IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.410 of 2011 Shankar Chaudhary @ Shankar Kumar, son of Late Ganesh Chaudhary, resident of Mohalla-Ghosh Lane, Nimtar Devi Asthan, Police Station-Gardanibagh, District-Patna. ………………………………………………………Petitioner. Versus 1. The State Of Bihar through District Magistrate, Patna. 2. The Senior Superintendent of Police, Patna. 3. The Secretary, Home Department, Government of Bihar, Patna. …………………………………………………Respondents. ----------- 6. 7.7.2011. A counter affidavit has been filed on behalf of the Respondent No.3 today. Let it be kept on record. Earlier, counter affidavit has been filed on behalf of Respondent Nos.1 and 2. Heard learned counsel for the petitioner and the State. The petitioner has come before this Court with a prayer to quash the order dated 10.9.2010 passed by the District Magistrate, Patna, as contained in Memo No.2426 dated 10.9.2010 (Annexure-‘1’ to this application) by which the order under Section 12 (2) of the Bihar Control of Crimes Act was issued. The petitioner was directed to be detained for the 2 period of one year by the aforesaid letter. At that time, the petitioner was in judicial custody in connection with Gardanibagh P.S. Case No.1235 of 2010 but he was granted bail by the competent court. Learned counsel appearing on behalf of the petitioner submits that the cases which have been relied upon by the detaining authority are Gardanibagh P.S. Case No.56 of 2009 dated 7.4.2009 under Section 392 of the Indian Penal Code and Gardanibagh P.S. Case No.84 of 2009 dated 31.5.2009 under Sections 399/403 of the Indian Penal Code and 25(1b) A/26/35 of the Arms Act and in both the cases the petitioner was in custody. In Gardanibagh P.S. Case No.386 of 2005, the petitioner was acquitted on 29.4.2006 and subsequently in both the aforesaid two cases, i.e., Gardanibagh P.S. Case No.56 of 2009 and Gardanibagh P.S. Case No.84 of 2009, the petitioner was granted bail by the competent court. The petitioner claims to have been under judicial custody due to his false implication. It has also been submitted that the detention order was passed on 10.9.2010 by the District Magistrate, Patna and was confirmed by the Home (Police) Department, Government of Bihar, Patna on 22.11.2010. Subsequently, on 18.12.2010, the petitioner filed 3 a representation before the Secretary, Home Department, Government of Bihar, Patna for cancellation of the order of detention under Section 12(2) of the said Act on the ground that the order was passed without application of mind as the facts which were considered by the detaining authority were not enough which could have compelled the respondents to take recourse of such preventive measures. Learned counsel for the petitioner submits that the petitioner has filed the representation on 18.12.2010 and the same was disposed of by the concerned authority on 24.2.2011. It appears that earlier the petitioner had challenged the order of detention vide Cr.W.J.C. No.1247 of 2010 but the same was dismissed on 10.3.2011. On behalf of the respondents, the detention order has been justified on the ground that the petitioner is an anti social element involved in a series of heinous crimes disturbing the law and order. Learned counsel for the State submits that no representation against the detention order was filed by the petitioner on 18.12.2010 rather it was filed on 6.1.2011 and the same was received in the concerned office alongwith the comment of the District Magistrate, Patna. The Advisory Board of this Court heard the petitioner in person on 4 6.10.2010 and the petitioner was given full opportunity to represent and explain his case but he could not convince the Board and the Board has opined that sufficient cause exists for detention of the petitioner under the said Act and accordingly the detention order was passed. It has also been submitted that the representation of the petitioner alongwith the comment of the District Magistrate, Patna and the opinion of the Advisory Board have been thoroughly examined by the State Government at different levels by the concerned Sections of the Department on 14.2.2011 and thereafter the file moved before the Under Secretary on 17.2.2011 and thereafter before the Joint Secretary on 17.2.2011 and thereafter before the Home Secretary on 17.2.2011 and lastly before the Hon’ble Chief(Home) Minister for necessary approval on 21.2.2011 and thereafter the Government took the decision to reject the representation of the petitioner on 24.2.2011 as the Government was of the considered view that it is difficult to maintain the public order unless the petitioner is not detained in judicial custody. The preventive detention is one of the provisions of law. A person is entitled to all civil liability and civil liability can only be curtailed in exceptional circumstances and the 5 exception must be of such nature which can be justified that the curtailment of such right was essential for the welfare of the society. The interest of the society is paramount and the preventive measures are taken to see the interest of public at large and for that some provisions have been made which envisage that in exceptional cases civil liability can be curtailed. The Control of Crimes Act is one of such law through which the civil liability can be curtailed and a person can be detained but for that the authority would have to act with full sincerity and if it is found that the authority has not acted properly, the concerned order cannot be upheld. In the present case, the petitioner has represented on 6.1.2011. Though the respondents have tried to justify the long delay in disposal of the representation of the petitioner but that has not been justified because there is no explanation at all as to why the representation of the petitioner was kept pending so long before the authorities between 6.1.2011 to 14.2.2011. Though, this delay could not be intentional but if the authorities have failed to explain as to what was the cause of delay then this Court has only option but to cancel the order of detention. In the opinion of this Court, the respondents have 6 not explained the delay in disposing of the representation of the petitioner and, thus, it can be said that they have not acted properly and in true spirit as are expected by them. Accordingly, the order of detention as contained in Annexure-‘1’ is set aside and this writ application is allowed. P.S. (Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J)