IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.428 of 2011 KABINDRA KOHAR, Son of Late Parikhan Kohar, R/O. Village – Basahi, P.S. – Rajpur, Distt, Buxar at present Bhabhua, Ward No. 1, P.S. – Bhabhua, Distt. – Kaimur (Bhabhua). ………………. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Home (Police) Department, Government of Bihar, Patna. 3. Under Secretary, Home (Police) Department, Government of Bihar, Patna. 4. The Collector, Kaimur. 5. Superintendent of Police, Kaimur. ……………… Respondents. ----------- For the Petitioner :- Mr. Mahesh Prasad, Advocate. For the State :- Mr. Harendra Prasad Singh, G.A.VIII. Mr. B. Rai, A.C. to G.A. VIII. Mr. Pankaj Kumar, A.C. to G.A. VIII. 05/ 20.05.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. This is a petition for issuance of a writ in the nature of habeas corpus for release of the petitioner from illegal detention after quashing the order dated 18.08.2010 by which he has confirmed the detention order under Section 12 (2) of the Bihar Control of Crimes Act, 1981 passed by the District Magistrate has been confirmed by the under Secretary to Government of Bihar, Patna under Section 12(2) of the said Act. The fact in narrow compass is that the order of detention was passed by the District Magistrate while the petitioner was in custody on 29.06.2010 and the said order of detention was served on petitioner and thereafter the petitioner filed a representation on 09.07.2010. However, the order of detention passed by the District 2 Magistrate was confirmed on 18.08.2010 and finally approved by the State Government on 04.08.2010 under the order of under Secretary dated 18.08.2010. However, the representation of the petitioner filed on 09.07.2010 was disposed of as by the State Government as per the order issued under the order of under Secretary dated 06.08.2010. The counter affidavit has been filed on behalf of the respondent nos. 1 to 3 and has stated that the order of detention was passed on 29.06.2010 and the representation was filed on 09.07.2010 and the representation was forwarded to the Home Department, Government of Bihar, Patna on 10.07.2010 by registered post. However, the District Magistrate, Bhabhua by letter dated 19.07.2010 sent his comment and opinion to the Principal Secretary, Department of Home (Police) Government of Bihar and further comment and opinion of the District Magistrate was received in the office of the Principal Secretary, Government of Bihar, Patna on 28.07.2010 and thereafter representation of the petitioner placed before the Advisory Board on 05.08.2010. The Advisory Board confirmed its opinion the order of detention and finally the order of detention was confirmed by the Government as per the order under the signature of the under Secretary dated 06.08.2010. Learned counsel for the petitioner, however, has challenged the order of detention specially on the ground that there is delay in disposal of the representation as the representation was 3 filed on 09.07.2010 and was disposed of under the order of under Secretary dated 06.08.2010. Though it has been asserted that the representation of the petitioner was rejected on 04.08.2010. However, from the counter affidavit filed by the State it is asserted that the representation was filed on 09.07.2010 and was sent by the Superintendent, Divisional Jail, Bhabhua to the Principal Secretary, Department of Home (Police) Government of Bihar, Patna. However, it has been stated that the District Magistrate, Bhabhua sent the details of the comment on 19.07.2010 but there is no explanation for delay from 10.07.2010 to 19.07.2010 and further it is stated that the report was sent along with the comment on 19.07.2010 which was received in the office on 28.07.2010 but there is no explanation regarding delay for sending the representation from 10.07.2010 to 19.07.2010 and further the delay from 19.07.2010 to 28.07.2010 has not been properly explained in the affidavit by the State. However, Article 22 (5) of the Constitution of India has provided the Constitution safeguard of having right of petitioner to file representation and it has been interpreted that the right to file representation concerns with the right of its expeditious disposal and any delay in the disposal of the representation is fatal and Hon’ble Apex Court as well as this Court as several decisions have interpreted the right of disposal of the representation should be considered as soon as it is filed and it has been interpreted that as soon as means it should be disposed of 4 immediately and any delay in disposal of the representation violates the Constitutional safeguards provided under Article 22(5) of the Constitution of India. Learned counsel for the petitioner, however, relied upon decision reported in PLJR 2007(3) 270 and various decisions of this Court as well as the Hon’ble Apex Court that any delay in disposal of representation shall be fatal as violative of Article 22(5) of the Constitution of India and even held delay of three days, five days or seven days are fatal as non-compliance of the Constitutional safeguard provided under Article 22(5) of the Constitution of India. Hence, having regard to the facts and circumstances of the case since delay of nine days as first instance and further delay of nine days as mentioned above from 10.07.2010 to 19.07.2010 and further from 19.07.2010 to 28.07.2010 has not been explained at all by the State and hence non-compliance of the Constitutional safeguard provided under Article 22(5) of the Constitution of India and hence the order of detention passed by the District Magistrate and its confirmation suffer from Constitutional safeguard provided to the petitioner and hence the impugned order is set aside and the writ petition is allowed. Kundan/ (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)