IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.178 of 2011 SHARWAN YADAV @ SHARWAN KUMAR RAI SON OF SURESH RAI, R/O KOTHWAN, P.S.- KHAGAUL, DISTRICT- PATNA Versus 1. THE STATE OF BIHAR 2. PARWEJ KHAN, UNDER SECRETARY OF HOME (POLICE) 3. DISTRICT MAGISTRATE, PATNA 4. THE SENIOR SUPERINTENDENT OF POLICE, PATNA 5. THE SUB-DIVISIONAL POLICE OFFICER, DANAPUR (PATNA). ----------- For the petitioner :-Mr. Shakeel Ahmad Khan, Sr. Advocate Mr. Ghanshyam Tiwary, Advocate For the State :-AC to G.A.-6. -------------- 6 26/04/2011 This criminal writ application has been filed for setting aside the order of detention dated 25.11.2010 Vide Order No. 7 /CCA.10112/10 Grih AA. 9590 (Annexure-3) passed under Section 12 (2) of the Bihar Crime Control Act by the respondent no.2 which has been affirmed by the State Government under Section 21 (1) and 22 of the Bihar Crime Control Act. The petitioner was in jail in connection with Bihta P.S. Case No. 280 of 2009 dated 24.10.2009 and the order of detention (Annexure-1) was passed by the District Magistrate, Patna on the ground that in view of the allegations levelled in Bihta P.S. Case No. 280 of 2009, Danapur P.S. Case No. 200 of 2003 dated 1.5.2003 and release of the petitioner is 2 prejudicial to the State which affects the public order and tranquility of the society. Hence, this petitioner is required to be detained. The order of detention has been passed on 6.10.2010 and a copy of the order was served on the petitioner on 7.10.2010 and the same was affirmed on 25.11.2010 after recommendation of the Advisory Board. However, the petitioner, after receipt of the order of detention, filed representation and according to the petitioner, he filed representation on 25.10.2010. However, the State in its counter affidavit filed on behalf of respondent nos. 2 and 3, has asserted that the representation of the petitioner was received on 28.10.2010 and it was considered by the District Magistrate, Patna and he has sent the representation with his comment to the Home (Police) Department, Govt. of Bihar on 6.11.2010 which was received in the Home Department on 8.11.2010. In the mean time, meeting of the Advisory Board was held on 4.11.2010 and after receipt of the recommendation of the Advisory Board on 9.11.2010, the State Government affirmed the order of detention under Section 21 (1) and 22 of the Crime Control Act. Thereafter, the representation of the petitioner was considered by the District Magistrate as well as it 3 was examined at various level, such as, by the Under Secretary, the Joint Secretary and the Home Secretary and it was thereafter, approved by the Chief Minister on 3.12.2010 who was pleased to reject the representation of the petitioner and it was communicated to the petitioner by the Home Department vide memo no. 9908 dated 8.12.2001. Mr. Shakeel Ahmad Khan, learned Senior Counsel for the petitioner, however, contended that the allegations levelled against the petitioner do not affect public order and the petitioner filed his representation on 25.10.2010 and there is delay in disposal of the representation which is violative of Section 17 and Article 22 (v) of the Constitution of India and Constitutional safeguards provided under the Constitution for early disposal of the representation has been violated, which goes to the root of the order of detention and the same must be quashed on this ground alone. Learned counsel for the State, however, submitted that the allegation levelled against the petitioner is very serious and it affects the public order and further submitted that the representation of the petitioner was considered and delay has been explained because the representation was considered 4 at various level and so the delay has properly been explained. Hence, on the respective submissions of the parties, the point for consideration is that as to whether the order of detention is sustainable in the eyes of law or not? However, the two points which have been raised on behalf of the petitioner is that allegations made whether affects the public order. So far as the allegations is concerned that 9 accused persons came on three motorcycles and at the pond near Mahavir Asthan shot at Chunnu. However, after some argument learned counsel for the petitioner did not press his first point. However, on the second point which is about the delay, it has been submitted that the order of detention was passed on 6.10.2010 and the same was served on the petitioner on 7.10.2010. The petitioner filed his representation on 25.10.2010 whereas the order of detention was approved on 16.10.2010 and the Advisory Board recommended on 4.11.2010 and the order of detention was affirmed on 25.11.2010 but the representation of the petitioner was not considered and ultimately it was rejected and order of detention was notified on 8.12.2010 as mentioned in the counter affidavit filed by the State. 5 Hence, there is delay of more than 40 days in disposal of the representation of the petitioner. Section 17 of the Bihar Crime Control Act and Article 22 (v) of the Constitution of the India however, provides that the constitutional safeguard to consider the representation of the petitioner and in various decisions the Apex Court held that the consideration of the representation should be made as soon as the representation of the petitioner has been filed. Learned Counsel for the petitioner however, relied upon the decisions reported in AIR 1999 SC 686 where it has been held that the delay of 5 days in considering the representation is fatal to the order of detention. Learned Counsel for the petitioner further relied upon the decision reported in 1981 SC Page 1077 in which it has been held that any delay in disposal of the representation goes to the root of the order of detention and detention order can be set aside on this ground itself. The learned Counsel further relied upon the decision reported in 2009 (3) PLJR Page 77 in which the delay of 12 days in considering the representation is fatal and goes to the root of the detention order. However, in the facts and circumstances of the 6 present case, the delay of more than 40 days has been shown and no explanation whatever has been made except that the matter was considered at various level. However, what consideration was made has not at all been mentioned to explain the delay. Hence, we find and hold that the State has not properly explained the delay in considering the representation of the petitioner for more than 40 days. Hence, the delay in disposal of the representation of the petitioner goes to the root of the order of detention. Accordingly, this petition is allowed and the order of detention contained at Annexure-3 is set aside. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) avin