IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.567 of 2008 SUNIL KUMAR SAHNI @ SHOLE Versus STATE OF BIHAR & ORS ----------- For the petitioner: Mr.Sunil Kumar Mr. Ranjit Kumar For the respondent nos.1 to 5 : Dr. Md. Rashid Haque,GA - V Mr. Binay Kumar, JC P R E S E N T Hon'ble the Chief Justice And Hon'ble Mr. Justice Dr. Ravi Ranjan --- Dated, the 11th August, 2008 Sunil Kumar Sahni alias Shole has approached this court for quashing the order dated 15th September, 2007 passed by the District Magistrate, Vaishali, whereby he has been detained under Section 12(2) of the Bihar Control of Crimes Act, 1981 ( for short, „the Act, 1981‟). He has also prayed for quashing the order contained in memo dated 24th September, 2007, whereby the State government has approved the order of detention and the petitioner has been ordered to be detained until 14.9.2008 2. Two fold contention has been advanced by the counsel for the petitioner before us, namely; (one) that although the petitioner made a representation under Section 17 of the Act, 1981 to the State government on 23rd September, 2007, the said representation was not considered within reasonable time and rather it has been rejected after 2 inordinate delay of almost 37 days by an order dated 27th October,2007. He placed reliance upon the decision of the Division Bench of this court in the case of Fakruddin Ali Ahmad alias Fakru v. The State of Bihar & Ors., 2000(2) PLJR 166, and (two) that Section 19 of the Act, 1981 mandates representation by the detenu to be placed before the Advisory Board and although such representation was made by the petitioner on 23rd September, 2007, it was never placed for consideration before the Advisory Board. Reliance in this regard is placed upon a decision of this court in the case of Raj Kumar Gupta vs. The State of Bihar & Ors., 1990 (2) PLJR 639. 3. The Bihar Control of Crimes Act, 1981 (for short, „Act, 1981‟) makes special provisions for the control and suppression of anti-social elements with a view to maintenance of public order. 4. Sub-section (1) of Section 12 empowers the State government and sub-section (2) of Section 12 empowers the District Magistrate to make an order detaining certain persons within the local limits of his jurisdiction. Section 12 reads thus: “12. Power to make order detaining certain persons:- (1) the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social elements can not be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained. (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may by an order in 3 writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in sub-section (1) exercise the powers conferred upon by the said sub-section: Provided that the period specified in an order made by the State Government under this sub –section shall not , in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (3) When any order is made by District Magistrate, he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as , in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. Provided that where under section 17 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words “twelve days” , the words “fifteen days” shall be substituted.” 5. Section 17 obligates grounds of order of detention to be disclosed to the person affected by such order. It reads thus: “17. Grounds of order of detention to be disclosed to person affected by the order.- (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the State Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.” 6. Section 19 lays down the procedure to be followed for 4 reference of the case of the detenu to the Advisory Board. It reads thus: “19. Reference to Advisory Board:- Save as otherwise expressly provided in this act, in every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 18, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by the District Magistrate mentioned in sub-section (2) of section 12 also the report by such officer under sub-section (3) of that section.” 7. The period of three weeks to be reckoned is from the date of actual detention and not from the date of the order. It further provides that any representation made by the detenu must be entertained and placed before the Advisory Board. 8. That the order of detention under Section 12(2) of the Act, 1981 came to be passed by the District Magistrate, Vaishali is not in dispute. In the counter affidavit filed by the respondents, it is stated that the petitioner is implicated in many cases of serious nature and has virtually unleashed a reign of terror: He is allegedly an anti-social element as well as habitual offender. It is stated that the impact of his terror is so intense that nobody dares to depose against him or identify him. As the petitioner was likely to be released from jail disturbing the public peace and order, it necessitated the District Magistrate to detain him with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. 9. It is stated in the counter affidavit that the 5 representation has been disposed of on 27th October, 2007. Although, at one place it is stated that the petitioner has nowhere stated in the entire writ petition as to on which date the representation was made by him, immediately thereafter it is admitted in the counter affidavit that the petitioner filed his representation against the detention order on 23rd September, 2007 through the Superintendent of Jail, Hajipur. The said representation was received in the Department of Home on 8th October, 2007. After having received the representation on 8th October, 2007 the District Magistrate, Vaishali was asked to furnish his comments and when comments were not received immediately thereafter, a reminder was sent to the District Magistrate, Vaishali on 12th October, 2007. The District Magistrate responded on 12th October, 2007 that no representation has been received by him. Then, a copy of the representation was sent to the District Magistrate, Vaishali on 15th October, 2007. The comments were received from the District Magistrate on 24th October, 2007 and on that very day, the representation was examined by the Joint Secretary and Home Secretary and thereafter on 27th October, 2007, it was examined by the Home Minister and the representation was rejected on that date, which has been communicated to the petitioner on 31st October, 2007. 10. 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 6 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. It has been repeatedly held that delay in consideration of representation against detention vitiates the order of detention. The consideration of representation against the detention has to be dealt with keeping urgency of the matter in mind and if the authority sits over such representation, it may affect the very legality of the order of detention. The law in this regard is so settled that it does not require reference to decisions in this regard. However, since the counsel for the petitioner has relied upon a decision of this court in the case of Fakruddin Ali Ahmad alias Fakru, we deem it proper to refer to the said decision. The Division Bench of this Court in that case particularly in paragraphs 5, 6 & 7, with regard to the delay in consideration of the representation against the order of detention made under Section 12(2) of the Act, 1981, observed thus: “5. After having heard the learned counsel for the parties, we are of the view that this application can be allowed on the second point for the reason stated hereinafter and as such it is not necessary to dwell upon the first point urged on behalf of the petitioner. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authorities are to communicate such person, the ground on which the order has been made and afford him opportunity for making a 7 representation against the order at the earliest. The said constitutional mandate has been incorporated in Section 17 of the Act which provides that the authorities have to afford an opportunity of making representation to the State Government at the earliest. 6. The order of preventive detention curtails the personal liberty guaranteed under the Constitution. The right of representation has been given with a view that the said representation is to be considered at the earliest so that in case it is found that the detention order is not in accordance with law, the detenu should be released forthwith. Inordinate delay or unexplained delay has been held to be violative of constitutional mandate under Article 22(5) and on this ground alone the order of detention will vitiate. The Apex Court in catena of cases has held that the representation has to be disposed of at the earliest and if there has been the delay in disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention and in that situation the continued detention becomes bad. Reference in this connection may be made to the decision of the Supreme Court in the case of Kundanbhai Dulabhai sheikh vs. District Magistrate, Ahmedabad and ors. (AIR 1996 S.C.2998). 7. In this case admittedly the representation was filed on 30th May, 99 and it is clearly and specifically stated in the writ petition that the representation was disposed of after long delay and no explanation has been stated for delay in disposal of representation. The said statement has not been denied in the counter affidavit and only vague statement has been made in paragraph 10 of the counter affidavit that the representation of the petitioner has been disposed of expeditiously and there is no lapse or undue delay in disposal of representation of the petitioner. There is no statement in the counter affidavit as to when the representation was dealt with after it was received by the authority concerned. No reason has been assigned as to the delay in disposal of representation. There is unexplained delay of about 37 days in disposal of the representation. If there would have been some explanation for delay in disposal of the representation in the counter affidavit, then this court would have gone into the matter to find out as to whether the delay explained is satisfactory or not. As stated above, there is no statement in the counter affidavit except vague assertion mentioned above. The delay of 37 days in disposal of the representation has not been explained as yet, the result is that 8 the constitutional mandate as contained in statutory provision as contained in Section 17 of the Act have been violated, as a result of which the detention order has to be declared invalid. On this ground alone the order of detention has to be quashed.” 11. In the light of the legal position exposited by this court in Fakruddin Ali Ahmad alias Fakru and the constitutional provision contained in Article 22(5) and Section 17 of the Act, 1981 as well as the counter affidavit by the respondents, we find that consideration of the representation made by the petitioner against his detention is inordinately delayed and the counter affidavit does not sufficiently explain the delay of 37 days. 12. That the representation against detention was received from the petitioner on 23rd September, 2007 is admitted in paragraph- 9(a) of the counter affidavit. Obviously, the petitioner could have made his representation against the detention only through the Superintendent of Jail, Hajipur. Why did he sit over the representation for seven days before sending it to the Home Department is not at all explained. If the representation sent by the Superintendent of Jail, Hajipur to the Home Department at Patna took eight days, obviously, blame must squarely lie upon authorities and the officers of the State. Hajipur is hardly 20 or 25 Kms away from the Secretariat at Patna. 13. The period from 8th October, 2007 to 12th October, 2007, was also lost because of not proper handling of the case by the Home Department. If at all, the comments of the District Magistrate, 9 Vaishali were required in respect of the representation made by the detenu, along with letter dated 8th October, 2007, copy of the representation ought to have been sent to the District Magistrate, Vaishali. But that was not done. On 15th October, 2007, the District Magistrate, vaishali responded that he had not received the representation and it was then that on 15th October, 2007, a copy of the representation was sent to the District Magistrate, Vaishali for his comments. As to why the District Magistrate took nine days in sending his comments is also not sufficiently explained. 14. All in all, there has been laxity at all stages in consideration of the representation made by the detenu which vitiates the order of detention dated 15th September, 2007. 15. In what we have discussed above with regard to the first contention of the counsel for the petitioner, as a matter of fact the consideration of the second contention raised by the counsel for the petitioner is not required. However, on this count also, we find that there is merit in the contention of the counsel for the petitioner that the representation dated 23rd September, 2007 made by the petitioner against the detention was never placed for consideration before the Advisory Board and, thus, there has been violation of Section 19 of the Act, 1981. 16. Resultantly, this writ petition deserves to be allowed and we order accordingly. The order dated 15th September, 2007 10 passed by the District Magistrate, Vaishali under Section 12(2) and the order dated 24th September, 2007 passed by the Deputy Secretary, Home Department, Government of Bihar, Patna are quashed and set aside. The petitioner be released forthwith, if he is not required in any other case. 17. The parties shall bear their own expensae litis. \ R. M. Lodha, CJ. Dr. Ravi Ranjan, J. Neyaz/