IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.803 of 2010 SHANKAR VERMA, S/O LALA BHAGAT, RESIDENT OF TRENING SCHOOL LAW COLLEGE, RANIGHAT, P.S. SULTANJ, PATNA. ……. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. COMMISSIONER HOME (POLICE) DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. DEPUTY SECRETARY, HOME (POLICE) GOVT. OF BIHAR, PATNA. 4. DISTRICT MAGISTRATE, PATNA. 5. SENIOR SUPERINTENDENT OF POLICE, PATNA. ……… RESPONDENTS. FOR THE PETITIONER : - MR. BINDHYACHAL SINGH, ADV MR. MANOJ KUMAR, ADV FOR THE STATE : - MR. MANIKANT MISHRA, GP 21 MR. KINKAR KUMAR, AC TO GP 21. ----------- 04/ 24.09.2010 Heard counsel for the petitioner and the counsel appearing for the State. This application has been filed by the petitioner for quashing of the detention order dated 29.5.2010 issued by the District Magistrate, Patna vide letter no. 1596 and also for quashing the order dated 7.6.2010 contained in letter no. 7/CCA 1034/2010 H (P) 4738, whereby the detention order dated 29.5.2010 has been affirmed by the Deputy Secretary (Home), Govt. of Bihar, Patna. A Joint counter affidavit has been filed on behalf of District Magistrate, Patna and the Senior Superintendent of Police, Patna. Another counter affidavit has been filed on behalf of State representing Respondents 1 to 3. 2 The order of detention issued by the District Magistrate, Patna (Annexure-1) dated 29.5.2010 was served on the petitioner at Beur Jail, Patna on 30.5.2010. In the detention order dated 29.5.2010, three grounds were mentioned for issuance of order of detention against the petitioner under Section 12(2) of the Bihar Control of Crimes Act. Three police cases, which were taken as a ground for detention are:- Sultanganj P.S. Case No. 53 of 2009 instituted under Sections 302/34, 120B of the IPC and 27 of the Arms Act in which the petitioner is named as one of the accused, Pirbahore P.S. Case No. 65 of 2009 under Section 302/34 of the IPC and 27 of the Arms Act, which was instituted against 4-5 unknown accused persons and Kadamkuan P.S. Case No. 112 of 2009 instituted for offence under Section 395/397 of the IPC. This case was also instituted against 7 unknown accused persons. The petitioner on receiving the detention order submitted his representation on 18.6.2010 before the District Magistrate, Patna and the representation of the petitioner remained pending for consideration and disposal till 13.7.2010. After a lapse of 36 days the representation of the petitioner was rejected vide order dated 13.7.2010 by four 3 lines order, without disclosing any reason for not accepting the grounds taken by the petitioner, in his representation. The rejection order was served to petitioner on 27.7.2010. Thereafter the matter was placed before the Advisory Board on 1.7.2010 and the Advisory Board approved the detention order observing that sufficient ground exists for detention. Finally vide order dated 7.6.2010, the detention order was affirmed for a period of one year starting from 29.5.2010 to 29.5.2011. The impugned orders have been challenged by the petitioner on grounds of; (i) non-application of mind (ii) rejection of show cause by non-speaking, blanket order (iii) unexplained delay in disposal of representation. The first ground is that there is totally non- application of mind, while passing the order under Section 12(2) of the Bihar Control Crimes Act by Respondent No. 4, which is visible, considering the grounds taken for issuance of the detention order. Out of three cases, petitioner has been acquitted in Pirbahore P.S. Case No. 65 of 2009. In other 4 two cases, i.e. Sultanganj P.S. Case No. 53 of 2009 and Kadamkuan P.S. Case No. 112 of 2009 he has been granted bail. The detention order dated 29.5.2010 does not indicate that detaining authority had any knowledge of these facts simply on recommendation of S.S.P., Patna without his own satisfaction passed the detention order. While petitioner was about to be released on furnishing bail bond the detention order was issued just to obviate the release of the petitioner. In fact there was no ground for detention. On perusal of the detention order (Annexure-1) it is obvious that either the District Magistrate, Patna had no knowledge about the acquittal of the petitioner in Pirbahore P.S. Case No. 65 of 2009 and granting of bail in connection with Sultanganj P.S. Case No. 53 of 2009 and Kadamkuan P.S. Case No. 112 of 23009, or despite having knowledge it was concealed. Since the impugned order do not indicate the actual position relating to the cases, taken as ground for detention, not known to the detaining authority, it cannot be presumed that after proper application of mind, the detention order was passed by the District Magistrate, Patna. Second ground been taken by the petitioner for quashing of the impugned orders, relates to the unexplained 5 delay in considering the representation of the petitioner. The representation filed by the petitioner was disposed of after 36 days of its filing. It means that there was a delay of almost 25 days. The counter affidavit filed on behalf of the District Magistrate, Patna is quite vague in explaining the delay. Simply the dates have been mentioned on which authorities considered the representation filed by the petitioner, but no reason has been assigned for such delay. It is a constitutional requirement, that within the time specified, any representation filed by the detenue must be considered and disposed of by the detaining authority. This cautious approach has been taken in the Constitution, considering the fact that liberty of a citizen cannot be taken away by authority without complying with the legal and statutory requirement. Since it has completely been given a goby by the respondents, obviously the detention order is fit to be quashed. Counsel for the petitioner in support of this submission has placed reliance on decisions reported in A.I.R. 1982 S.C. 1257 and 2008 (IV) P.L.J.R. 286. Counsel for the petitioner in support of this 6 contention regarding the delay in considering the representation filed by the petitioner, without explaining the reason has placed reliance on decisions reported in 2009 (III) P.L.J.R. 77 and also 2008 (IV) P.L.J.R. 553, specially on para 10 of this decision, where it has been held as follows:- “It needs no elaboration that by an order of preventive detention, liberty of a person, is jeopardized without any proof of guilt rather on suspicion and subjective satisfaction of the detaining authority. The representation against the detention, in the backdrop of the constitutional provision contained in Article 22(5) attains high importance and has to be considered expeditiously. Any delay in consideration of the representation, without sufficient explanation thereof, may render the detention order bad in law.” Counter affidavit filed on behalf of the respondents is fully silent on all these points and a general and vague assertion has been made, which is not convincing, rather a general assertion has been made in serious matter, like detention in which liberty of a citizen is involved, could 7 have been taken by the authorities, which cannot be encouraged in any way. Accordingly, the impugned orders are quashed. This application is allowed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)