IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.462 of 2011 Dinesh Beldar, Son of Suryanath Bind, R/o-Vill.-Sarkuna, P.S.- Dulhin Bazar, District-Patna. –Petitioner. VERSUS 1. The State of Bihar. 2. The Secretary to Government of Bihar, Home (Police) Department. 3. The District Magistrate, Patna. 4. Senior Superintendent of Police, Patna. 5. The Jail Superintendent, Adarsh Central Jail, Beur, Patna. -Respondents. ***** Counsel for the Petitioner : Mr. Ajay Kumar Sinha, Adv. Counsel for the State : Mr. Yashwant Kumar Chaman, AC to SC 25. ***** 06 12.07.2011 By this writ application in the nature of Habeas Corpus, the petitioner seeks quashing of his preventive detention as ordered under the Bihar Control of Crimes Act, 1981. It appears that petitioner was implicated in two criminal cases being Dulhin Bazar P.S. Case No.165/09 instituted on 12.12.2009 and Dulhin Bazar P.S. Case No.26/10 dated 06.02.2010. Ostensibly, the cases were instituted at the behest of a Road Construction Company, namely, M/s Aptech Builder Private Limited. The allegation in both the cases were that the petitioner allegedly was demanding extortion money from the builder who was constructing the road and on non-payment thereof damaged some equipment also. Accordingly, cases were filed under provisions of the Indian Penal Code and Section 17 of the Criminal Law Amendment Act being member of an unlawful organization (MCC). Upon this, it appears that the Senior Superintendent of Police, Patna reported to the District Magistrate, Patna vide his letter dated 01.10.2010 that the conduct of - 2 - the petitioner has been such that he is likely to create “public order” problem and, if released on bail, would be a liability for the society and, as such, should be put under preventive detention for a period of one year. Accordingly, having received the report, the District Magistrate, Patna issued the detention order in terms of the Bihar Control of Crimes Act, 1981 on 18.10.2010. While petitioner was still in judicial custody, the detention order having been served on the petitioner in judicial custody on 19.10.2010. It appears that the detention order having been executed was forwarded to the State Government, who on 29.10.2010 approved the detention order and the action taken. This was communicated to the petitioner on 02.11.2010. Upon the approval order being communicated to the petitioner, petitioner immediately made representation to the State Government. Counter affidavit has been filed in which it is admitted that on 03.11.2010 the representation was received in the office of the District Magistrate, Patna who forwarded to the State with his comments for disposal of the representation on 24.11.2010. In the meantime, on 26.11.2010 the Advisory Board, as constituted under the said Act, confirmed petitioner detention. Pursuant thereto, on 13.12.2010 the State Government confirmed/approved detention. Ultimately, on 29.12.2010 (Annexure-6) representation of the petitioner was rejected and its rejection communicated to the petitioner under Memo No.10542 dated 29.12.2010 by the State, which, in fact, was served on the petitioner on 06.01.2011. Petitioner, by this writ application, has raised three - 3 - contentions against his detention. Firstly, he submits that in view of the nature of the criminal allegations against the petitioner, it is not a public order problem but a law and order problem. Both the criminal cases were instituted by the same group. That being so, the very issuance of the detention order was vitiated in law even though it is dependent on subjective satisfaction. He secondly submits that there has been inordinate delay in considering his representation, which is violative of Article-22(5) of the Constitution. It is pointed out that the petitioner filed his representation against his detention on or about 02.11.2010 and was admittedly received in the office of the District Magistrate, Patna on 03.11.2010. It remains with the District Magistrate up to 24.11.2010. When it was forwarded to the State and State ultimately passed the order rejecting the representation on 29.12.2010. Thus, virtually it has taken two months for the State to consider the representation. This was gross inordinate delay with no suitable explanation. In the counter affidavit apart from giving dates and the usual plea of time consuming State procedures factual defence to the delay is not there, much less, for the period of almost two months. The last ground submitted is that the order rejecting the representation, as contained in Anneuxre-6 dated 29.12.2010, does not disclose either application of mind or the reasons in support of the decision. It is only a single line order that the representation has been rejected. The counter affidavit does not disclose or refer to any other order passed rejecting the representation, much less, even if passed in the file, nothing has been stated and nothing has been brought on - 4 - record. Thus, it being an order dealing with the valuable right of a citizen and subject to judicial review, it cannot be but a speaking order. In absence thereof, the constitutional mandate of fair consideration of representation is violated. Having heard the parties at length and examined the records, in our view, the writ application must succeed. So far as the first issue, as noted above, is concerned, we do not propose to discuss the legal intricacies involved in view of the order that we propose to pass. The other two grounds that are left are inordinate delay. The period taken by the State to consider the representation is, as noted above, almost two months. The case is of Patna, the consideration had to be at Patna, and still it took State over two months to dispose of the representation. This, in our view, having not been explained statutorily is fatal to the detention. Preventive detention is explained to the concept of liberty. As enshrined in our Constitution, preventive detention curtails almost all rights conferred or recognized to a citizen of this country. It is in that perspective Courts have zealously protected the rights of citizens in this manner. It is now established beyond doubt that a representation as soon as made against detention has to be given top priority and has to be considered and decided with utmost urgency. Here, the Government has taken two months to take a decision in the matter without there being any explanation, much less, reasonable explanation in that regard. It is not a matter of 10 days, 15 days or even a month the time taken is almost two months. We are of the view that this renders the detention void being violative of Article- - 5 - 22 (5) of the Constitution. The second ground is also equally valid. Once a detention order executed, the detenue has a right to make representation. Once this right to make representation is considered to be a right then to be a meaningful right, the representation must receive a meaningful consideration. A meaningful consideration culminates in an order either confirming or cancelling the detention. One can make out if there has been a meaningful consideration only from an order which is finally passed by the State. The order is Annexure-6 to the writ application. It is a one line order stating that the State Government upon consideration of the material is satisfied that the representation as filed by the petitioner is fit to be rejected. It is a bald order with no reasons. Even in the counter affidavit no effort has been made to show that reasons were, in fact, recorded. It is well settled that reasons are the link between facts found and the decision taken, in absence whereof, it is not clear nor can it be ascertained as to what persuaded the authorities to take a decision, as they have taken the order being subject to judicial review had to be a speaking order. It is only then it can be said that mind applied and the order rejecting the representation is not passed mechanically. We must remind our self once again that we are dealing with one of the most important constitutional rights of citizens that cannot be dealt with lightly. A person cannot be deprived of his life from any such callous manner. In that view of the matter, we are satisfied that the preventive detention of the petitioner is not sustainable and is violative - 6 - of petitioner’s constitutional right. The writ application is, thus, allowed. The detention order of the petitioner, as passed under the provisions of the Bihar Control of Crimes Act, 1981, as noted above, is set aside. Petitioner is directed to be set at liberty unless required in any other case or is detained pursuant to any other judicial order. Trivedi/ (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)