IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1198 of 2010 AJAY YADAV @ JAI KUMAR YADAV @ JAI KUMAR SON OF BOUDHI YADAV, @ HARI YADAV, RESIDENT OF VILLAGE- GOVINDPUR, P.S. BIND, DISTRICT-NALANDA. ……….PETITIONER. Versus 1. THE STATE OF BIHAR. 2. UNDER SECRETARY TO GOVERNMENT, HOME (POLICE) DEPARTMENT, GOVERNMENT. OF BIHAR, PATNA 3. DISTRICT MAGISTRATE, NALANDA. 4. SUPERINTENDENT OF POLICE, NALANDA. ………..RESPONDENTS. ----------------- 07/ 19.01.2011 The present Criminal writ application has been filed by Ajay Yadav @ Jai Kumar Yadav@ Jai Kumar, who has been directed to be detained by the District Magistrate, Nalanda at BiharSharif, by virtue of exercising his powers conferred under section 12(2) of the Bihar Control of Crimes Act. The order is contained in District Magistrate’s Memo No. 1389 / Legal, dated 29.5.2010. 2. While passing the above order, the District Magistrate has indicated the grounds. In his order No 03/2010, dated 29.5.2010, three cases were cited for deriving satisfaction by the District Magistrate, Nalanda, so as to exercising his power for detaining the petitioner, while he was indicating his grounds of satisfaction and while he was passing as it is not just now, the District Magistrate was not indicating 2 as for what the petitioner was being detained. 3. Having heard learned Senior Counsel for the petitioner, namely, Shri Devendra Kumar Sinha and also after haring Shri Manoj Kumar Jha AC to GA-1, we wish that the District Magistrate, ought not to have passed the order and we would like to state reasons for saying so after considering the submission made by Shri Singh against the correctness of the order. 4. Shri Sinha firstly placed a decision of the Supreme Court Reported in AIR 1974 SC 1161, in which it was noted by Supreme Court that if the facts were constituting substantive criminal cases for being tried by Criminal Court, the detaining authority must not use those cases as grounds for drawing subjective satisfaction. The second ground which was submitted before us was by virtue of a decision rendered by us in a case reported in 2010 (4) PLJR 527. It was submitted by Shri Sinha that the District Magistrate, Nalanda was passing the order without applying his mind to the cases as some of the cases were examples of false implication. In that case the detention order was passed on that basis. In some cases the petitioner had been acquitted. In some others, the accusations had been reported false. It has been observed by us in the case 3 referred to above that the detaining authority appeared not applying his mind properly to the facts of the case and as such the detention order was suffering from the non-application of mind by the detaining authority. The third ground which was submitted by Shri Sinha is that no period has been indicated in the order of detention passed by the District Magistrate, though the counter affidavit filed by the State indicated that the indefinite order of detention stood approved by the Government of Bihar, by its order passed on 08.06.2010, Annexure-3 and was approved by the State of Bihar on 8.6.2010 and confirmed further by the State of Bihar by order passed on 28th of July 2010 (Annexure- F). It is contended by Shri Sinha that when the order of detention was not indicating the period for which the petitioner is being detained, then the subsequent orders of approval or of confirmation were simply not sustainable in law. 5. Shri Sinha, the learned counsel appearing for the State, first attempted to justify the detention order by submitting that the District Magistrate was noticing in his order of detention three substantive criminal cases, which caused danger to public order on account of acts complained against the petitioner and those constituted good grounds for being 4 satisfied. However, the learned counsel for the State subsequently conceded that in one of the cases bearing Laheri P. S. case No. 40 of 2010, the petitioner was not named and had been implicated after 45 days of the lodging of the report and in another case, i.e, Bihar P.S. Case No. 87 of 2010, no substantive or any incriminating material from the possession of the petitioner was found. As regards third ground, i.e, Laheri P.S. Case No. 40 of 2010, the same was under the Arms Act which could not have been taken as a ground for passing the detention order. 6. On consideration of the provision of section 12 of the Bihar Control of Crimes Act 1981, it may be followed that the power of passing the detention order could be exercised for detaining a person only for a period of three months, which provision is mandatory. The order which was passed by the detaining authority, particularly by virtue of the exercise of that particular power under section 12 of the Act, must indicate as to for what period the detenue has been detained. The State Government while confirming the order of detention, did not qualify the period of detention of the petitioner and as such, we find that the initial order contained in Annexure-1, which is contained in further Memo No.1389 dated 29.5.2010 is an 5 order indefinite in nature. This was one of the reasons that we found that the District Magistrate, Nalanda while passing the order of detention was not exercising his jurisdiction under section 12 (2) of the Act in its completeness, besides in its appropriateness. 7. The second ground which was urged before us was of the substantive criminal cases and the same being treated as grounds for passing the detention order. Reliance was placed by Shri Sinha as we have noticed in some part of the present order on AIR 1974 Supreme Court 1161. Special reference was made by Shri Sinha to the above discussion of the Supreme Court in which the principle has been laid down by making reference to the facts of the case and to some of the cases which were already pending before some court for trial. It was observed that similar nature of order detaining the appellant before the Apex Court had been quashed by this Court on the ground of pendency of substantive criminal trials. It was lastly pointed out, after noticing the facts of the cases, that when substantive criminal cases had been put to trial or were pending for trial, the same could not be made the basis for passing the detention orders. There is direct allegation as may be made out from the statement of facts as is contained in order No.3 of 6 2010 dated 29.5.2010 that the petitioner had been hired to murder one Bhola, that crime was committed by the petitioner on 28th March 2010 as early as, at 7 A.M. causing a complete chaos and disruption of the public order that way. But, what we find not denied by the State of Bihar is that the petitioner also made statement in his petition that the petitioner was implicated after 45 days of the institution of the case which was instituted as far back as in March 2010. The detention order was passed after two months on 29.5.2010. The petitioner was definitely not named. We believe as per the statements of the learned senior counsel for the petitioner as also as per his stand taken in the present petition that he has been implicated for many reasons and it could not be out of place to note, that the same reason has been utilized as a ground for passing the detention order. 8. So far the second case, i.e., Laheri P. S. Case No. 87 of 2010 is concerned, admittedly the petitioner was not caught and nothing was recovered from his possession, different persons were caught and from their possession different articles were recovered for which initially a case under sections 467,468,470,471/34 of the Indian Penal Code and 20/25 of N.D.P.S. Act was registered, after having 7 registered Bihar P.S. Case No. 87 of 2010. The police came out with another case under the Arms Act alleging that the recoveries of Arms were made. While the recoveries of Psychotropic substance, relating to Bihar P.S. Case No. 87 of 2010 were made, we simply point out that Bihar P.S. Case 88 of 2010 was exclusive for Arms Act offences, which is a ground for drawing subjective satisfaction of such an authority like the District Magistrate, Nalanda besides the accused who is said to be named was Dharmpal Kumar, not this petitioner. Like wise in Bihar P.S. Case No. 87 of 2010, which was under different section of the Indian Penal Code as also under Section 20 and 25 of the N.D.P.S. Act. No Court in case of recovery of any psychotropic substance could grant bail to an accused unless it had recorded the satisfaction that there was reasonable ground to believe that the accused had not committed the offence. It hardly requires to be pointed out that in a simple case of recovery of any narcotic article, no court could record that there was no reasonable ground for believing that the accused had not committed any offence. The second ground which is required to record under section 37 of the N.D.P.S. Act, was that there is no possibility further in future that the accused would not commit the offence. This again could be a 8 very difficult proposition to be recorded by any court, who is asked to release the accused in any case on bail. Moreover, we find from the order of detention, specially its ground part, that the petitioner was already under incarceration in connection with different cases, probably in three cases which are the ground of the present detention order. If that was so, then there was no reasons for the District Magistrate, to be satisfied that the petitioner was to be out of jail on bail and was likely to create problem to the safety of the society. We have already discussed one of the grounds submitted by Shri Sinha which was cited before us in the case reported in 2010 (4) PLJR. 527 ( Arbind Choudhary Versus the State of Bihar) that if any of the cases are found untrue or if the accused was not named in any of the cases which form the basis for passing the detention order, then it could simply vitiate the recording of subjective satisfaction of the detaining authority. It was submitted by Shri Sinha that even if any of the three cases found not constituting appropriate ground for being satisfied then the present detention order falls to the ground. We have already noted that one of such cases is Laheri P. S. Case No. 40 of 2010, in which the petitioner was neither named in the First Information Report nor arrested on the spot, rather he was implicated after 9 45 days through a statement made by an accused before police which could hardly be a ground for passing the order of detention and that probably indicates as to how mechanically the District Magistrate, Nalanda had applied his mind for passing the order of detention. 9. We have expressed ourselves, as noted above, that the District Magistrate ought not to have passed the impugned order. We feel that if such powers, draconian in nature, are vested in the authorities, they should be more cautious in exercising their powers, as ultimately such exercise of powers could entail hardship to a citizen of this democracy. The order of detention passed by the District Magistrate, Nalanda vide Memo No. 1389/Legal dated 29.5.2010 as also the order of confirmation dated 7.6.2010 are quashed. The present petition is allowed and we direct that the petitioner be released forthwith, if not wanted in any other case. Devendra/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)