IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.193 of 2011 Butan Sharma, son of late Ramanand Sharma, Resident of village Puran, P.S. Karpi, in the district of Arwal .. Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2. The Home Secretary, Government of Bihar, Patna 3. The Under Secretary Home (Police) Department, Government of Bihar, Patna 4. The District Magistrate, Arwal, Bihar 5. The Superintendent of Police, Arwal, Bihar 6. The Jail Superintendent of Divisional Jail, Jehanabad, Bihar .. Respondent **** For the petitioner .. M/S Akhileshwar Prasad Shivendra Prasad, Advs. For the State .. Mr. Shashi Bhushan Kumar, S.C. VII **** /6/ 20 May 2011 Heard the learned counsel for the petitioner and the State. 2. This is an application for issuing a writ in the nature of habeas corpus for release of the petitioner/detenue from preventive detention by the District Magistrate, Arwal, vide it’s order, dated 27.10.2010, passed under Section 12(2) of the Bihar Control of Crimes Act, 1981, (hereinafter referred to as, ‘the Act’) and it’s confirmation by the State Government 2 issued under the signature of the Under Secretary of the State of Bihar by it’s order, dated 28.12.2010. 3. The fact, in narrow compass, is that the District Magistrate, Arwal, passed the order, dated 27.10.2010, while the petitioner was in custody, in connection with Karpi P.S. Case No. 88 of 2010 and Karpi P.S. Case No. 57 of 2010, on the ground that the petitioner is involved in these case with other cases for offence under Section 384 and allied sections of the Penal Code has disturbed the public order and his coming out of the jail will disturb the public order as act of the petitioner is prejudicial to the public order. The said order of detention was approved by the State Government on 06.11.2010 and finally confirmed by the State Government on 28.12.2010 after the confirmation of the Advisory Committee. 4. The learned counsel for the petitioner, however, challenged the order of detention on the grounds that the act alleged against the petitioner is a problem of law and order and not public order and, further, on the ground that the representation of the petitioner was filed on 06.11.2010, which has been disposed off on 28.12.2010 and, hence, there is delay of about 52 days in disposal of 3 the representation and, hence, delay in disposal of the representation is a violation of the constitutional safeguards enshrined under Article 22(5) of the Constitution of India. 5. The State has filed a counter affidavit explaining the delay and it has been accepted that the representation of the petitioner was received in Jehanabad Jail on 06.11.2010, the matter was referred to the Advisory Committee and the comment of the District Magistrate was asked. However, it has been asserted that the comment of the District Magistrate, dated 15.11.2010, was received in the Department on 07.12.2010. However, there is no explanation why this delay from 15.11.2010 to 07.12.2010 for sending the representation from the District Magistrate to the Government occurred. However, it has been asserted in the counter affidavit filed by the State that the District Magistrate, Arwal, has been asked by the Department to explain delay in sending the representation from 15.11.2010 to 07.12.2010 and, further, the copy of the letter of the Under Secretary has been annexed as Annexure ‘C’ to the counter affidavit by which a report has been called for why there is delay in sending the 4 comments of the District Magistrate, dated 15.11.2010 to 07.12.2010. However, the letter for comment of District Magistrate has been sent by the Under Secretary on 25.03.2011, but, no explanation has been given by the State uptill the date of hearing of the petition. However, on receipt of the comments of the District Magistrate by the State Government the representation of the detenue along with comments of District Magistrate was sent in the Section on 16.12.2010 and then to the Under Secretary on 20.12.2010, Joint Secretary on 20.12.2010, Home Secretary on 21.12.2010 and finally the approval of the Chief Minister was recorded on 24.12.2010 rejecting the representation of the petitioner. However, there is no explanation for the period from 07.12.2010 to 16.12.2010 when the comment of the District Magistrate was received in the Department on 07.12.2010. 6. The learned counsel for the State, however, contends that the delay has been explained and placed reliance upon decision reported in (2006) 5 S.C.C. 142 (D. Anuradha Vrs. Joint Secretary & Anr.) where the delay of 19 days in a case under COFEPOSA has been explained and held not fatal and, further, relied upon a decision 5 reported in (2004) 13 S.C.C. 668 (Lilly Vrs. Chief Secretary to Government of T.N. & Ors.) where the plea was taken that the matter was considered at various level before the order passed by the authority concerned in rejecting the application and it was also stated that the matter has been in active consideration throughout the period in question. However, in this case, it has not been mentioned that in fact what was the period of delay, which was allowed, but, it has been held that if there is due consideration of representation that there has been some small delay due to movements of the file from one authority to other is not fatal. The learned counsel for the State has, further, relied upon an unreported decision of this Court passed on 27.03.2009 in Cr.W.J.C. No. 1226 of 2008 (Subedar Yadav @ Sntanjee @ Ramashanker Jee Vrs. The State of Bihar & Ors.) where the delay of ten days was considered to be not fatal. In the facts and circumstances of the case it was held that ten days’ delay in disposal of the representation has reasonably been explained and merely ten days delay can not be a ground to quash the order of detention considering the nature of the allegation and explanation for the detention and the Court 6 considered that the petitioner having been charged in about six cases with specific case number and other cases also being pending and, further, a request was made to the District Magistrate for comment and when comment was not received then reminder was sent and the District Magistrate then asked comment from the authority, i.e., Superintendent of Police, and, thereafter the commend was sent to the Deputy Secretary and after considering the same, the representation was rejected and in these facts held that the delay of ten days has properly been explained. 7. The learned counsel for the State submits that there are series of cases against the petitioner and the delay in disposal in fact and circumstance is not fatal, hence, the order of detention is sustainable. 8. On the respective submissions of the parties the question for consideration whether the order of detention passed by the District Magistrate on the grounds mentioned is a law and order problem or public problem and is sustainable in the eye of law. 9. The next question for consideration whether the delay in disposal of representation is fatal as violative of the constitutional safeguards provided under Article 7 22(5) of the Constitution of India. 10. Five cases have been referred against the petitioner in the ground of detention with allegation mainly with regard to the demand of rangadari, which has adverse effect on society and the society, at large, was at fear. The allegation is that the petitioner used to demand rangadari from the brick kiln owner and for non- fulfillment of rupees one lakh assault the labourers and set on fire the tractor standing at the brick kiln and even in one of the cases it is alleged that accused in a case of firing at bus stand threatened to murder. 11. However, taking into consideration the allegation made against the petitioner is not only a law and order problem, but, public order as it affects the society at large and taking into consideration the length, magnitude and intensity of terror by the act alleged, but, it extended to the public order and the satisfaction of the District Magistrate is a substantive satisfaction and this Court can not consider objectively. 12. Hence, taking the nature of the allegation there is no merit in the submission that the ground on which order of detention passed by the District 8 Magistrate is not concerned with the public order. 13. However, the second point raised about the delay disposal of the representation is concerned, the order of detention was passed when the petitioner was in jail and the order of detention was passed on 27.10.2010 and the same was served on the petitioner on 28.10.2010, the petitioner filed the representation on 06.11.2010, which was disposed off on 28.12.2010 and, hence, there is delay of 52 days. 14. However, the counter affidavit has been filed by the State and it has been stated that the copy of the representation, by the Superintendent of the concerned Jail, was sent to the Government, which was received in Government on 09.11.2010 and the same was sent to the District Magistrate and the District Magistrate for the comment, along with the letter, dated 15.11.2010, but, it was received in the Government on 07.12.2010. There is no explanation for the period from 15.11.2010 to 07.12.2010. However, it has been stated that the comment has been asked for from the District Magistrate by the Government for delay for the period from 15.11.2010 to 07.12.2010 by letter, dated 25.03.2011. However, no 9 explanation has been filed till the date of hearing about the delay for the period from 15.11.2010 to 07.12.2010 and, further, no explanation is for the period when the explanation of the District Magistrate was received in the Department from 07.12.2010 to 16.12.2010, i.e., for period of about nine days. 15. However, Article 22(5) of the Constitution of India provides a constitutional safeguard to communicate the order giving earliest opportunity to file a representation and it has interpreted that the earliest opportunity filing of the representation includes that the representation be considered and disposed off immediately. It has been considered and held in several cases, including the decision reported in A.I.R. 1999 S.C., 684 (supra) that the delay of five days in disposing off representation without valid explanation is fatal for order of detention and order of detention becomes invalid as soon as reasonable time expired for disposal of representation. 16. The learned counsel for the State, however, relying upon decision reported in (2006) 5 S.C.C., 142 (supra) and submitted that there was delay of 10 119 days, which has been condoned and held to be not fatal. However, under the facts and circumstances of that case the representation was made in Tamil and it was submitted by the Union of India that it took about 90 days to get proper translation of the representation and as soon as the translation was received the authority took the urgent step and it was disposed off within short period. However, in the facts and circumstances of this case, there is no explanation at all for the period from 15.11.2010 to 07.12.2010 and, further, there is no explanation at all for the period from 07.12.2010 to 16.12.2010. Hence, the delay in disposal of the representation is fatal for the order of detention. 17. The learned counsel for the State, however, relied upon decision reported in (2004) 13 S.C.C., 668 (supra) where it has been held that some small delay can well be held to have been properly explained, if it is satisfied that there has been due consideration of the representation. 18. However, taking the effect of this judgment it can well be inferred that the consideration by the Department from 16.12.2010 to 24.12.2010 the 11 authorities concerned were considering the matter in Department and that can be considered as the period from 16.12.2010 to 24.12.2010 have been explained as it was under consideration before Government and, hence, though the period from 09.11.2010 to 15.11.2010 and period from 06.12.2010 to 24.12.2010 may be deemed to have been explained, but, there is no explanation for the period from 15.11.2010 to 07.12.2010 and from 07.12.2010 to 16.12.2010 and, hence, it is apparent that the constitutional safeguards provided under Article 22(5) of the Constitution of India has been violated and there is violation of Article 22(5) of the Constitution of India and, hence, in that view of the matter, the order of detention passed by the District Magistrate, Arwal, having been confirmed by the State Government is not sustainable as violative of Article 22(5) of the Constitution of India and, hence, the impugned order is set aside and the writ petition is allowed. S.A. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J.)