IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.168 of 2009 BABLOO TIWARI @ GOVIND TIWARI son of Dineshwar Tiwari, resident of Bihari Sao Lane, P.S. Pirbahore, District Patna… …Petitioner Versus 1. The State of Bihar through the Home Secretary at Patna, 2. The District Magistrate, Patna, 3. The Senior Superintendent of Police, Patna, 4. The Superintendent, Model Central Jail Beur, Patna, … Respondents For the Petitioner: Mr. Ram Suresh Roy, Sr. Advocate, With M/s. Dilip Kumar & Ranjeet Kumar, Advocates. For the S t a t e : Mr. Mani Kant Mishra, GP 21. ….. 5 31.03.2009 Heard learned counsel for both the sidces. The petitioner was detained pursuant to order dated 19.11.2008, issued by the District Magistrate, Patna under Section 12(2) of the Bihar Control of Crimes Act, 1981(hereinafter to be referred to as “Act”). Allegation against the petitioner was that he was an accused in Pirbahore Police Station Case No. 110/08 dated 31.05.2008 under sections 385and 387 read with section 34 of the Indian Penal Code and section 27 of the Arms Act. He was also an accused in Pirbahore Police Station Case No. 218/08 dated 23.08.2008 under sections 302/120B of the Indian Penal Code and section 27 of the 2 Arms Act. It is stated that he was granted bail in Pirbahore Police Station Case No. 218/08. Without any reason Kadamkuan Police Station Case No. 212/08 was registered under Arms Act even then no arms were recovered. It is the contention of the petitioner that at the time of occurrence of the crime in Pirbahore Police Station Case No. 110/08 the petitioner was not present at the place of occurrence. It is also submitted that no arms were recovered at any time from the possession of the petitioner. We are not considering the merits of detention order of the petitioner. We can only consider the procedural defect in the background of Article 22 of the Constitution of India. The petitioner was detained in custody on 19.11.2008 while he was already in jail before he was granted bail and order of detention was served on the petitioner on 20.11.2008. The petitioner filed a representation before the District Magistrate on 22.11.2008. It is stated that the representation of the petitioner was received on 26.11.2008 and the order of detention was approved by the State Government on 28.11.2008. On 08.12.2008 the representation filed by the petitioner was 3 forwarded by the District Magistrate to the State Government and the same was rejected by the State Government on 16.12.2008. It also appears that the second representation filed by the petitioner on 12.12.2008 was rejected by the State Government on 22.12.2009. It is further submitted that there was inordinate delay in disposal of the representation of the petitioner by the State Government. Learned counsel for the petitioner relied upon a decision rendered by a Division Bench of this Court in the case of Binod Yadav v. The State of Bihar and ors.(2007(Supplementary) Patna Law Journal Reports, 936). Contention of learned counsel for the respondent is that after approval of the detention order of the petitioner by the State Government, the District Magistrate has no power to pass order on the representation filed by him, and, therefore, non-consideration of the representation filed by the petitioner by the District Magistrate, detaining authority, is not a ground for quashing the order of detention on the ground of procedural irregularity. Learned counsel has relied on a decision of the Supreme Court in the case of Sri 4 Anand Hanumathsa Katare v. Additional District Magistrate and others((2006) 10 Supreme Court Cases, 725), wherein the Hon’ble Supreme Court held that the detenu has a right to make a representation before the detaining authority so long the order is not approved by the State Government, but the moment the State Government passed the order approving the detention, the detaining authority becomes functus officio, and, therefore, rejection of the representation by the detaining authority is not a ground for rejection of the detaining order. Learned counsel for the respondent also relied upon a decision of the Supreme Court in the case of Raj Kishore Prasad v. State of Bihar and ors.(AIR 1983 Supreme Court, 320), wherein non-consideration of the representation filed by the detenu by the detaining authority was not accepted as a ground for quashing the same, but the order of detention was quashed on account of inordinate delay in disposal of the representation filed by him. But the distinction made by learned counsel for the petitioner is that the petitioner filed representation before the detaining authority on 22.11.2008, but the order of detention was approved by the State Government on 5 28.11.2008. Even if it was received by him only on 26.11.2008 it could have been disposed of by him earlier. The representation filed by the petitioner was forwarded to the State Government by the District Magistrate only on 08.12.2008 and the same was rejected by the State Government on 16.12.2008. The detaining authority is required to pass an order on the representation filed by the petitioner. In the case of Kamleshkumar Ishwardas Patel and ors. V. Union of India and others((1995) 4 Supreme Court Cases, 51), a Constitution Bench of the Hon’ble Supreme Court held that when an Officer is specially empowered to pass an order of detention under COFEPOSA ACT/PIT NDPS Act, detenu has a right to make a representation to him and he is obliged to consider and dispose of the same, denying the right of the petitioner by the State Government or approval of the order by the Government. In this case we quote paragraphs 30, 31 and 46 of the judgment of the Hon’ble Supreme Court, which are as follows:- “30. The decision in Sushila Mafatlal Shah proceeds on two premises: (i) Article 22(5) does not confer a right to make a representation to the officer specially 6 empowered to make the order; and (ii) under the provisions of the COFEPOSA Act when the order of detention is made by the officer specially empowered to do so, the detaining authority is the appropriate Government, namely, the Government which has empowered the officer to make the order, since such order acquires “deemed approval” by the Government from the time of its issue. 31. With due respect, we find it difficult to agree with both the premises. Construing the provisions of Article 22(5) we have explained that the right of the person detained to make a representation against the order of detention comprehends the right to make such a representation to the authority which can grant such relief i.e. the authority which can revoke the order of detention and set him at liberty and since the officer who has made the order of detention is competent to revoke it, the person detained has the right to make a representation to the officer who made the order of detention. The first premise that such right does not flow from Article 22(5) cannot, therefore, be accepted. 46. The decision in Sat Pal and Raj kishore Prasad on which the High Court has placed reliance do not, therefore, detract from the law laid down in Santosh Anand. Having found that the representation of the person detained was not considered by the officer making the order of detention the High Court was in error in holding that the said failure on the part of the detaining authority to consider and decide the representation is not fatal to the order of detention. We are, therefore, unable to uphold the answer given by the Full Bench to Question No. 3 and, in our view, the said question should be answered in the affirmative. On that basis it has to be held that since there was a denial of the 7 constitutional safeguard provided to the detenu under Article 22(5) of the Constitution on account of the failure on the part of the officer who had made the order of detention to independently consider the representation submitted by the detenu against his detention and to take a decision on the said representation the further detention of the detenu Ishwardas Bechardas Patel is rendered illegal. The appeals, therefore, deserve to be allowed.” The aforesaid decision of five Judges of the Hon’ble Supreme Court is binding on us. In the present case, the detaining authority has received the representation filed on 22.11.2008 by the petitioner on 26.11.2008 before the order of approval of the detention order by the State Government on 28.11.2008, and he did not pass any order. Even after approval of the order of detention of the petitioner received from the State Government, the detaining authority did not pass any order on the representation filed by the petitioner. He took more than 12 days for even forwarding the representation to the State Government. It is submitted by learned counsel for the petitioner that the representation filed by the petitioner was forwarded by the detaining authority to the State Government only on 08.12.2008 and why the detaining 8 authority took so much time even in forwarding the representation of the petitioner to the State Government is not explained. The State Government rejected the same by order dated 22.11.2008 after inordinarte delay only on 16.12.2008, but the delay in disposal of the same has not been explained at all, therefore, the order detaining the petitioner is illegal, arbitrary and fit to be quashed as it violates procedural safe-guards guaranteed by Article 22 of the Constitution of India. For the foregoing reasons, we set aside the order of detention passed against the petitioner and he is directed to be released from custody forthwith, if he is not required in any other case. (J.B. Koshy, CJ) SC ( Dr. Ravi Ranjan, J.) 9