IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.429 of 2009 Daya Nand Yadav, S/O Shri Sachidanand Yadav, resident of Village- Mirzapur, Police Station-Sabour, District- Bhagalpur ----- Petitioner. Versus 1. The State of Bihar. 2. The Home Commissioner, Government of Bihar. 3. The District Magistrate, Bhagalpur. 4. The Senior Superintendent of Police, Bhagalpur 5. The Superintendent of Police, Bhagalpur. 6. The Jail Superintendent, Bhagalpur. ----------- Respodnents. ------------ 6. 31.7.2009 Heard Mr. Ram Suresh Roy for the petitioner, and Mr. Prabhat Kumar Singh, learned Standing Counsel No.21. Learned Standing Counsel submits that he has deposited Rs.10,000/- as per the order dated 14.7.2009, and the money receipt has been placed on record. This writ petition is directed against the order dated 25.4.2009 (Annexure-1), passed by the learned District Magistrate of Bhagalpur, under sub-section (2) of Section 12 of the Bihar Control of Crimes Act, 1981 (Bihar Act, 7 of 1981), read with Notification No.1761 dt 31.3.2009 of Home (Police), Department, Govt. of Bihar, Patna, and the consequential orders, whereby he has been preventively detained. The respondents have placed on record their counter affidavits and have supported the impugned action. A supplementary affidavit on behalf of the petitioner has thereafter been placed on record. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the parties have made elaborate submissions in support of their respective stand. We do not wish to examine the rival contentions in view of the position that the writ petition can be disposed of on a very 2 short ground. It appears on a perusal of the order of detention that the petitioner is in custody in substantive criminal case(s). It further states that the petitioner is making efforts for his release on bail in accordance with law in those case(s), and in the event of release on bail, he will be a grave threat to public order in the area. The petitioner has stated in his supplementary affidavit sworn on 31.7.2009 that he has not been enlarged on bail and continues to be in custody in a substantive case. We are of the view that an order of preventive detention in a situation where the petitioner continues to be in custody for his involvement in substantive cases under the provisions of the Indian Penal Code and/or any other penal enactment, renders the order of preventive detention infructuous because of lapse of time. In that view of the matter, the impugned order of detention and the consequential orders, are here by set aside. The issue whether or not an order of preventive detention can be passed in anticipation of release of an accused from jail where is he in custody in a substantive case does not arise for consideration and, therefore, we do not express our opinion on this question. It goes without saying that it will be open to the respondents to pass a fresh order in accordance with law, if the occasion arises. The writ petition is accordingly allowed. The impugned order and the consequential order are set aside. Vinay/ ( S. K. Katriar ,J. ) ( Jyoti Saran, J. )