IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.437 of 2009 Tesam Mian, son of Modan Mian, resident of Village-Thuthi, P.S. Chautham, District- Khagaria ------ Petitioner. Versus 1. The State of Bihar through Home Secretary Government of Bihar, Patna. 2. The District Magistrate, Khagaria. 3. The Superintendent of Police Khagaria. 4. The Jail Superintendent of Khagaria ------------- Respondents. ----------- 5. 25.7.2009 Heard Mr. Md. Khurshid Alam for the petitioner, and Mr. Ritesh Kumar, learned Assistant Counsel to Additional Advocate General No.1. The petitioner challenges the detention order dated 17.12.2008 (Annexures 1 and 2), passed under the provisions of Section 12 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the ‘Act’), and the orders as contained in Annexures 3 & 6 passed by the State Government confirming the detention order. The respondents have placed on record their counter affidavits and have supported the impugned action. 2. We have perused the materials on record and considered the submissions of learned counsel for the parties. Learned counsel for the parties have made elaborate submissions and have cited decisions in support thereof. We do not wish to examine the rival contentions in view of the position that the writ petition can be disposed of on a very short ground. It appears that the basis of the impugned order of detention is that he is a notorious criminal of his area and is accused in a number of criminal cases. He is likely to be released on bail and if so released, will adversely affect the public order of the area. It appears to us that he is in custody since12.8.2007, 2 without any break, in substantive case(s) under the Indian Penal Code. Such a situation renders the order of detention infructuous by passage of time. We, therefore, set side the order of detention. The issue whether or not an order of preventive detention can be passed in anticipation of release of an accused from jail where he is in custody in a substantive case does not arise for consideration and, therefore, we do not express our opinion on this question. 3. It goes without saying that it will be open to the respondents to pass a fresh order in accordance with the provisions of the Act, if occasion so arises. 4.The writ petition is accordingly allowed. The impugned order is set aside. Vinay/ ( S. K. Katriar ,J. ) ( Jyoti Saran, J.)