IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C. No.985 of 2008 VIKASH KUMAR @ MITHU PASWAN, SON OF NIRANJAN PASWAN, RESIDENT OF VILLAGE RAM NAGAR, P.S. JAKKANPUR,DISTRICT PATNA …………………. PETITIONER Versus 1. THE STATE OF BIHAR 2. THE HOME SECRETARY(P),GOVERNMENT OF BIHAR, PATNA 3. THE DISTRICT MAGISTRATE, PATNA 4. THE SENIOR SUPERINTENDENT OF POLICE, PATNA 5. THE SUPERINTENDENT OF ADARSH CENTRAL JAIL, BEUR, PATNA ……………………………….RESPONDENTS ---------- For the Petitioner: M/s Chankradhari Sharan Singh, Sumant Singh & Shantanu Kumar,Advocates For the State : Mr. Roy Shivaji Nath, Addl. A. G. No.4 *** 7. 06.02.2009 Heard learned counsel for the petitioner and learned counsel for the State. This writ petition seeks a writ of habeas corpus for release of the petitioner from preventive detention by declaring the detention order passed by the District Magistrate, Patna dated 9.7.2008 to be in violation of the provisions of the Bihar Control of Crimes Act (hereinafter referred to as “the Act”) and Article 22 (5) of the Constitution of India. The detention order has been passed - 2 - under Section 12 (2) of the Act and is contained in Amnnexure-1. It shows that two substantive cases – (i) Kankarbagh P.S. Case No.14/07 dated 3.4.2007 under Sections 147, 149, 302 and 120B of the Indian Penal Code and Section 27 of the Arms Act and (ii) Kankarbagh P.S. Case No.33/07 dated 18.4.2007 under Sections 399, 402 and 414 of the I.P.C. and Sections 25(1-B), 26 and 35 of the Arms Act have been taken as grounds for passing the preventive detention order against the petitioner. On behalf of the petitioner it was first submitted that in his representation dated 12.8.2008 contained in Annexure-4, the petitioner had raised a grievance that the documents of some criminal cases shown under the heading “criminal antecedent of the petitioner” were not supplied to him and this has prejudiced him in making an effective representation. Admittedly, documents relating to both the criminal cases which have been shown as grounds for detention were supplied to the petitioner. Although the petitioner had made grievance that those documents were not - 3 - legible, we do not find that the petitioner has been prejudiced on that account. Even in view of the judgment of the Apex Court in the case of J. Abdul Hakeem Versus State of Tamil Nadu and others [(2005) 7 Supreme Court Cases 70] upon which reliance was placed by the learned counsel for the petitioner, only copies of the documents relied upon by the detaining authority on the grounds are necessary to be supplied. The background of materials stated in the order of detention may refer to the facts but all the documents in relation to such background facts are not necessary to be supplied. The Apex Court has consistently held that the detenu has right to receive the documents which were taken into consideration by the detaining authority while affirming the grounds of detention. In the detention order, the grounds of detention are clearly dealt with separately and so, only two substantive criminal cases are the grounds of detention. Inter alia, it was further submitted on behalf of the petitioner that satisfaction of the detaining authority, as required by Section 12 of the Act, must be based upon the materials - 4 - which have been shown as grounds of detention and such materials must show that the detenu is an anti-social element whose activities, unless prevented by immediate arrest, will be prejudicial to the maintenance of public order. It was highlighted that public order cannot be equated with law and order and thereafter it was submitted that so far as ground no.(ii) is concerned, it discloses that allegedly, some fire arms and stolen articles were recovered from several persons including the petitioner but there was no act committed by the accused in this case which can lead to an apprehension of breach of public order at their hands. Similar submission was advanced also with regard to the case mentioned as ground no. (i). On looking into the nature of the case mentioned in ground no. (i), it is found that the occurrence took place on a public place in daylight wherein the deceased was shot by fire arms by several persons including the petitioner, as alleged in the first information report. Hence, it is not possible to hold that the case mentioned as ground no. (i) cannot be treated as threat to maintenance of public - 5 - order. However, his submission with regard to the case mentioned as ground no. (ii) appears to be justified. In that case, there is no such other activities which may lead to an inference that the accused persons are threat to maintenance of public order. That case is an ordinary case which can only be treated as a breach of law and order. We find ourselves in agreement with the submission that only on the basis of one sustentative offence led as ground no. (i), the detaining authority will not be justified in treating the petitioner as threat to public order. The aforesaid order acquires greater force in the light of the fact that the petitioner was in jail custody since 18.4.2007 i.e. for the last 15 months prior to passing of the impugned order of detention. There is no material to indicate that while in jail custody petitioner was involved in criminal activities. In view of the aforesaid discussions and finding, the impugned order of detention dated 9.7.2008 passed against the petitioner under Section 12 (2) of the Act is found to be against law and is quashed. Other orders dated - 6 - 18.7.2008 and 26.8.2008 whereby the detention order has been approved and confirmed, will also stand quashed. As a result, the petitioner is directed to be set free forthwith unless required to be detained in any other cases. B.T. (Shiva Kirti Singh, J.) (J.N.Singh, J.) *