IN THE HIGH COURT OF JUDICATURE AT PATNA CR.W.J.C. No.243 of 2011 PAPPU MANDAL, S/O SITARAM MANDAL, R/O VILLAGE NAKI, P.S. HAVELY KHARAGPUR, DISTRICT MUNGER .. PETITIONER Versus 1. THE STATE OF BIHAR 2. DISTRICT MAGISTRATE, MUNGER 3. JAIL SUPERINTENDENT, MANDAL KARA, MUNGER .. RESPONDENT **** /6/ 20 May 2011 This writ petition is for issuing a writ in the nature of habeas corpus for releasing the petitioner from illegal detention, after quashing the Adesh Sankhya 1167, dated 25.09.2010, passed by the District Magistrate, Munger, under Section 12(2) of the Bihar Control of Crimes Act (hereinafter referred to as, ‘the Act’), which has been confirmed by the order of the State Government, dated 07.12.2010. 2. The case of the petitioner is that when he was in jail in connection with Kharagpur P.S. Case No. 181 of 2009, dated 01.10.2009, for offence under Section 302 and other allied sections of the Penal Code, he was ordered to be detained under Section 12(2) of the Act by order, dated 25.09.2010. The order of detention was approved on 05.10.2010. However, the order of approval 2 was communicated to the petitioner on 05.10.2010 and then the petitioner came to know about the order of detention passed under Section 12(2) of the Act, hence, the petitioner filed a petition on 11.10.2010 that neither order of detention nor the concerned papers, on which the order of detention based, has been served to enable him to file any representation. Further, the order of detention was confirmed by the State Government on 07.12.2010. A counter affidavit has been filed by the State stating therein that the order of detention was passed on 25.09.2010, which as approved by the State Government on 05.10.2010 and order of detention was confirmed on 07.12.2010 after approval of the Advisory Committee. It has been accepted that the copy of the order of detention was served on the petitioner on 11.10.2010. The learned counsel for the petitioner filed the reply to the counter affidavit asserting that since the order of detention, dated 25.09.2010 was not served till the order of detention got approved and served on 05.10.2010, hence, he filed objection on 11.10.2010 stating that order of detention has not been served upon him along with the documents and so he is unable to file any representation 3 then the copy of order of detention served on 11.10.2010 so the objection, dated 11.10.2010, is not the representation, but, an objection and intention that copy of the order of detention was not served upon him. However, the order of detention based on two cases, one for offence under Section 302 of the Penal Code bearing Kharagpur P.S. Case No. 181 of 2009 in which there is allegation that Pappu Mandal, petitioner, along with his other associates came in Lochhi Bazar and fired on Sanjay Mandal before hundres of people and fled away, after crime, causing stampede in the market and said Sanjay Mandal died and the next case for offence under Section 307 and allied sections of the Penal Code bearing Kharagpur P.S. Case No. 245 of 2009 in which there was murder by cutting neck and taking away the head and, thereafter, it is alleged that Pappu Mandal attacked the house of Ramesh Choudhary where occurrence has taken place and fired several rounds in and around the house putting the inmates under fear so that they may not depose. It has been asserted that pressures were being exerted so that the witnesses may not depose against Pappu Mandal and his associates. Hence, the order of detention has been 4 passed on these basis that the act of the petitioner is an act prejudicial to maintenance of public order. The learned counsel for the petitioner, however, challenged the detention order on the ground that two cases on the basis of which the order of detention has been passed are not question of public order, but, relates to law and order. It has, further, been contended that the detaining authority did not consider that what prejudicial act of the petitioner in jail caused to consider to pass the order of detention. The learned counsel for the petitioner submits that there is violation of Section 17 read with Section 12(3) of the Act as order of detention was not served on the petitioner after sixteen days and not within 5 to 10 days of the passing of order of detention, dated 25.09.2010, as the order was served on 11.10.2010. The learned counsel for the State opposed that the grounds make out a case of detention and, further, the effect regarding the petitioner is not in jail and his coming out of the jail will adversely affect the society has been considered and though the order of detention was passed on 25.09.2010 was served on 11.10.2010, the petitioner 5 was in jail in connection with other case and may not be in detention by virtue of order of detention. However, taking into the respective submission, the question for consideration whether the order of detention suffers from the irregularity or illegality pointed out that allegations are not concern with public order, the authority did not consider the act by petitioner during jail was in any manner prejudicial to public order and whether non-compliance of Section 17 read with Section 13(3) of the Act is fatal. However, the first point is that the order of detention passed not come within the ambit of public order. However, taking into consideration the allegation made in the two cases referred as the basis for consideration for passing the order of detention, it is apparent that the occurrence took place in Locchi Bazar in front of several people whereas it is alleged that one of the employees of Navy was shot dead and the accused persons fled away firing having adverse effect and the allegation made may be a law and order problem, but, the impact of the said occurrence in effect has extended to the public order as the intensity of the allegation have it’s effect to 6 disturb even the tempo of the society and the public at large having been terrified and this single instance is sufficient to disturb even tempo of life. However, the fact of second case that the accused persons came and fired several rounds terrorizing the people of the locality not to depose against Pappu Mandal and by such act the people were not ready to depose or give statement apparently shows that the allegation made have disturbed even tempo of life and the public at large are fearful, hence, allegation made itself has it’s effect that it effected the public order, hence, there is no merit in the submission that the allegation made and the grounds are the case of law and order and not public order. However, it is pertinent to mention that it is substantive satisfaction of the detaining authority to infer or being satisfied and this Court can not examine objective, however, the material mentioned in the grounds it can well be inferred that the satisfaction of the authorities are based on reasonable grounds and the Court can not be look into objective under the facts and circumstances to doubt the subjective satisfaction of the authority concerned. The learned counsel for the petitioner relied 7 upon the decision reported in 2010 (2) P.L.J.R. 86 (Vikash Kumar @ Mithu Paswan Vrs. The State of Bihar) and it has been contended that two substantive cases relied upon by the authority for passing the order of detention and, hence, the detaining authority will not be justified in treating the petitioner as threat to public order and it has, further, been contended that no material to indicate that while in jail custody the petitioner involved in criminal activity. However, the facts and circumstances of the case relied upon is not applicable as out of two cases only one was treated to be a threat to public order. Here under the facts and circumstances both cases relied upon concern with the public order and the effect on society, as mentioned above, are sufficient to attract public order and, further, the authority, concerned, also take into consideration the petitioner in jail and his coming out of the jail under the facts and circumstances are prejudicial to public order. The second point rose that Pappu Mandal was in jail and there was not consideration that he was doing anything which could have lead to passing the detention 8 order while he was in custody. However, taking into consideration the ground an order of detention passed. There are sufficient materials to suggest the satisfaction of the District Magistrate that if he is allowed to remain at large he will indulge in activity prejudicial to maintenance of public order and, further, the pressures are exerted on the witnesses not to depose, hence, the authority has considered that the coming out of the petitioner from jail will prejudicial to the public order, hence, here is no merit. However, the third point that the order of detention under Section 12(2) of the Act was passed on 25.09.2010 by the District Magistrate, Patna, but, the said was not served on the petitioner till 11.10.2010 whereas the said order was approved on 05.10.2010 by the State Government. However, having regard to the fact that the order of detention was passed on 25.09.2010 having not been served to the petitioner to file representation to the Government is violation of Section 17 read with Section 12(3) of the Act as well as denial of his right to file representation, hence, violation of constitutional safeguards provided under Article 22(5) of the Constitution of India. The proviso to Section 12(3) read 9 with Section 17 of the Act provides that the order of detention of a person, detained, be communicated to detenue within five days from the date of detention and in exceptional circumstance for reason to be recorded in writing not latter than ten days from the date of detention for affording him earliest opportunity to make representation against the State Government. Here the petitioner is in custody and order of detention passed on 25.09.2010, but the order of detention served on 11.10.2010, after sixteen days is clear violation of Section 17 of the Act and proviso to Section 12(3) of the Act denying him the earliest opportunity to file representation and, hence, there is violation of constitutional safeguards of earliest opportunity to file representation enshrined under Article 22(5) of the Constitution of India. Hence, the impugned order can not sustain and is hereby set aside on this ground, which is hereby quashed. The writ petition is allowed. S.A. (Shyam Kishore Sharma, J.) ( Gopal Prasad, J.)