IN THE HIGH COURT OF JUDICATURE AT PATNA CR WJC No 754 of 2011 Abhishek Kumar Sharma @ Nepali, son of Bipin Sharma, resident of At/Mohalla – Kewani, P S – Garkha, District – Siwan - Petitioner Versus 1 The State of Bihar through the Chief Secretary, Government of Bihar, Patna 2 Secretary, Home (Police) Department, Government of Bihar, Patna 3 District Magistrate, Saran, Chapra 4 Superintendent of Police, Saran, Chapra - Respondents ----------- 9 20.10.2011 The petitioner, by this writ petition, challenges his preventive detention under the provisions of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Act). It is not in dispute that petitioner was in custody and is an accused in a large number of criminal cases nearing about 20. It appears while in custody and apprehending that he may be released on bail, the District Magistrate –cum- Collector issued a show cause to the petitioner on 03.02.2011 as to why he should not be preventively detained under the Act. Petitioner replied and having considered the reply of the petitioner, the District Magistrate –cum- Collector, Chapra, by his order dated 04.04.2011, directed that the petitioner be detained in preventive custody for a period of 12 months from the date of detention and he would be detained in Divisional Jail, Chapra. A copy of the detention order with the ground was then served upon the petitioner on the same day in Chapra Jail. Petitioner filed a representation to the State Government as against his detention on 10th of April, 2011. On 13th of April 2011, the State Government approved the detention order as passed by the Collector, Chapra. The representation of the petitioner reached the Home Department at Patna through the Jail Superintendent and the 2 Collector on 18th of April, 2011. The petitioner’s representation was ultimately rejected by the State Government which order being order dated 25.05.2011 is contained in Annexure-7. Upon the aforesaid facts, learned counsel for the petitioner submits that petitioner having made a representation on the 10th of April, 2011 against his preventive detention, its rejection was communicated to him on the 25th of May, 2011. The delay in considering and rejecting his representation is inordinate and, thus, the detention is vitiated. We asked for detailed counter affidavit from the State, the Collector, the Superintendent of Police both with regard to the delay in dealing with petitioner’s representation as well as the number of cases in which petitioner was implicated and the status thereof especially with regard to bail. Several counter affidavits have been filed. Statement from the Jail Superintendent, Chapra Jail has also been received. It appears petitioner is accused in about 22 criminal cases but he has been granted bail in all of them by now. Learned counsel for the petitioner submits that in the list of 22 cases, there are several cases which are duplication. The list also includes the present case. He submits that this would show the mala fide attitude on part of the respondents. We do not propose to go into this question as petitioner has been released in all those cases which fact is not in dispute any more. Coming to the counter affidavits of the respondents with 3 regard to the delay in consideration of petitioner’s representation against his preventive detention and the disposal thereof, the counter affidavit admits that the petitioner was detained pursuant to order dated 04.04.2011 issued by the Collector –cum- District Magistrate, Chapra who, upon being order issued, apart from getting it served on the same day in the jail, sent a copy thereof to the State Government for its approval. The State Government approved the same on 13.04.2011. It is not in dispute that on 10th April 2011, petitioner made a representation to the State Government against his preventive detention. In the counter affidavit, it is stated that the representation was received on 18th April, 2011 by the State Government in the Department of Home. It is not in dispute that it is on the 10th of April 2011 itself, the Jail Superintendent forwarded the representation to the State Government in the Department of Home. What took the representation 8 days to reach from Chapra to Patna is not explained. Then we may note that on 16th April 2011, the petitioner was produced before the Advisory Board at Patna which approved his detention. On 26th April 2011, State Government, in the Department of Home, sent a communication to the Collector –cum- District Magistrate, Chapra, who was the detaining authority, to give his comments upon the show cause as filed by the petitioner. There appeared to be no response from the District Magistrate –cum- Collector, Chapra in time and, as such, on the 06th of May 2011, the State Government, in the Department of Home, sent a reminder. It is on 09th of May, 2011 that the District 4 Magistrate –cum- Collector, Chapra sent his comments to the State Government upon the representation, as filed by the petitioner against his preventive detention. From records of the Home Department, it appears that considering the comments of the District Magistrate –cum- Collector and considering that the detention was approved by the State Government and the Advisory Board, the representation of the petitioner was ordered to be rejected on 12th of May, 2011 by the State Government. The formal order of rejection, though was then issued under Memo No 3759 dated 25.05.2011 (Annexure-7) by the State Government for communication to the petitioner. If we look at the facts, as noted above, we would find that at every stage, State has lacked the urgency in the matter to deal with petitioner’s representation. It appears that the State was unmindful of its obligation. By an order of preventive detention, a person is deprived of his fundamental rights and his liberties. Courts have insisted that in such an event, where a person is deprived of his fundamental rights, the authorities have to consider the matter with all urgency. If we look to the facts, we would find that petitioner had filed his representation on 10th of April, 2011 and was communicated its rejection on 25th of May, 2011. Learned counsel for the State points out that his representation was ordered to be rejected on the 12th of May, 2011. The question again would be what happened in between 12th of May, 2011 and 25th of May, 2011. The file only moved from one table to another. That is what 5 happened in the very beginning that first it took 8 days the representation to travel from Chapra to Patna. It then took from 18th April, 2011 to 12th May, 2011 for the State Government to take a decision in the matter. The only explanation is that comment from the District Magistrate was sought for and District Magistrate did not respond timely. I am afraid that is a lame excuse when we are dealing with the citizen’s rights under the Constitution. This inordinate delay at every stage is inexcusable, whatever the justification of preventive detention may be. The constitutional rights being taken away, the State was under obligation to consider and act expeditiously. That being so, we are unable to uphold the detention any longer. It is, accordingly, held that pursuant to the inordinate delay in consideration of the petitioner’s representation, the petitioner’s preventive detention becomes unsustainable. We, accordingly, hold and direct so. Let the petitioner be released forthwith, if not required in any other case. The writ petition is, accordingly, allowed. M.E.H./ (Navaniti Prasad Singh) (Ashwani Kumar Singh)