IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.633 of 2011 Chotu @ Chotan @ Sanjay @ Suraj Kumar Versus The State of Bihar & Ors ----------- 04 04.08.2011 The petitioner has filed this writ petition seeking a writ in the nature of Habeas Corpus. He is in preventive detention under the Bihar Crimes Control Act, 1981. The detention order was issued by the District Magistrate-cum-Collector, Patna vide his order dated 21.10.2010, which was served upon him, which is part of Anneuxre-1, and petitioner was taken in preventive custody on 22.10.2010. This order appears to have been confirmed by the State Government by its order dated 29.10.2010 and a copy of this order was served on the petitioner on 02.11.2010. In this writ petition two grounds have been taken to challenge the order of detention. Firstly, that in all the four criminal cases that are mentioned petitioner has been falsely implicated and has been released on bail. As such, it could not a ground for ordering detention. The second ground is taken in paragraph-2 of the writ petition which states that before the impugned detention order dated 22.10.2010, petitioner was not given an opportunity of hearing and, thus, the order was bad for violating the principles of natural justice. A counter affidavit has been filed in which it is stated that the Collector-cum-District Magistrate, Patna exercising jurisdiction under Section-12 of the Bihar Crimes Control Act, 1981 passed an order upon his subjective satisfaction. Police upon 2 investigation found petitioner involved in large number of cases and he was a public order problem in the locality. It is further stated that there is no requirement of notice prior to issuance of detention order as the order is a preventive detention order. We have considered the matter, in our view, both the grounds as raised by learned counsel for the petitioner are misconceived. It is well settled that a preventive detention order is based upon subjective satisfaction of the detaining authority and this Court cannot substitute its views in its place. The sufficiency of material cannot be gone into so long as there are materials on record and there is nexus between them and the detenue. Here, it is clear that the petitioner is not only accused but even charge sheeted in some of the cases. He may have been granted bail by the Court below but that does not deter from the fact that there are materials for subjective satisfaction of the detaining authority. The next ground is equally misconceived. It is an order of preventive detention and it does not contemplate of a pre-detention order show cause notice to the detenue, the whole purpose of preventive detention order would, thus, stand defeated if opportunity of hearing is to be granted before he is detained. It is because of this reason law contemplates post facto hearing which preserves a right of detenue. Thus, we find there is no merit in the writ petition. As a last ditch effort, learned counsel for the petitioner submitted referring to the detention order and the order of 3 approval granted by the State Government that it has not been discussed as to whom representation has been filed. We have perused the detention order and the order of the approval both of which are part of Anneuxre-1 of the writ petition. The detention order as issued by the Collector-cum-District Magistrate, Patna clearly states that if the detenue is aggrieved by the order of detention he should sent his representation through the Superintendent of the Jail where he is detained. In our view, this is sufficient compliance of grant of opportunity to the detenue to make a representation. It may be noted that when the detention order is issued by the Collector or the District Magistrate he thus shows without even the knowledge of the State Government and, thus, the right of representation is to the Collector. That right has been granted to him and he duly received the said detention order on 22.10.2010 itself. It is now almost a year he has not chosen to make any representation to any authority. We then come to the order of the State Government granting approval of detention. That is the order dated 29.10.2010, which was served on the detenue on 02.11.2010. A reference to the said order would itself shows that it clearly mentions that representation may be sent to the Home Police Department through the Superintendent of Jail against the detention. We may again notice here that it is for the first time the detention comes to the notice of the State Government when the file is received from the District Magistrate for granting approval which has to be done within 12 days of the 4 detention immediately when it is approved. The State Government informed the detenue of his right to make representation. It is not in dispute that even against this the detenue made no representation. Learned counsel for the petitioner submitted that the State has not mentioned anything about these facts in the counter affidavit. In our view, State need not have mentioned this ground that was never taken in the writ petition and is being urged for the first time in course of hearing. What is not mentioned in the writ petition need not reply and, if it is not urged and replied, that cannot be made issue before this Court and no adjudication is possible. In view of the facts stated above, this writ petition lacks merit and is dismissed accordingly. Trivedi/ (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)