Sakaldeo Singh v. State Of Bihar — 1987 DIGILAW 117 (PAT)

Judgment 1. The petitioner claims himself to be the General Secretary of the Bihar Janta Khan Mazdoor Sangh, the central office whereof is situated at Sijua, Police Station Jogta, District Dhanbad. Initially, this application was filed with a prayer for quashing an unknown order of preventive detention under the National Security Act (hereafter referred to as the Act) by the Government of Bihar and a prayer was also made therein that during the pendency of the application, the arrest of the petitioner should remain stayed. 2. This application was admitted by order dated 7th Jan., 1987, and was directed to be heard on 19th of Jan., 1987, as the first case subject to part-heard, if any, before an appropriate Bench. It appears that in the meantime the petitioner was arrested in pursuance of an order of detention passed by the District Magistrate, Dhanbad, which has been described as unknown order in the initial petition and the ground of detention was served on him. A supplementary affidavit was, thereafter, filed on behalf of the petitioner stating certain more facts with several annexures. By order dated 9th Feb., 1987, it was directed that the supplementary affidavit of the petitioner shall be taken into consideration along with the main case. But by order dated 19th March, 1987, it was observed that as this writ application had already been admitted, no useful purpose was to be served in directing the petitioner to file a writ application afresh challenging the same order of detention after his arrest. Accordingly, this application along with the supplementary affidavit was treated as an application for a writ of Habeas Corpus and the State was directed to file counter-affidavit on merit as well as on the question of delay in disposal of the representation filed on behalf of the petitioner. 3. The relevant facts are that the learned District Magistrate, Dhanbad, passed Order No. 1 dared 2nd Jan., 1986, in exercise of the powers conferred by sub-s. (2) of S.3 of the Act read with Notification No. 1796/C dated 15th Oct., 1985, of the Government of Bihar, directing that this petitioner be detained and be placed in Dhanbad jail. A copy of the order passed by the District Magistrate has been annexed as Annexure-7 and Annexure-11 is the copy of the ground for such detention. A copy of the order passed by the District Magistrate has been annexed as Annexure-7 and Annexure-11 is the copy of the ground for such detention. Annexure-11 discloses that in pursuance of S.8 of the Act, the petitioner was being informed that he had been ordered to be detained under the orders of the District Magistrate, Dhanbad, being No. 1 dated 2nd Jan., 1986, on the ground as mentioned in this annexure. Now, for all practical purposes, these two annexures, namely, Annexures-7 and 11 are sought to be quashed by the petitioner. Other facts are that the order of detention passed by the District Magistrate, Dhanbad, was approved by the State Government on 10th Jan., 1986, but since the petitioner could not be apprehended till 16th. Jan., 1987, when he was arrested, the detention order was served on him on that very date i.e. on 16th Jan., 1987. The ground of detention was served on the petitioner on 19th Jan., 1987. According to the petitioner, he made a representation to the State Government against his detention order by his application dated 27th. Jan., 1987, as contained in Annexures-12 and 12-A. The representation of the petitioner was received by the office of the Chief Secretary, Government of Bihar, on 30th Jan., 1987. The representation of the petitioner was ultimately disposed of by the State Government and the petitioner was communicated with the result of the representation on 4th March, 1987, that his representation had been rejected. In these circumstances, at this moment, the petitioner is under detention in pursuance of Annexure-7 passed by the District Magistrate, Dhanbad. 4. The learned counsel appearing for the petitioner has challenged the validity of the detention of the petitioner as well as the detention order passed by the District Magistrate, Dhanbad, as contained in Annexure-7 on several other grounds besides the ground that the detention of the petitioner even for a single moment is violative of Art.22, Cl. (5) of the Constitution of India since his representation could not be disposed of by the State Government expeditiously, to which a citizen, under the Constitution of this country, is entitled to have. (5) of the Constitution of India since his representation could not be disposed of by the State Government expeditiously, to which a citizen, under the Constitution of this country, is entitled to have. It is also urged on behalf of the petitioner that the incident which has been set forth in Annexure-11 as the ground for detention of the petitioner is the subject-matter of a criminal trial which is pending in the Court of a Judicial Magistrate at Dhanbad, being G.R. Case No. 3341 of 1985, for trial. The trial Court, after perusing the allegations made against the petitioner, has released him on furnishing bail bond of Rs. 2,000.00 with two sureties. Regarding this, the submissions of the petitioners counsel are twofold, first, that the incident itself which has been taken as a ground for detention under the Act is so insignificant that the trial Court, taking a very lenient view, has granted bail to the petitioner and on the basis of such occurrence, the petitioners liberty should not be curtailed by taking the aid of the Act, since he can be sufficiently punished by the Court of law for the act which he is alleged to have committed and which has been made a ground for the detention of the petitioner in the order of the District Magistrate, Dhanbad; and secondly, the incident took place as far back as on 29th Nov., 1985, and being an old incident, now it cannot be a valid ground for the detention of the petitioner and hence the ground of detention has become stale. 5. Now we propose to consider the submissions of the learned counsel appearing for the petitioner and the arguments advanced in reply by the learned Government Advocate appearing for the respondents, one by one. 5. Now we propose to consider the submissions of the learned counsel appearing for the petitioner and the arguments advanced in reply by the learned Government Advocate appearing for the respondents, one by one. So far as the quick and speedy disposal of the representation fled by the petitioner against the detention order passed against him by the District Magistrate of Dhanbad, which is under challenge in this application, is concerned, Cl.(5) of Art.22 of the Constitution of India envisages that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order; meaning thereby that an earliest opportunity should be afforded to the detenu to make his representation against his detention to the appropriate Government. But mere affording an earliest opportunity for making a representation does not carry any meaning unless the representation of the detenu is disposed of as quickly as possible. Therefore, in our view, in spirit, Cl. (5) of Art.22 of the Constitution of India read with the provisions as contained in the Act, quick disposal of the representation is an essential as affording of opportunity otherwise affording of opportunity will serve no purpose inasmuch as filing a representation cannot be considered to be a mere formality and Cl. (5) of Art.22 has to be interpreted in this light. We say so because from the scheme of the Act which deals with the preventive detention of a citizen of the country, it is evident that all the procedures connected with the detention of the detenu have to be undergone very quickly within the period as laid down in the Act itself. Section 8 of the Act lays down that the grounds on which the detention order has been made must be communicated within five days and in exceptional circumstances, for reasons to be recorded in writing, not later than ten days from the date of detention and it is also mandatory on the part of the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order to the appropriate Government. This part of sub-s. (1) of S.8 of the Act appears to have been borrowed from Cl. (5) of Art.22 of the Constitution of India, Section 9 of the Act relates to the constitution of the Advisory Board and S.10 deals with reference to the detention of a person when the Advisory Board is constituted and provides that in every case where a detention order has been made under the Act the appropriate Government shall within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted under S.9 the grounds on which the order has been made and the representation, if any, made by the person affected by the order. So S.10 also puts a limit on the time within which the grounds of detention and the representation of the detenu have to be placed before the Advisory Board. As laid down in S.11 of the Act, the Advisory Board has to submit its report to the appropriate Government within seven weeks of the date of detention of the person. So, under S.11 as well a time limit has been put by the Act. On the basis of these time limits, as laid down in the different sections of the Act referred to above, we have to conclude that the scheme of the Act is that the representation of the detenu, if any, should be disposed of as quickly as possible, i.e., without any unreasonable delay. 6. Affording of earliest opportunity to the detenu for making a representation against the order of detention as is envisaged in Cl. (5) of Art.22 of the Constitution and the time limits prescribed in certain sections of the Act have a purpose behind it that the detenu should not be detained even for a moment on invalid and unreasonable ground. The provision of affording opportunity of making representation, as contained in Cl. (5) of Art.22 of the Constitution and the time limits prescribed in certain sections of the Act have a purpose behind it that the detenu should not be detained even for a moment on invalid and unreasonable ground. The provision of affording opportunity of making representation, as contained in Cl. (5) of Art.22 of the Constitution of India and as incorporated in S.8 of the Act is with the purpose that supposing in a case the representation of the detenu is allowed by the Government and the Government disapproves the order of the authority who has passed the detention order, the detention of the detenu till his representation is considered and finally disposed of will be on invalid and unreasonable ground and then in that circumstance who will be accountable for the illegal detention of the detenu. Hence, mere affording of opportunity for filing a representation against the detention order by a detenu is not sufficient unless the representation is decided with earliest and utmost expedition, in order to avoid such a situation in which the liberty of a citizen of this country may not be put to jeopardy on unreasonable ground. 7. In the instant case the application of representation was made on behalf of the petitioner, as submitted on his behalf, on 27th Jan., 1987, after the ground of detention was served on him and, according to the counter-affidavit, filed on behalf of the State, the aforesaid representation of the petitioner was received in the office of the Chief Secretary on 30th Jan., 1987, and the same was, thereafter, sent to the Home (Special) Secretary which was received in his office on 31st Jan., 1987. A copy of the representation was sent to the District Magistrate, Dhanbad, by post for comments, by the Home (Special) Department of the State Government on 4th Feb., 1987, which was received in his office on 10th Feb., 1987, and on the same day the District Magistrate, Dhanbad, sent the representation to the Superintendent of Police, Dhanbad, for comments. The Superintendent of Police, Dhanbad, in his own turn, on 11th Feb., 1987, endorsed the representation of the petitioner to the concerned police officer for sending information after enquiry and he himself left Dhanbad for attending the meeting of the Advisory Board at Patna without sending his comments on the representation of the petitioner. The Superintendent of Police, Dhanbad, in his own turn, on 11th Feb., 1987, endorsed the representation of the petitioner to the concerned police officer for sending information after enquiry and he himself left Dhanbad for attending the meeting of the Advisory Board at Patna without sending his comments on the representation of the petitioner. As stated in the counter-affidavit filed on behalf of the State, the Superintendent of Police, Dhanbad, returned from Patna after attending the Advisory Board meeting on 14th February, 1987, and thereafter, on 17th Feb., 1987, the Superintendent of Police, Dhanbad, submitted his comments to the District Magistrate, Dhanbad. The comment of the Superintendent of Police was sent on the representation of the petitioner, which was received in the office of the District Magistrate, Dhanbad, on 19th Feb., 1987 and the District Magistrate forwarded his comments to the State Government on 22nd February, 1987. The comments of the District Magistrate, Dhanbad, was received by the Under Secretary on 23rd Feb., 1987 and the Under Secretary sent the file regarding the representation of the petitioner to the Special Secretary on 27th Feb., 1987. Thereafter, on 28th Feb., 1987, the file was sent to the Chief Minister and necessary orders were passed on the representation of the petitioner on 2nd March, 1987. According to the State -respondent the detenu was informed about the dismissal of the representation on 3rd March, 1987, but as a matter of fact the said communication regarding the result of his representation was received by him on 4th March, 1987. So, from the above dates we have to see whether the representation of the petitioner has been dealt with, with utmost expedition, in letter and spirit as envisaged in Art.22, Cl. (5) of the Constitution of India and the scheme of the Act. 8. From the facts mentioned above it would appear that the representation of the petitioner was treated just like a football, a kick from one place to another place. It is admitted by the learned counsel appearing for the State that the representation was received on 30th Jan., 1987, in the office of the Chief Secretary and it was sent to Home (Special) Department on 31st Jan., 1987. But it appears that the State Government did not treat this representation of the petitioner in the manner as it should have been. But it appears that the State Government did not treat this representation of the petitioner in the manner as it should have been. Copy of the representation was forwarded to the District Magistrate, Dhanbad, on 4th Feb., 1987, i.e. after four days and that also by post. Regarding this delay a lame excuse has been put forward on behalf of the State that there was strike of the Non-Gazetted employees of the State Government. But this excuse cannot be regarded as reasonable because during the period of strike all works of the State Government were going on and there were several gazetted officers who could have taken the representation of the petitioner to Dhanbad or a requisition could have been sent for a police constable since at that time the police force was not on strike and it was police force who were assisting in maintaining the normalcy of the work of the State Government. So it is evident that the delay caused from 31st Jan., 1987, when the representation was received in the office of the Home (Special) Secretary up to 10th Feb., 1987, the date on which a copy of the representation was received by the District Magistrate, Dhanbad, has not been explained at all. This delay could have been easily avoided if the concerned officer would have understood the importance of the liberty of the petitioner. The District Magistrate, Dhanbad, also appears to have treated the representation of the petitioner very lightly since we are of the view that it was not necessary for the District Magistrate to send the representation of the petitioner to the Superintendent of Police, Dhanbad, because it can be presumed that before passing the detention order the District Magistrate must have been conversant with all the activities and antecedents of the petitioner. Be that as it may, even if the District Magistrate thought it wise to send the representation to the Superintendent of Police, Dhanbad, for his comment, the explanation of delay given by the State Government at the hands of the Superintendent of Police appears to be not at all acceptable and the act of the Superintendent of Police, Dhanbad in this regard is obviously callous. If the Superintendent of Police, Dhanbad, would have understood the importance of the representation of the petitioner, he could have called the police officer concerned and sent his comments on the same day i.e. on the date on which he had received the copy of the representation of the petitioner from the office of the District Magistrate. Instead of sending his comments, the Superintendent of Police, after endorsing the representation of the petitioner to the police officer concerned, left Dhanbad and came to Patna and sent his comments as late as on 17th Feb, 1987. There does not appear any justification for the Superintendent of Police, Dhanbad, for making such a long delay in sending his comments to the District Magistrate on the representation of the petitioner. The most surprising thing is that although the Superintendent of Police, Dhanbad, submitted his comments to the District Magistrate, Dhanbad, on 17th Feb., 1987, but it was received in the office of the District Magistrate on 19th Feb., 1987, i.e. after two days when it is said that both the offices, namely, the office of the Superintendent of Police and the office of the District Magistrate are at a stone-throw distance. It is also surprising that the District Magistrate received the comments of the Superintendent of Police on 19th Feb., 1987, but he sent the same to the State Government on 22nd Feb., 1987. No explanation whatsoever has been given by the State in the counter-affidavit with respect to this delay made by the District Magistrate in sending his comments. 9. Thus, from the above circumstances it would be clear that making the delay in sending the comments on the representation of the petitioner by the District Magistrate can be taken to be only with a view to prolong the detention of the petitioner anyhow which is clearly violative of the constitutional guarantee available to every citizen of this country. It further appears, as stated earlier, that although the comment of the District Magistrate was received by the Under Secretary of the State Government on 23rd Feb., 1987, the Under Secretary sent the file to the Special Secretary on 27th Feb., 1987. This delay of four days is also unexplained. Thus, from the above circumstances, it would be clear that there has been clear infraction of Cl. (5) of Art.22 of the Constitution of India. This delay of four days is also unexplained. Thus, from the above circumstances, it would be clear that there has been clear infraction of Cl. (5) of Art.22 of the Constitution of India. In the case of Raj Kishore Prasad V/s. State of Bihar, AIR 1983 SC 320 : (1983 Cri LJ 629) their Lordships of the Supreme Court quashed the detention order on the ground that there was delay of 28 days. In the instant case also the circumstances are somewhat similar and there has been delay of more than a month in disposing of the representation of the petitioner. Thus, on the ground of delay alone the impugned order of detention (Annexure-7) as well as Annexure-11 which is the ground for detention are fit to be quashed. In somewhat similar circumstances, in a batch of writ petitions (Criminal), being Nos. 293, 391 and 392 of 1981, decided on 9th March, 1981 and reported in AIR 1981 SC 1077 : (1981 Cri LJ 606), their Lordships of the Supreme Court were of the view that the only explanation for the delay was administrative red-tapism and the detention of the detenus was held to be bad. 10. So far the next submission of the learned counsel appearing for the petitioner that a criminal trial with respect to the same incident which has been mentioned as the ground for detention of the petitioner is pending and the detention order should not have been passed making the same as the ground of detention is concerned, it is settled that pendency of criminal prosecution against the detenu cannot be a bar for his detention under the National Security Act; but in this case it appears that the incident took place as far back as on 29th Nov., 1985, and the petitioner has been arrested and taken into custody for the same incident on 16th Jan., 1987, i.e. after a long time. It appears that anyhow the detention order could not be served on the petitioner before 16th Jan., 1987, the date on which he was arrested, but since the date of the incident which has been made the ground for detention of the petitioner, till the date of his arrest, the conduct of the petitioner appears to be quite fair inasmuch as there has been no allegation during this period that the petitioner did any act prejudicial to the maintenance of public order. So, obviously the ground nor detention of the petitioner now in jail under the National Security Act has become stale. 11. In Para 6 of the counter-affidavit filed on behalf of respondents Nos. 2 and 3 as many as ten cases have been mentioned in which the petitioner is alleged to be involved as an accused and the learned Government Advocate has attached great significance to this matter at the time of argument. But we are unable to take into consideration the pendency of these cases against the petitioner since the activities of the petitioner (detenu) which are the subject-matters of those cases have not been considered as a ground for passing the detention order which has been impugned in this application. Of course, in the detention order (Annexure-7) one incident in the jail where the detenu is said to have misconducted himself with the Jail Superintendent has been mentioned by the District Magistrate, Dhanbad, as a background of the petitioner but this incident also, we are unable to take into consideration since background is different from the ground of detention. 12. Another aspect of the matter is as to whether on the facts and circumstances as mentioned in the ground on which the detention order (Annexure7) has been passed, the requirements as laid down under sub-s. (2) of S.3 of the Act have been fulfilled. From the facts narrated in the ground of detention it would appear that the activities of the petitioner were directed against a particular association and not against public in general. So it cannot be said that the acts of the petitioner which have been made the ground for his detention were in any manner prejudicial to the maintenance of public order. It is a different matter which concerns individual or a group of individuals and may amount to breach of law and order for which remedies are available under other laws but for exercising the power under sub-s. (2) of S.3 of the Act it is necessary that the acts of the person should be such which would involve public in general and not a particular group. So even if the ground for detention of the petitioner is tested on this touchstone, the order of detention, as contained in Annexure-7 cannot be said to be legally justified. 13. So even if the ground for detention of the petitioner is tested on this touchstone, the order of detention, as contained in Annexure-7 cannot be said to be legally justified. 13. On the aforesaid grounds and reasonings we are of the view that the detention of the petitioner is unjustified and illegal and, therefore, we quash Annexure-7 as well as Annexure 11. This application is, accordingly, allowed. The petitioner shall be set at liberty forthwith, if not wanted in some substantive case. It will, however, be open to the appropriate authority to take suitable preventive measures on fresh materials, if available in future, against the petitioner.