IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1078 of 2010 RAJ KUMAR SINGH . Versus THE STATE OF BIHAR & ORS . ----------- 6 14.12.2010 Heard counsel for the petitioner and the counsel for the State. Petitioner’s prayer is for quashing of the order as contained in Memo No.946/Legal dated 1.7.2010 passed by the District Magistrate, Begusarai, whereby the petitioner has been detained under Section 12(2) of the Bihar Control of Crimes Act, 1981, hereinafter referred to as the Act, and for quashing the order dated 18.8.2010 issued under the signature of Under Secretary to Government, whereby the State Government has confirmed the detention order passed by the District Magistrate, Begusarai. As per the order of confirmation, the petitioner has been directed to remain under detention till 30.6.2010. The Superintendent of Police, Begusarai made a recommendation for detention of petitioner vide his letter dated 12.6.2010 stating that the petitioner is presently in custody in connection with criminal case but 2 if he comes out of jail, the life of general people will be endanger. Mainly two cases were taken as ground for detention in the recommendation letter of the Superintendent of Police, Begusarai. Those two cases were Barauni ( F.C.I) P.S. case No. 195 of 2009 dated 3.7.2009 instituted for offence under Section 364A/365 of the Indian Penal Code and Barauni ( F.C.I.) P.S. case No. 297 of 2009 dated 1.10.2009 instituted for offence under Sections 147,148,149,341,307,326,302 of the Indian Penal Code and 27 of the Arms Act. Eight cases were also mentioned in order to show the criminal history of the petitioner. On the basis of the recommendation of the Sponsoring authority, the District Magistrate, Begusarai passed order of detention dated 1.7.2010 under Section 12(2) of the Act. The order of the District Magistrate, Begusarai was approved by the Government of Bihar, Home (Police) Department for petitioner’s detention in the public interest. The detention order was communicated to the petitioner through the Superintendent of Jail, Begusarai with a liberty to file representation against the order of detention. The petitioner immediately sent his representation through 3 the Superintendent of Jail, Begusarai to the Joint Secretary, Home (Police) Department, Government of Bihar, clarifying the entire facts, in order to show that he is not a habitual offender and an anti-social element. In his representation it was stated by the petitioner that the Sponsoring authority, while recommending detention of the petitioner has concealed material facts from the detaining authority. The detaining authority without applying its individual mind and without appreciating the relevant materials fact has passed the detention order. Out of eight cases, in order to show the criminal history of the petitioner, he has been acquitted in two cases. Those cases have also been included in the list, in order to prejudice the mind of the detaining authority. Petitioner has been acquitted in connection with Barauni P.S. case No. 27 of 1998 and in connection with Barauni P.S. case No. 167 of 2005 by the trial Court. Since detention order has been passed in mechanical way, as such it is unjust and illegal in the teeth rights guaranteed under Article 21 of the Constitution of India. Two cases considered as immediate grounds 4 for detention i.e., Barauni (FCI) P.S. case No. 195 of 2009 and Barauni (FCI) P.S. case No. 297 of 2009 are also examples of total non-application of mind. In the first case the petitioner has been granted anticipatory bail vide order dated 5.5.2010 passed in Criminal Misc. No. 16688 of 2010. In the second case i.e., Barauni (FCI) P.S. case No. 297 of 2009 petitioner was not named as an accused. His name was added at the subsequent stage after 13 days of the alleged occurrence. The deceased never named this petitioner as an accused, though he remains alive for six months and his statement was recorded by the Investigating Officer. The petitioner has also been granted bail in this case as well. The Sponsoring authority concealed these relevant facts from the detaining authority. The detaining authority, who is duty bound to inquire into the matters before passing the detention order , has done nothing, he passed the detention order being influenced by the long list of irrelevant cases furnished by the Sponsoring authority and detained the petitioner under Section 12(2) of the act. It has been submitted by the counsel for the petitioner that the grounds furnished by the Sponsoring 5 authority for detention are not relating to public order. These are the cases which have been instituted for personal vengeance, as such it could not have been made a ground for detention under the provisions of Bihar Control of Crimes Act. While passing the detention order, the detaining authority has to be very careful to make a distinction between the public order as well as law and order. Cases which only affects an individual, cannot be considered relating to public order. None of the two cases taken as ground could have been a matter relating to public order and thus sufficient for detention of the petitioner. Besides this, the petitioner has also taken a ground for challenging the detention order stating that the representation, which was immediately filed by the petitioner and sent to the State authorities through the Superintendent of Jail, Begusarai, remained undecided and unconsidered till the date, the detention order was confirmed under Section 21(2) with Section 22 of the Act. The order, whereby the representation of the petitioner was rejected vide letter No. 1113 dated 2.8.2010 is an order without assigning any reason for its 6 rejection. There is unexplained delay in disposal of the representation by the authorities. The Act provides that the representation filed by a detenu must be disposed off within the time specified under the Act and then only the detention order should be confirmed by the State Government. The reason has also to be assigned by the authorities and the detention order is to be communicated to the detenu immediately. All these mandatory provisions has completely been overlooked by the authorities, the detention order as well as the confirmation order both have been passed in complete violation of the statutory provisions as well as the provisions under the Constitution of India. On the basis of such illegal orders, liberty of a citizen cannot be curtailed but that has been done in the instant case. In the counter affidavit filed on behalf of the District Magistrate, Begusarai, it has been stated that the petitioner availed the opportunity and submitted his representation before the State Government. It has been stated that the representation of the petitioner was rejected vide letter No. 1113 dated 2.8.2010 but the petitioner in his supplementary affidavit has stated that 7 the representation of the petitioner was rejected on 18.8.2010 and sent to the Jail authorities on 25.10.2010 and after almost after7 days of rejection, it was communicated to the petitioner on 25.10.2010 itself. There is 35 days delay in disposal of the representation but the same has not been explained. This in itself is the fittest ground for quashing of the order of detention. On consideration of the entire facts, we find that the detention order has been passed in mechanical manner by the District Magistrate, Begusarai, without there being his own subjective satisfaction he was completely guided by the recommendation of the Superintendent of Police, Begusarai, which is apparent from the facts that the cases in which the petitioner was acquitted have been taken as criminal history and the case in which the petitioner has already been released on bail, have been taken as immediate cause for danger to the public order. The District Magistrate, Begusarai did not consider that the public order and the law of order are two distinct things. The case relating to law and order cannot be made a ground for detention unless it affects the entire society and the public at large. There is 8 nothing to show that except the complainant, any other person was going to be affected on account of those two cases, which were taken as ground for detention. We also find that on account of unexplained delay in disposal of the representation and that also without assigning any reason, is also another ground for quashing of the detention as well as the confirmation orders. Both the impugned orders dated 1.7.2010 and 18.8.2010 are quashed. This application is allowed. Petitioner is directed to be released forthwith if he is not required to remain in custody in connection with any other case. A.Kumar ( Mridula Mishra, J.) (Dharnidhar Jha,J.)