and reasoned decision was taken by the State as well as by the
Advisory Board. It is fervently submitted that because of the past
incidents and the several cases having lodged against the detenu who is
creating a terror in the locality by building his terror kingdom, the
detention under NSA Act was thought to be inevitable.
6. On the above backdrop, the question boils down to the effect
whether the authorities were justified in detaining the detenu under NSA
Act and the procedure as provided therein and the right emanating from
Article 22 of the Constitution of India were strictly adhered to or not ?
7. It is no gain saying that the provision contained under Article 22
(1) of the Constitution of India creates a fundamental right of a person
detained to consult and defended by a lawyer of his choice, but Article 22
(3) creates an exception to the said clause in case of preventive detention.
We are conscious that the personal liberty is a valuable right guaranteed
under Part-III of the Constitution of India, but is subject to the established
procedure of law. Though Article 21 of the Constitution deals with
personal liberty of a citizen which engulfed within itself the basic human
right as well, yet the framers of the law being conscious of the same,
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introduced Article 22 of the Constitution conferring the power upon the
executive to detain a person pending adjudication.
8.
In one sense, the concept of preventive detention is opposed to a
democratic idea and anathema to rule of law, yet it occupies a space
under Part-III of the Constitution of India and, therefore, have to be
understood conjointly with the right of liberty and the rigour within
which it is to be so exercised must be scrupulously followed. In the event
the Court finds any departure from the mandate given under the NSA Act
and Article 22 of the Constitution, it must step in and uphold the valuable
right of personal liberty which engulfed the basic human rights as well.
9. The Apex Court in case of Rekha v. State of T. Nadu Tr. Sec. To
Govt. and Anr, reported in (2011) 5 SCC 244 fortifies the aforesaid
concept in the following:
“ No doubt it has been held in the Constitution Bench
decision in Haradhan Saha's case (supra) that even if a
person is liable to be tried in a criminal court for
commission of a criminal offence, or is actually being so
tried, that does not debar the authorities from passing a
detention order under a preventive detention law. This
observation, to be understood correctly, must, however,
be construed in the background of the constitutional
scheme in Articles 21 and 22 of the Constitution (which
we have already explained). Articles 22(3)(b) is only an
exception to Article 21 and it is not itself a fundamental
right. It is Article 21 which is central to the whole
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chapter on fundamental rights in our Constitution. The
right to liberty means that before sending a person to
prison a trial must ordinarily be held giving him
opportunity of placing his defence through his lawyer. It
follows that if a person is liable to be tried, or is actually
being tried, for a criminal offence, but the ordinary
criminal law (Indian Penal Code or other penal statutes)
will not be able to deal with the situation, then, and only
then, can the preventive detention law be taken recourse
to.”
10. Even prior thereto, in case of Ichhu Devi Choraria v. Union of
India and others, reported in AIR 1980 SC 1983 , the apex Court held
that the power of detention is permissible not only in the interest of the
public security and order, but must ensure the strict compliance of the
provision of the statute as well as the constitutional right guaranteed
under Part-III of the constitution by supplying the copies of the
documents, statements and/or other materials justifying the grounds of
detention without undue delay, and also to afford an earliest opportunity
to make a representation in the following:
“ There were several grounds on which the detention of
the detenu was challenged in the petition. But it is not
necessary to refer to all the grounds since there is one
ground which is, in our opinion, fatal to the continued
detention of the detenu and it will be sufficient if we
confine our attention to that ground. The contention of
the petitioner under the ground was that though several
statements and documents were relied upon in the
grounds of detention and considerable reliance was also
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placed on two tape recorded conversations in the
grounds of detention, the detaining authority did not
serve on the detenu along with the grounds of detention,
copies of those statements, documents and tapes and it
could not therefore be said that the grounds of detention
were duly served on the detenu as required by sub-
section (3) of section 3 of the COFEPOSA Act and
clause (5) of Article 22 of the Constitution. The
petitioner urged that sub-section (3) of section 3 of the
COFEPOSA Act and clause (5) of Article 22 of the
Constitution required that the detaining authority should
as soon as may be, communicate to the detenu the
grounds on which the order of detention has been made
and such grounds would comprise not merely a bare
recital of the grounds of detention but also all statements
and documents relied upon in the grounds of detention,
because these latter would also form part of such
grounds. It was also contended by the petitioner in the
alternative that, in any event, the detaining authority was
bound to give copies of the statements, documents and
tapes relied upon in the grounds of detention to the
detenu without any avoidable delay in order that the
detenu should have the earliest opportunity of making an
effective representation against the order of detention.
The argument of the petitioner was that, in the present
case, though the detenu asked for the copies of
statements, documents and material relied upon in the
grounds of detention as early as 6th June, 1980, the
detaining authority did not supply copies of such
statements, documents and materials until 11th July,
1980 and on that day also, what were supplied were
merely copies of the statements and documents and not
the copies of the tapes which were supplied only on 20th
July 1980. This delay in supplying copies of the
statements, documents and tapes was, in the submission
of the petitioner wholly unjustified and the detenu was
thus denied the earliest opportunity of making an
effective representation and this infected the continued
detention of the detenu with the vice of illegality. This
ground of challenge urged on behalf of the petitioner
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appeared to us to be well founded and that is why, by an
order dated 8th August 1980 made immediately on the
conclusion of the arguments, we allowed the petition and
directed that the detenue be set at liberty forthwith. We
now proceed to give our reasons for making that Order.
We may point out straightway that we are not at all
happy at the thought that our order may have resulted in
setting free a possible smuggler. We are not unmindful of
the fact that the COFEPOSA Act has been enacted for
the purpose of eradicating the evil of smuggling which is
eating into the vitals of the nation like a cancerous
growth and eroding the economic stability of the country
and when an order is made by the Court releasing a
person detained under this Act, it is quite possible that
the effect of the order may be to let loose on the society,
a smuggler who might in all probability, resume his
nefarious activities causing incalculable mischief and
harm to the economy of the nation. But at the same time
we cannot forget that the power of preventive detention
is a draconian power justified only in the interest of
public security and order and it is tolerated in a free
society only as a necessary evil. The power to detain
without trial is an extraordinary power constituting
encroachment on personal liberty and it is the solemn
duty of the Courts to ensure that this power is exercised
strictly in accordance with the requirements of the
Constitution and the law. The courts should always lean
in favour of upholding personal liberty, for it is one of
the most cherished values of mankind. Without it life
would not be worth living. It is one of the pillars of free
democratic society. Men have rightly laid down their
lives at its altar in order to secure it, protect it and
preserve it. The Constitution has therefore, while
conceding the power of preventive detention, provided
procedural safeguards with a view to protecting the
citizen against arbitrary and unjustified invasion of
personal liberty and the courts have always zealously
tried to uphold and enforce these safeguards. This Court
has also through its judicial pronouncements created
various legal bulwarks and breakwaters into the vast
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powers conferred on the executive by the laws of
preventive detention prevalent at different points of time.
It is true that sometimes even a smuggler may be able to
secure his release from detention if one of the safeguards
or requirements laid down by the Constitution or the law
has not been observed by the detaining authority but that
can be no reason for whittling down or diluting the
safeguards provided by the Constitution and the law. If
the detaining authority wants to preventively detain a
smuggler, it can certainly do so, but only in accordance
with the provisions of the Constitution and the law and if
there is a breach of any such provision, the rule of law
requires that the detenu must be set at liberty, however
wicked or mischievous he may be. The law cannot be
subverted, particularly in the area of personal liberty, in
order to prevent a smuggler from securing his release
from detention, because whatever is the law laid down
by the courts in the case of a smuggler would be equally
applicable in the case of preventive detention under any
other law. This Court would be laying down a dangerous
precedent if it allows a hard case to make bad law. We
must, therefore, interpret the provisions of the
Constitution and the law in regard to preventive
detention without being in any manner trammelled by the
fact that this is a case where a possible smuggler is
seeking his release from detention.”
11. Even in the recent judgment delivered by the Apex Court in Sunil
Kumar Gupta Alias Sunil Chain v. Union of India (Criminal Appeal
th
No. 2189 of 2026 decided on 27 April, 2026 ), the apex Court held that
the concerned Government should consider the representation at an
earliest point of time and if it is found that the same has not been adhered
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to, it would render the detention order and subsequent approval illegal in
the following:-
A duty is imposed on the concerned Government to
“
consider the representation of the detenu at the earliest
point of time. In the present case, the detaining authority
did not forward the representation to the State
Government immediately, though it had actually been
sent to the detaining authority by the prison authority at
the earliest point of time.
The State Government on its part has approved the
detention order and only thereafter, considered the
detenu’s representation. The representat ion of the
detenu made to the State Government has nothing to do
with either the detaining authority or even the Advisory
Board. Unfortunately, the aforesaid action of
considering the representation was not forthcoming at
the earliest point of time. This would vitiate both the
detention order and its subsequent approval.”
12. On the conspectus of the law enunciated in the above reports, let us
examine whether the authorities have followed the procedure of law
emanating from the statute as well as the constitutional mandate
warranting interference with the order of detention.
13. The facts revealed from the record indicates that the District
Magistrate, Puri after receiving the report from the Superintendent of
Police, Puri, which discloses several FIRs and/or Charge Sheets having
filed against the detenu in relation to heinous crimes recorded its
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subjective satisfaction and passed an order on 08.12.2025 for preventive
detention of the detenu under the NSA Act in order to protect the public
order. The ground of detention which spanned over 25 pages along with
the supporting documents were duly served upon the detenu on
12.12.2025 with clear stipulation that the detenu has a right to make a
representation. Simultaneously, within the close proximity of time, notice
was also issued to the detenu that his case has been referred to the NSA
Advisory Board and he has a right to make a representation
independently. The representation was made by the detenu through prison
wherein he sought for personal hearing and date was fixed, which was
made known to the detenu and subsequent date so fixed was also
communicated to the detenu, who appeared in person and, therefore, was
afforded an opportunity of hearing. The Board did not accept the defence
to be plausible as it was of the opinion that the detention is in the larger
public interest and to maintain public order. Despite having no right to
have been conferred upon the father of the detenu, the petitioner herein,
yet the representation filed by the petitioner was duly considered and
ultimately subjective satisfaction was recorded that the order of detention
does not warrant any revocation.
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14. Once the procedures provided under the NSA Act and under
Article 22 of the Constitution of India are followed and there are
incriminating materials including several criminal cases having pending
against the detenu, we do not find that the detenu was not given an
earliest opportunity of hearing and to defend. Even the ground of
detention containing the elaborate facts including the documents were
served upon the detenu with clear stipulation that he has a right to make a
representation, which in fact was availed of. The moment the authorities
have recorded their subjective satisfaction justifying the detention and
extension from time to time, we do not feel that it is a fit case where the
writ in the nature of Habeas Corpus should be issued upon the authorities
and the order of detention warrants interference.
15.
The writ petition is thus dismissed. No order as to costs.
I agree.
(Chittaranjan Dash)
Judge
(Harish Tandon)
Chief Justice
S.K Jena/ Arun Mishra
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 03-Nov-2026 10:58:10
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