IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.544 of 2010 ARBIND CHOUDHARY,SON OF LATE RAM SEVAK CHOUDHARY, RESIDENT OF VILLAGE FATIHA, P.S. BACHHWARA, DISTRICT BEGUSARAI-------- PETITIONER . Versus 1. STATE OF BIHAR, THROUGH THE SECRETARY, DEPARTMENT OF HOME(POLICE), GOVERNMENT OF BIHAR, PATNA. 2. SECRETARY, DEPARTMENT OF HOME (POLICE), GOVERNMENT OF BIHAR, PATNA. 3. ADDITIONAL SECRETARY, DEPARTMENT OF HOME(POLICE), GOVERNMENT OF BIHAR, PATNA. 4. UNDER SECRETARY, DEPARTMENT OF HOME (POLICE), GOVERNMENT OF BIHAR, PATNA. 5. DISTRICT MAGISTRATE, BEGUSARAI 6. SUPERINTENDENT, BEGUSARAI JAIL, DISTRICT BEGUSARAI- -------RESPONDENTS. ----------- For the Petitioner:- Mr. Ajay Kumar Thakur,Mr.Ravi Ranjan,Advs. For the State:- Mr. Prasoon Sinha, G.A-III 5 6 .8.2010 Petitioner has filed this application for quashing of the order dated 19.2.2010 passed by Under Secretary, Department of Home (Police), Government of Bihar, as contained in letter No. 1411, approving the order of detention passed by the District Magistrate, Begusarai, by the State Government under Section 21(1) and 22 of the Act. Further prayer is for quashing of the order dated 26.12.2009 contained in letter 2 No. 1810 issued by the District Magistrate, Begusarai to detain the petitioner under Section 12(2) of the Bihar Control of Crime Act, for one year, hereinafter referred to as 'Act'. Petitioner is presently member of Begusarai Zila Parishad from Ward No.2 and earlier elected Mukhia of Fatiha Gram Panchayat, in the district of Begusarai. The District Magistrate, Begusarai passed an order of detention under Section 12(2) of the Act, on the recommendation made by the District Superintendent of Police, Begusarai dated 26.12.2009. The Sponsoring Authority has made a recommendation for detention of the petitioner on the ground that petitioner is professional criminal, indulging in activities like murder, dacoity, road robbery and other cognizable offences. Due to his criminal 3 activities, the common people are living in terror and their lives are adversely affected. Presently, he is in custody in connection with criminal cases in case he comes out of the jail the general people will be in danger. The Superintendent of Police made his recommendation giving criminal history of the petitioner and grounds for his detention. List of ten cases were given to show the criminal history of the petitioner, which included (i) Bachhwara P.s. case No. 31 of 2004,(ii) Bachhwara P.s. case No. 13 of 2008,(iii) Dalsinghsarai P.s. case no. 71 of 1999, (iv) Vidyapati P.S. case No. 37 of 1998,(v) Vidyapati P.S. case no. 86 of 1995, (vi) Bachhwara P.S. case No.72 of 2001, (vii) Bachhwara P.S. case No. 88 of 1991,(viii) Bachhwara P.s. case No. 48 of 2001 and (ix) Dalsingsarai P.s. case No. 53 of 1998. Four cases were mentioned as ground for passing 4 detention order, which included Bachhwara P.S. case No. 67 of 2009, Bachhwara P.s. case No. 68 of 2009 Bachhwara P.S. case No. 101 of 2009 and Bachhwara P.s. case No. 108 of 2009. The Collector, Begusarai considering the recommendation of the Sponsoring authority passed order of detention under Section 12(2) of the Act on 26.12.2009. The order of the District Magistrate, Begusarai passed under section 12(2) of the Act was approved by the State Government under Section 12(3) of the Act and referred to the Advisory Board under Section 19 of the Act. Petitioner filed his representation against the detention order on 14.1.2010. The Superintendent of Jail, Begusarai and the District Magistrate, Begusarai, were asked to furnish the comments on the representation of the petitioner by the Home(Police) 5 Department through letter no. 466 dated 15.1.2010. Receiving the comment of District Magistrate, Begusarai on 18.1.2010, the State Government got it examined at different levels and also by the Home Secretary and finally the detention order has been approved by the Chief Minister on 24.1.2010 and the State Government confirmed the detention order under Section 21(1), read with Section 22 of the Act by order dated 19.2.2010. The detention order as well as its confirmation by the State authority has been challenged by the petitioner on two grounds (i) the Sponsoring authority while recommending for detention of the petitioner has concealed several material facts from the Detaining authority and Detaining authority passed order of detention on that very recommendation. Ten cases were referred in 6 order to show criminal history of the petitioner. The first case is under the Arms Act, which cannot be looked into under the Control of Crimes Act as the case relating to Arms Act could not have been made a ground under culminated in conviction. In Vidyapati P.S. case No. 37 of 1998 in place of section 392 of the Indian Penal Code, Section 302 I.P.C. has been mentioned and the police after investigation found the accusation against the petitioner as incorrect and accordingly submitted final report being final Report No. 1 of 1999 and the same has been accepted by the Court on 22.10.2001. In Vidyapati P.S. case No. 86 of 1995 final form has been submitted being Final Report no. 19 of 1998 and the same has been accepted by the Court on 18.6.2001 after issuing notice to the informant. Entire Criminal proceeding has also been dropped 7 by the Court in Vidyapati P.S. case No. 37 of 1998 and Vidyapati P.S. case No. 86 of 1995. In Bachhwara P.s. case No. 72 of 2001 petitioner was not sent up for trial. In Bachhwara P.s. case No. 48 of 2001 petitioner was acquitted on 13.2.2007 by the Judicial Magistrate, Ist Class, Begusarai. In Dalsingsarai P.s. case No. 53 of 1998 no witness has named the petitioner. Nothing has been recovered from his possession. He is not named in the First Information Report and also not put on Test Identification Parade but his case is still pending. The cases at serial nos. 2 and 10 are same and just to prejudice the mind of the Detaining authority twice it has been included in the list. Counsel for the petitioner submits that the list of cases, which have been mentioned, in order to show criminal history, 8 shows the biased attitude of the Sponsoring Authority. Cases in which the petitioner has not been sent up for trial, cases in which he has been acquitted, all those cases have been included in the list just to prejudice the mind of the Detaining Authority for passing an order against the petitioner under the Control and Crime Act. So far the Detaining Authority is concerned, he also without applying his mind, without making any independent inquiry, which is required under the Act for passing any detention order, considered the list of such cases as the criminal history of the petitioner and thus passed the detention order. It has also been submitted by the petitioner's counsel that four cases, which have been considered as immediate ground for detention are example of total non- application of mind. Out of the four cases, 9 the petitioner has been acquitted in two cases i.e. Bachhwara P.S. case No. 67 of 2009 and Bachhwara P.S. case No.68 of 2009. This fact has been concealed by the Sponsoring authority and without any application of mind the Detaining Authority simply on the basis of the recommendation of the Sponsoring authority has treated the same as immediate ground for detention. So far 4th case i.e. Bachhwara P.S. case no. 108 of 2009 is concerned, the petitioner has been named as accused actively participating in the occurrence, which took place at 4 P.M. on 10.7.2009. In fact the petitioner had already surrendered on 10.7.2009 in between 10.30 to 11 A.M. before the Chief Judicial Magistrate, Begusarai, in connection with Bachhwara P.S. case No. 101 of 2009 and he was taken into custody. Despite this fact, he was made as accused by Deputy 10 Superintendent of Police, who is biased against the petitioner for the reason that on the basis of the complaint lodged by the petitioner, an enquiry was conducted against him. Allegations were found to be true and action has been taken against him. Since that date, the petitioner is repeatedly being named as accused in one or other cases. Bachhwara P.S. case No. 108 of 2009, is also one of the example of false implication at the instance of Dy.S.P., though at the time of occurrence, the petitioner was in custody. In sum and substance petitioner's case is that except Bachhwara P.s. case No. 101 of 2009, there is no other case in which the petitioner can be deemed to be an accused. Such cases cannot be treated as a ground for detention of the petitioner. All these facts clearly show that the Sponsoring authority did not bring the real facts to the 11 notice of the Detaining authority and the Detaining authority being influenced by the long list of cases, which were all irrelevant, passed an order under Section 12(2) of the Act. Since, detention order is being on non existing ground, it is illegal and fit to be quashed. The State Government also confirmed the detention order passed by the District Magistrate, Begusarai under section 12(2) of the Act, without considering the representation of the petitioner; as such this order was also in complete disregard of the mandatory provisions of passing an order of detention under the Bihar Control of Crimes Act. Counter affidavits have been filed on behalf of the District Magistrate, Begusarai and also the Under Secretary, Department of Home (Police), Government of Bihar, Patna. 12 The District Magistrate, Begusarai in reply to the Statement made in paragraph 23 of the writ application relating to Bachhwara P.S. case No. 108 of 2009 stated that the petitioner was named as accused, despite the fact that he was in custody as he was an abettor. The Supplementary affidavit filed by the District Magistrate, Begusarai with which the First Information Report has been annexed, do not corroborate the statement regarding petitioner being an abettor of the crime. The allegation in the first Information Report has shown him as an active participant of the crime. Admittedly the petitioner was named as accused while he was in custody, this shows that the District Magistrate passed the detention order without thoroughly making an inquiry relating to the grounds for which a detention order was passed against the petitioner. 13 Petitioner has relied upon a decision reported in the case of R. Kalavathi Vs. State of T.N. and others (2006) VI SCC 14, which relates to non- application of mind. In that case the detenu was alleged to be a "goonda" habitually committing crime and also acting to the manner prejudicial to the maintenance of public order. In that case, the grounds of detention referred only one incident. In absence of any material showing that the detenu was habitually committing crimes, it was held that the facts, detenu was covered by the definition of "goonda" and the detention order was considered as an order showing non-application of mind. Counsel appearing for the petitioner while assailing the impugned order has submitted that even otherwise the grounds furnished by the Sponsoring authority as the basis for detention are not relating to the 14 public order; rather these are individual cases relating to law and order. It has been submitted that there being a very fine distinction in between an Act, which can be considered as public order or law and order, the authority, while passing a detention order has to be very careful. Same Act can relate to public order at one place if affects the life and peace of local people, but if its' effect is individualistic, it will be a matter relating to law and order. Facts relating to all cases, indicate that it do not relate to public order. It is also submitted by the petitioner's counsel that what has to be seen is the effect of the Act on the life and property on society. Reliance has been placed by the petitioner on a decision reported in the case of K.K. Saravana Babu Vs. State of Tamil Nadu and another 15 (2008)IX 89, wherein it has been held that while passing an order of detention, it has to be seen whether detenu's activity has any impact on the local community and it will disturb the even tempo of the life of the community of that specified locality. Counsel appearing for the State in support of his contention that repeated criminal activity, brings the petitioner within the definition of anti-social element and his acts as detrimental to public order, has placed reliance on several decisions reported in the case of Sanjay Rai vs. State of Bihar 2007 (1) PLJR 645, Ram Babu Sahni Vs. State of Bihar 2002(4) PLJR 672, Subodh Yadav vs. State of Bihar 2004(3) PLJR 70, Pappu Kumar Singh Vs. State of Bihar 2005(2) PLJR 17 and 2000(3) PLJR 1. It has also been held that it is the question of subjective satisfaction of the Detaining 16 authority and the High Court should not enter into the domain of the subjective satisfaction of the Detaining authority. I find that the grounds which have been taken into consideration in the present case for the purposes of detention are not liable to be considered as a ground, for the reasons that out of four cases the petitioner is acquitted in two cases and in one case there is clear evidence of his false implication. There remains only a solitary case i.e. Bachhwara P.S. case no. 101 of 2009. The facts of that case do not disclose that it relates to the public order. Criminal cases instituted against the petitioner in the past or within six months in the year 2009, even then by no stretch of imagination can be called prejudicial to public order. These are the cases in which the detenu can be dealt with under the ordinary criminal law 17 and there is no reason for exercising exceptional jurisdiction, under Bihar Control of Crimes Act curtails the life and liberty of a citizen of the country without observing the law of a land. Counsel for the petitioner has placed reliance on the decision reported in the case of K.K. Saravana Babu vs. State of Tamil Nadu and another (2008) IX SCC 89, where it has been held that it has to be seen whether the detenu activities had any impact on the local community and had the act of the detenu even tempo of the life of the community of that specified locality. When the detenu can be dealt with under the ordinary criminal law, detention order is illegal and hence quashed. Long list of cases included in the criminal history and the four cases grounds for the purposes of detention being non- 18 existent, so it cannot be held that the petitioner is repeatedly indulging himself in criminal activities. Since all these long list of cases, detention order is being itself an example of total non-application of mind and the order passed under Section 12(2) and its confirmation under Sections 21(2) and 22 of the Act are fit to be quashed. I find substance in the submission of the counsel for the petitioner. This is a case in which the Detaining authority has not applied his independent mind while passing the detention order. He has been guided by the recommendation of the Sponsoring authority but the mandate of the legislature for passing an order of detention is that the Detaining authority will pass an order of detention, on being satisfied of this fact that the persons who is going to be detained. Since this aspect is completely 19 missing in the present case, the order of detention passed by the District Magistrate, Begusarai dated 26.12.2009 contained in letter no. 1810 and the order of affirmation passed by the State Government dated 19.2.2010 as contained in letter no. 1411, are fit to be quashed. The Criminal writ application stands allowed. (Mridula Mishra,J.) (Dharnidhar Jha,J) A.Kumar