IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1118 of 2010 PAPPU YADAV son of Sri Permeshwar Yadav, Resident of Village- Basudeopur, (Siswa) P.S. Gogri, District- Khagaria. ---------------Petitioner. Versus 1. THE STATE OF BIHAR through Secretary Home (Police) Department Government of Bihar, Patna. 2. The Joint Secretary, Department of Home (Police) Government of Bihar, Patna. 3. The District Magistrate, Khagaria. 4. The Superintendent of Police Khagaria. ----------------Respondents ----------------------- 4. 29.11.2010 Heard learned counsel for the petitioner and learned counsel for the State. The present petition has been filed by petitioner Pappu Yadav seeking quashing of the order No. 5/Legal dated 24.8.2010 contained in Annexure-1 passed by the District Magistrate, Khagaria under Section 12(2) of Bihar Control of Crimes Act, 1981, directing detention of the petitioner, who, is in judicial custody since 7.4.2010 and also the order passed by the State of Bihar dated 1.9.2010 bearing no. 7248 whereby the order contained in Annexure-1 passed by the District Magistrate, Khagaria was approved. The order passed by the District Magistrate, Khagaria did not disclose the ground for detention and the period for which the petitioner was being detained under Section 12(2) of the Bihar Control of Crimes Act, 1981. Learned counsel appearing for the petitioner 2 has submitted before this Court that petitioner had filed his representation on 9.9.2010 and the same was forwarded to the Joint Secretary, Department of Home (Police) Bihar, Patna by his Memo No. 1378 dated 9.9.2010 by the Superintendent of the District Jail Khagaria but in spite of many months having been passed, representation of the petitioner is still pending before the respondents for consideration and detention of the petitioner is continuing by virtue of the order passed by the District Magistrate, Khagaria. Further contention of the petitioner is that the District Magistrate, in his order contained in Memo No. 6/Legal dated 24.8.2010, has indicated three criminal cases as basis for passing the detention order, out of which one is the case registered under various sections of the Arms Act besides Section 212 of the Indian penal Code. It was contended that the case under the Arms Act could not be a ground for passing detention order. One of the cases at Serial no. 3 of the grounds is of the year 2007 and it was too remote to have any proximity for passing detention order in the year 2010. The third case at Serial No. 1 is completely a case connected with peace and tranquility for which there is Provision under Section 107 Cr. P.C. There was no material before the respondent No. 2 for prima facie making out a ground 3 that activities of the petitioner was such which is threat to public order. The order of the Respondent No. 2 itself speaks that petitioner’s activities are threat to public peace and tranquility. An order of detention could not have been passed for such ground. Second submission of petitioner’s counsel is that petitioner was produced before Advisory Board, beyond three weeks mandatory period, in violation of Provision under Section 19 of the Bihar Control of Crimes Act. There is no denial of this fact in the counter affidavit. Along with the counter affidavit the order of confirmation passed under Section 21(2) of the Act contained in Memo No. 8763 dated 25.10.2010 has been produced, but the counsel appearing for State is unable to answer the question regarding fate of pending representation of the petitioner, which was duly forwarded to the State Government under a proper letter by the Superintendent District Jail, Khagaria. We have been regularly pointing out that law itself creates a right in favour of the detenue to file his representation, presenting a case before the State Government, for not approving the detention order. The provision has been provided to safeguard the personal liberty of the detenue. It is also required that not only 4 the representation should be considered appropriately, but it must be without any loss of time and if any order of rejection is passed, same must contain reasons for rejecting the representation. Besides, it is a mandate of law that no confirmation order will be passed, unless the representation is duly considered, rejected by a reasoned order and served to the detenue, properly informing him. Admitted position is that the representation of the petitioner duly forwarded to the State Government on 9.9.2010 by the Superintendent District Jail, Khagaria had not been disposed off, till the date. The State Government, in the meantime confirmed the order of detention. The impugned order, confirming the initial order of detention passed by the District Magistrate is also silent on these points. The initial order of detention passed by the District Magistrate, Khagaria, indicates that petitioner’s liberty will create threat to public peace and tranquility and not to public order. The grounds for detention shown in the order dated 24.8.2010 contained in Memo No. 6/Legal indicated that criminal case taken as a ground could have been a concern only for public peace and tranquility and not as a threat to public order. The District Magistrate, Khagaria should have appreciated the difference between law and order and public order 5 and then only could have proceeded to pass the impugned order of detention, in accordance with law. In the result, we find the order of detention contained in Annexure-1 and the order of confirmation, annexed as Annexure-C to the counter affidavit, are fit to be quashed. The writ application is allowed and impugned orders are quashed. The petitioner shall be released from custody, forthwith, if he is not wanted in connection with any other matter. This application is allowed. Anand Kr. (Mridula Mishra, J.) (Dharnidhar Jha, J.)