IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.426 of 2011 Chhotu Sharma @ Kundan Kumar, son of Sri Satyendra Sharma, resident of Village- Karpi Din, Police Station- Karpi in the district of Arwal. ……………Petitioner. Versus 1. The State of Bihar, through the Chief Secretary, Bihar, Patna. 2. The Home Secretary, Govt. of Bihar, Patna. 3. The Under Secretary Home (Police) Department, Govt. of Bihar, Patna. 4. The District Magistrate, Arwal (Bihar). 5. The Superintendent of Police, Arwal (Bihar). 6. The Jail Superintendent of Divisional Jail, Jehanabad (Bihar). ……………Respondents. For the petitioner :- Mr. Akhileshwar Prasad Singh, Senior Advocate. Mr. Shivendra Prasad, Advocate. For the State :- Mr. Sanjay Kumar, A.C. to S.C. I. ----------- 4. 20. 05.2011. Heard learned counsel for the petitioner and the State. 2. This is a petition for issuing a writ in the nature of Habeas Corpus directing the authorities to release the petitioner from illegal detention after quashing the order dated 06. 12. 2010, issued under the signature of the Under Secretary, Home (Police) Department, under Section 21 (1) and 22 of the Crime Control Act confirming the order of detention passed by the District Magistrate, under Section 12 (2) of Bihar Control of Crime Act. 3. The fact in narrow compass that order of detention under Section 12(2) of Bihar Control of Crime 2 Act has been passed by the District Magistrate, Arwal, on the ground of involvement of the petitioner in two cases bearing Karpi P.S. Case No. 88 of 2010 and Karpi P.S. Case No. 57 of 2010 and order of detention has been passed on 26. 10.2010. The said order of detention was served on the petitioner on 28.10.2010 and said order of detention was approved by the State Government on 06. 11. 2010. The order of detention was confirmed on 28. 12. 2010. However, the petitioner filed a representation on 06.11.2010 through the Superintendent, District Jail, Jehanabad. The representation of the petitioner dated 06. 11. 2010 was considered by the District Magistrate and the District Magistrate sent his comment on 07. 12. 2010 and the Hon’ble Chief Minister on 24. 12. 2010, rejected the representation of the petitioner and communication of the said order of rejection to the petitioner was vide Memo No. 10488, dated 28. 12. 2010. 4. Learned counsel for the petitioner however, challenged the order of detention on the ground that the ground of which order of detention passed concern with law and order and not public order and hence not sustainable. It has further been contended that representation of the 3 petitioner was filed on 06. 11. 2010, but the same was disposed of on 28. 12. 2010 due the much delay and hence order or detention suffers from the Constitutional safeguard provided under Section 22 (5) of the Constitution of India. 5. Learned counsel for the State however, opposed the prayer and stated that allegation made against the petitioner concerns with the public order. 6. Hence, question for consideration whether the order of detention suffers, whether allegation made on the grounds are question for law and order, whether it extends to public order and further whether order of detention is sustainable for delay in disposing the representation of the petitioner. 7. So far the first question concerns that basis for order of detention passed against the petitioner are two cases. In Karpi P.S. Case No. 88 of 2010, there is allegation of firing with intention to kill and during investigation it came in light that petitioner raise an active member of well organized group for collecting Rangdari and hence did the occurrence for non-fulfillment of demand made in Rangdari. In another case also under Section 307, 384 and other allied Sections of Penal Code raised Rs.2,00,000/- was 4 demand as Rangdari and when the demand was not fulfilled the petitioner along with other associate reached the brick klin factory and assaulted the labourer of the said brick klin and set fire on a tractor stand near the brick klin with a threat to pay Rangdari. However, two cases referred can adverse affect even tempo of life is not only the allegation though, law and order effect the society as such having as such that law and order problem to have extended public order disturbing even tempo of life as person in society are suffer from the activities prejudicial to the public order as there is specific allegation that the petitioner having fired and even resorted firing causing injury for non-fulfilment of demand of Rangdari and even setting firing on the truck and assault the labourer even itself shows nature of allegation to have even adverse effect on the society and hence there is no merit in the submissions that allegations made are question of law and order and not concerned with public order. 8. Learned counsel for the petitioner however relied upon decision reported in 2008 (1) PLJR page 560. However, in the facts and circumstances of the case reported in 2008 (1) PLJR, grounds on which order of 5 detention was passed was found to be result of a inimical M.L.A. and two cases found against the petitioner and the cases were filed by the Police Officials as well as further Sanha by Officer-in-Charge of a Police Station and under the facts and circumstance none of the case referred as grounds for preventive detention are of nature which could be said to have caused disturbance to public order and apparently no member of the public has lodged any serious criminal case against the petitioner of that case. 9. However, under the facts and circumstances of the case it is quite different to the facts and circumstances of the present case and the ratio decidendi in decision reported in 2008 (1) PLJR is not at all applicable to the facts and circumstances of the present case. 10. However, second point for consideration that order of detention was passed on 26. 10. 2010 and order of detention was served on 28. 10. 2010 and representation was filed on 06. 11. 2010. However, order of detention was rejected on 28. 12. 2010 about one month two weeks and there is no explanation for delay in disposing the representation for about 50 days. However, Article 22 (5) of the Constitution of India provides safeguard for 6 consideration of the representation as soon as possible and as soon as has been interpreted that the representation of the petitioner requires to be disposed of immediately and this has been interpreted and even three days or five days delay in disposing the representation is fatal. However, here under the facts and circumstances delay is for about fifty days and no explanation has been given and only explanation has been given that on the representation against the detention order dated 06. 11. 2010, the comment of the District Magistrate was filed before the Government on 07. 12. 2010 and thereafter, the State Government rejected the representation on 24. 12.2010. However, there is no explanation for the delay in giving comment from 06.11.2010 to 07. 12. 2010 before the Collector and delay of 07.12.2010 to 24. 12. 2010 before the Government and hence Constitutional safeguard provided under Section 22 (5) has been violated and hence in that view of matter order of detention of the District Magistrate and confirmation of rejection is not sustainable in view of violation of Constitutional safeguard under Article 22 (5) of Constitution of India and hence order of detention passed against the petitioner and its confirmation by the 7 Government is set aside and the petition is allowed. m.p. ( Shyam Kishore Sharma, J.) (Gopal Prasad,J.)