IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.546 of 2010 RAKESH SINGH @ RAKESH KUMAR SINGH Versus STATE OF BIHAR & ORS ----------- For the Petitioner:- Mr. Uma Shankar Verma, Advocate For the State:- Mr. Uday Bhanu Rai, G.A.IV 11 12 .10.2010 The prayer of the petitioner is for quashing of the detention order dated 5.12.2009 passed by the District Magistrate, Sitamarhi, whereby he has been detained for a period of one year. Further prayer is for quashing of the order contained in Memo No. 846 dated 1.2.2010 passed by the State Government confirming the order of detention under Section 21(2) of the Bihar Control of Crimes Act. The State Government has affirmed the detention order and directed that the petitioner will remain under detention till 5.10.2010. The order of detention has been challenged by the petitioner on the ground that in complete violation of provision under Sections 12(2) (1) & (3), Section 17, Section 21(2) of the Bihar Control of Crimes Act as well as Article 22(5) of the 2 Constitution of India, the impugned orders have been passed by the District Magistrate-cum- Collector, Sitamarhi as well as the State authority. The Deputy Superintendent of Police, Sitamarhi on 28.10.2009 has reported the Superintendent of Police, Sitamarhi giving reference of cases that petitioner should be detained under the provisions of Bihar Control of Crimes Act as he is a threat to public order. The Superintendent of Police, Sitamarhi simply forwarded it to the Collectorate, Sitamarhi on 8.11.2009 for passing an order of detention against the petitioner. The Collectorate, Sitamarhi also passed an order of detention on recommendation of the Superintendent of Police by order dated 4.12.2009 without properly applying his mind regarding propriety of order of detention under Section 12(2) (1) & (iii) of the Act. The order was passed under Section 12(2) of the Bihar Control of 3 Crimes Act and it indicated that petitioner has been detained for one year, which in itself was an illegality on the part of Respondent no.2. The detention order was served to the petitioner through the Jail authorities on 6.12.2009. The petitioner filed his representation on 12.12.2009, which was forwarded by the Jail Superintendent, Sitamarhi vide letter no. 1998 dated 12.12.2009 to the District Magistrate, Sitamarhi, on receipt of representation. The District Magistrate, Sitamarhi sought the opinion of the Superintendent of Police, Sitamarhi vide letter no. 948 dated 6.12.2009 and the Superintendent of Police, Sitamarhi submitted his opinion vide letter No. 3501 dated 22.12.2009. The District Magistrate, Sitamarhi agreeing with the opinion of the Superintendent of Police, Sitamarhi sent his recommendation to the Government vide letter No. 9776 dated 29.12.2009 along with the representation. The State Government rejected the 4 representation of the petitioner vide memo No. 394 dated 13.1.2010. What is most surprising, of this matter is that without considering the representation of the petitioner, the Collector, Sitamarhi has sent the order of detention to the State Government for its approval in complete violation of Section 17 of the Bihar Control of Crimes Act vide letter No. 914 dated 7.12.2009 for approval of the detention order passed under Section 12(3) of the Bihar Control of Crimes Act. This is the admission of the Collector, Sitamarhi in his counter affidavit that after passing an order of detention on 5.12.2009 immediately vide letter no. 914 dated 7.12.2009 he referred the matter to the State Government for its approval. The representation of the petitioner had not been received by the Collector till that date. The representation was received on 12.12.2009 and it was rejected not by the Collector but by the State 5 Government on 29.12.2009. Prior to that the detention order has already been referred to the Advisory Board and the approval of the Advisory Board was obtained on 16.12.2009. Subsequent to that on 29.12.2009, the District Magistrate, Sitamarhi forwarded the representation of the petitioner to the State Government. It was rejected on 13.1.2010. The copy of the rejection order was served to the petitioner on 10.2.2010. Prior to that the State Government has already confirmed the detention order of the petitioner vide order contained in Memo no. 846 dated 1.1.2010 in exercise of power conferred under Section 21(1) read with Section 22 of the Bihar Control of Crimes Act. The petitioner has challenged the impugned orders on the ground that in complete violation of provisions under Section 12(2) (1) (iii), Section 17, Section 21(2) of the Bihar Control of Crimes Act 6 as well as section 22(5) of the Constitution of India, the detention order has been passed. We find that it has been corroborated by the statement of the District Magistrate, Sitamarhi in the counter affidavit filed on his behalf. There is admission that representation of the petitioner was considered and rejected subsequent to the approval by the Deputy Secretary and its presentation before the Advisory Board. The order of rejection of petitioner’s representation was served on him on 10.2.2010, subsequent to the approval of detention order under Section 21(2) of the Bihar Control of Crimes Act on 1.2.2010. This is an apparent violation of the Constitutional provisions while passing an order of detention against a citizen of country. Without going into the facts and merits of the case, the impugned orders of detention dated 5.12.2009 passed by the District Magistrate, Sitamarhi and order dated 1.2.2010 passed by the 7 Under Secretary, Home (Police) Department, contained in letter no. 846 are quashed on the ground of being violative of provisions under the Bihar Control of Crimes Act as well as violative of the provision under the Constitution of India. The writ application stands allowed. Akumar ( Mridula Mishra, J.) (Dharnidhar Jha,J.)