IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.156 of 2011 Ranjeet Yadav @ Kalia Yadav, son of Jai Narain Yadav, Resident of Daldali Road, Danapur, P.S. Danapur, District-Patna. ……….Petitioner. Versus 1. The State of Bihar. 2. Parwej Hassan, Under Secretary of Home Police Department, Government of Bihar. 3. District Magistrate, Patna. 4. Senior S.P., Patna. 5. D.S.P. Danapur (Patna). …………Respondents. For the petitioner: - Mr. Sanjay Kumar @ Manu, Advocate. Mr. Ghanshyam Tiwary, Advocate. For the State :- Mr. Pawan Kumar, A.C. to G.A. 5 ----------- 6. 27. 4. 2011. Heard learned counsel for the petitioner and the State. 1. This is a petition for issuing a writ in the nature of Habeas Corpus for release of the petitioner from illegal detention after quashing the order of the Home (Police) Department, Government of Bihar No. 7/CCA- 1039/2010 H.P.5692 dated 13. 07. 2010 issued by respondent no. 2 under Section 21(1) and 22 of Bihar Control of Crime Act confirming the order of detention bearing no. 1778 dated 15. 06. 2010 passed by the District Magistrate, Patna, under Section 12(2) of Bihar Crime Control Act. 2. The case of the petitioner is that the District 2 Magistrate, Patna, passed the order of detention on 15. 06. 2010 on the recommendation of the Superintendent of Police vide his letter no. 1017, dated 02. 06. 2010, on the ground that two cases are pending against the petitioner in Danapur P.S. No. 79/2009 alleging that petitioner with other accused entered into the house of the informant of the case, who is widow living with the daughters, the petitioner by entering into the house along with other outraged the modesty of her daughter and kidnapped her daughter who is still traceless. Further in Danapur P.S. Case No. 183/2009 that petitioner for releasing the prisoners hurled bomb and resorted to fire for releasing the prisoners while they were being taken to court in a jail van. It was also contended that petitioner in jail and is trying to be released on bail and his release on bail adversely affect the public order disturbing the life in the locality hence he be detained for a period of one year from the date of issuance of order. 3. The said order of detention passed by the District Magistrate was communicated to the petitioner through the Jail Superintendent of Adarsh Central Jail on 16. 06. 2010. The petitioner claims to send his 3 representation on 06. 07. 2010 through the Superintendent of Jail, Adarsh Central Jail, Beur. However, the representation of the petitioner was disposed of by the respondent no. 2 on 10. 09. 2010. 4. A counter affidavit has been filed on behalf of Respondent Nos. 2, 3 and 4 separately asserting that the order of detention was passed under Section 12(2) of Crime Control Act by the District Magistrate, Patna, on 15. 06. 2010. The said order was communicated to the petitioner on 16. 06. 2010. The order of detention passed under Section 12(2) of Crime Control Act was approved by the Government after recommendation of the Advisory Board on 25. 06. 2010. The representation of the petitioner was received in the office of the District Magistrate, Patna, on 05.08. 2010, through the Superintendent, Adarsh Kendriya Kara, Beur, Patna, vide letter No. 2853 dated 04. 08. 2010. After careful consideration of all aspect, the District Magistrate, Patna, sent his comment to the Government vide letter No. 2214, dated 19. 08. 2010. Thereafter, the comment of the District Magistrate on the representation of the petitioner was thoroughly examined by the State Government at 4 different levels and rejected finally by Hon'ble the Chief Minister on 09. 09. 2010. 5. Learned counsel for the petitioner has challenged the detention order on two grounds. First that the order of detention has been passed while the petitioner was in jail whereas the allegation does not warrant to make out a case of public order to pass an order of detention under Section 12(2) of Bihar Crime Control Act and further a parallel proceeding under Crime Control Act is not sustainable when criminal prosecution has already going on. The second ground is that there is delay in disposing of the representation. Reliance has been placed upon decision reported in A.I.R. 1981 SC 1077 as well as 2007 (2) PLJR 751 and 2007 (Supplementary) PLJR 281. 6. Learned counsel for the State submits that the allegation made make out a case of public order and the fact about the petitioner in jail was also considered and parallel proceeding under Crime Control Act is not barred during the trial. It has further been contended that delay was due to consideration of the representation of the petitioner at different levels and representation, though received in the office of the District Magistrate on 05. 08. 5 2010 through the Superintendent has been rejected by the Government on 09.09.2010 after consideration of the comment of the District Magistrate dated 19.08.2010. It has further been contended that representation of the petitioner was received on 05. 08. 2010 after the order of detention confirmed by the Government. 7. Having regard to the allegation and the grounds mentioned two cases have been referred as a ground for order of detention. In one of the case, the petitioner alleged to have kidnapped the daughter of the informant of that case and the daughter is still traceless. In another case, there is allegation of hurling bomb on the van carrying prisoners from jail to court to release the prisoners and hence the act alleged in the two cases itself are of nature disclose the gravity of offence which effect the public conscience and even temo of life to attract the public order and it challenged the security of the State. Moreover, it is subjective satisfaction of the authority concerned and it can not be objectively scrutinised unless grounds appear to be totally absurd. However, decision relied upon AIR 1974 S.C. 1161 is not applicable to the facts and circumstances of the case. 6 8. However, the second point raised by the petitioner regarding delay in disposal of the representation is worth consideration. Article 22(5) of the Constitution of India enjoins duty on the authority making the order of detention to afford the detenu earliest opportunity of making representation and it has been interpreted that right to file representation is fundamental right which is available to the detenu and interpreted that right of representation means that representation must be considered by the appropriate Government or authority passing the order of detention as soon as it is received as it affect the liberty of the citizen and delay in consideration of the representation by the Government is a ground for release of the petitioner, if the delay is not explain by the authority or if explanation of the delay is found to be unsatisfactory. 9. However, in this regard, it is relevant to quote 1981 SC page 1077; "6. The right of a detenu to have his representation considered " at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the 7 earlier opportunity are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 or the National Security Act or, for that matter any other parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breaths life into the Parliamentary or State law. Article 22 (5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the 8 procedures will contravene the constitutional mandate. It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable." 10. Further decision reported in 2007 (2) PLJR 751 relied upon by the petitioner held that the delay in disposal of the representation goes to root of the case and it vitiates the order of detention. It was held that a delay of seven days in disposal of representation is fatal to the order of detention holding that the representation of detenu must be disposed of with all promptitude and delay should be satisfactory explanation. If the delay in disposal of representation has not been satisfactorily explained then impugned order of detention is not sustainable. Reliance has been placed upon decision reported in A.I.R.1991 SC page 685 and 2002 (1) PLJR 419. Hence, it is well settled that under Article 22 (5) of the Constitution, the 9 Government is oblised to consider the representation as soon as it is received by its. 11. Hence now reverting back to the facts and circumstances of the case the petitioner's claim that representation was filed on 06. 07. 2010 before Jail Superintendent. However, Jail Superintendent has not been made a party and no counter affidavit has been filed on behalf of Jail Superintendent. 12. However, the District Magistrate in his counter affidavit has admitted that the said representation was received on 05.08. 2010 and after verifying the facts, he gave his comment on 19.08.2010 to the Home (Police) Department on 19.08. 2010 and thereafter, the representation was disposed of on 09.09.2010 by the Government. Only explanation for the delay is that it was considered at the different levels. However, representation of the petitioner was received by the District Magistrate on 05. 08. 2010 and said representation has been disposed of finally by the Government on 09. 09. 2010, more than a month. However, the explanation given by the respondents are neither satisfactory nor reasonable to be accepted and hence the delay in disposal of the representation has not 10 been satisfactory explanation and this goes to the root of the order of detention. The decision reported in 2007 (2) PLJR 751 the unexplain delay of seven days has been held to be fatal. Hence the representation filed by the petitioner has been disposed of with great delay of more than a month and explanation given by the authority is not satisfactory and hence, it goes to the root of the order detention and vitiates the order of detention. 13. However, the learned counsel for the State has submitted that the representation of the petitioner has been received on 05. 08. 2010, much after the order of detention has been confirmed by the Government. However, in view of the power to revoke or modify an order of detention conferred upon the Government, it would be the duty of the Government to consider the representation received from the detenu even subsequent to confirmation of order of detention. 14. Hence in view of discussions made above, since the respondents failed to explain satisfactory delay in disposal of the representation, the impugned order is not sustainable in law on the ground of unexplained delay in disposal of the representation and in the result order of 11 detention passed against the petitioner is hereby set aside and the petition is allowed. m.p. ( Shyam Kishore Sharma, J.) (Gopal Prasad, J.)