1 1 IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.157 of 2011 RITLAL YADAV SON OF RAMASHISH YADAV RESIDENT OF VILLAGE KOTHAWA,P.S.KHAGAUL,DISTRICT PATNA AT PRESENT IN SPECIAL CENTRAL JAIL,BHAGALPUR-- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE UNDER SECRETARY, HOME (POLICE) DEPARTMENT. 2. THE DISTRICT MAGISTRATE, PATNA 3. THE SENIOR SUPERINTENDENT OF POLICE, PATNA 4. THE SUB-DIVISIONAL POLICE OFFICER, DANAPUR 5. THE OFFICER-IN-CHARGE, KHAGAUL ----- RESPONDENTS ----------- For the petitioner : M/s.Shakeel Ahmad Khan,Sr.Advocate Arun, Sanjay Kumar @ S.K. Dhananjay Kr.upadhyay,Advocates For the State : Mr. Shashi Dhar Jha, AC.to GA I ------ 05/ 25.04.2011 Heard learned counsel for the parties. This writ petition has been filed for issuing a writ of habeas corpus for releasing the petitioner after quashing the order of detention dated 27.10.2010 passed by respondent no.2 under Section 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as “the Act”) which has been confirmed under Sections 21(1) and 22 of the Act by respondent no.1. Learned counsel for the petitioner submits that the order of detention of the petitioner which is annexure-1 suffers from illegality on the ground that the order of detention was passed when the petitioner was 2 2 in jail and without taking into consideration that the act of the petitioner does not fall within the public order for the security of the State. As the petitioner was in custody in criminal cases, there was no occasion to initiate a parallel proceeding under Section 12(2) of the Act. Learned counsel has further submitted that the order of detention was passed on 27.10.2010 and the representation of the petitioner was filed on 15.11.2010 whereas the representation of the petitioner was rejected after much delay on 6.1.2011 and it was communicated to the petitioner on 10.1.2011. The representation of the petitioner was considered after much delay which goes to the root of the order of detention and hence the order of detention suffers from illegality in view of constitutional safeguards provided under Article 22(5) of the Constitution of India. Learned counsel for the State has, however, submitted that the allegations and the conduct of the petitioner make out grounds for detention because the same will disturb the public order in society at large 3 3 and will affect the tranquility. Learned counsel for the State conceded the fact about the petitioner being in jail but found that materials available against the petitioner show that if the petitioner comes out from jail, his presence will affect the public order. Learned Counsel for the State has further contended that the delay in disposal of representation has been explained in the counter affidavit. So the order of detention requires no interference by this Court. Perused the counter affidavit filed by the State itself. The admitted position is that the order of detention against the petitioner was passed on 27.10.2010 and the said order was confirmed on 29.12.2010. The said order of detention was served upon the petitioner who filed a representation on 15.11.2010 and subsequently the representation of the petitioner received in the Home Department on 24.11.2010. The representation of the petitioner was placed before the Advisory Board on 9.12.2010 and the opinion of the Advisory Board was 4 4 received on 10.12.2010 and thereafter, as per opinion of the Advisory Board, the file was placed before the Hon’ble Chief Minister for confirmation of the detention order on 14.12.2010. After approval, the file returned on 27.12.2010 and thereafter the order of detention was confirmed on 29.12.2010. The representation of the petitioner was placed and it was rejected on 6.01.2011 and the same was communicated to the petitioner on 10.01.2011. The order of detention under Section 12(2) of the Act was passed on two grounds: firstly that nine persons came on motorcycles and shot at Chuchun alias Sanjay Sharma who is alleged to be a witness in a case against the petitioner and he was witness in another case also against the petitioner and in the order of detention it is mentioned that there is some statements that the petitioner will teach lesson when he will come out from the jail. It is true that there is no bar in passing the detention order if the person concerned is in custody provided there is 5 5 material that after coming out from the jail, his presence is likelihood to affect the public order and tranquility. However, from the detention order as well as from the affidavit filed on behalf of the State it appears that the State has taken into consideration the fact that the petitioner was in jail and if he comes out the jail, his presence is likelihood to affect the public order. However, it is the subjective satisfaction of the State and this court cannot look into that if the reasonings suggest that there was material for subjective satisfaction of the State and the State has considered the fact that he is in jail and his coming out from jail will affect the public order and tranquility. Hence we do not find any material to quash the impugned orders on this ground. So far as the second ground is concerned, admittedly, the order of detention was passed on 27.10.2010 and the same was communicated to the petitioner on 2.11.2010 and thereafter the petitioner filed representation on 15.11.2010. However, 6 6 section 17 of the Bihar Control of Crimes Act read with Article 22(5) of Constitution of India provides right for filing of representation and right to file representation has been incorporated in various decisions of this Court as well as the Supreme Court and the representation is required to be considered and disposed of as soon as possible and any delay in disposal of the representation go to the root of the detention order which violates the fundamental right of the petitioner. In this connection, learned counsel for the petitioner has relied upon the decision of the Supreme Court in the case of Rajammal.Vrs.The State Tamil Nadu and another reported in A.I.R.1999 S.C. 684 wherein the delay of 5 days in disposal of the representation has been held to be fatal and as such the delay in disposal of the representation of the petitioner in this case goes to the root of the order of detention passed by the detenu authority and its confirmation. Hence the detention order suffers from illegality in view of the 7 7 constitutional safeguard provided under Article 22(5) and Section 17 of the Act. Learned counsel for the petitioner has further relied upon a decision of the apex court in the case of Smt.Khatoon Begum ETC.Vrs.Union of India and others ETC. reported in A.I.R. 1981 S.C. 1077 which also laid down that any delay in disposal of the representation was held to be fatal and as such the delay in disposal of the representation goes to the root of detention order and is in violation of fundamental rights. The representation of the petitioner was filed on 15.11.2010 and the same was rejected on 6.1.2011 i.e. after one month and twenty two days and there is no satisfactory explanation of delay. Hence the delay in disposal of representation of the petitioner itself goes to the root of the order of detention and its confirmation. Hence the order of detention dated 27.10.2010 against the petitioner under Section 12(2) of the Act is found against the law and is quashed. Consequently, the 8 8 order of confirmation of detention order dated 29.12.2010 also stands quashed. This writ petition is allowed. Tahir/- ( Shyam Kishore Sharma, J. ) ( Gopal Prasad, J.) 9 9 10 10 11 11