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1991 DIGILAW 368 (PAT)

Nageshwar Mahto v. State Of Bihar

1991-09-12

NUNUMANI PRASAD SINGH

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Judgment NURUMANI PRASAD SINGH, J. 1. In this Criminal Writ application, the petitioner has challenged his detention under Section 12 (2) of the Bihar Contrial of Crimes Act, 1981 (hereinafter referred to as the Act) and has prayed for quashing the orders as contained an Annexures 1 to 4. 2. On 29-11-1990, while the petitioner was in Central Jail, Ranchi, order for his detention under Section 12 (2) of the Act was passed by the District Magistrate, Ranchi, vide Annexure 1 on a report submitted by the Sr. Superintendent of Police, Ranchi. 3. The ground, for the detention of the petitioner as contained in Annexure 2, was that the petitioner was an accused under Sections 384, 386 of the Indian Penal Code in Tantisilwai P.S. Case Nos. 180/89, 2 of 90 and 171 of 1990 aind was responsible for kidnapping of the people for ransom in the industrial area of Tantisilwai. The anti-social activities of the petitioner had disturbed the public peace and order in the area. The release of the petitioner from the jail was therefore, considered to be prejudicial to the maintainance of public order. 4. The detention of the petitioner was approved by the State Government on 10-12-1990 vide Annexure 3 and the same was confirmed by the State Government on 8-3-1991 under Section 21 (1) and 22 of the Act till 30-11-1991 vide Annexure 4. 5. Short point involved in this ease is whether confirmation of the order of detention of the petitioner as contained in Annexure 4, after the expiry of three months from the date of his detention is legal, valid and violative of Article 22 (4) of the Constitution of India. 6. Shri P. S. Dayal, learned counsel for the petitioner has contended that the detention of a detenu has to be confirmed by the State Government within ninty days from the date a person is detained under Article 22 (4) of the Constitution of India. Any subsequent action by the Sate Government after the three months cannot have the effect of extending the period of detention. The detention would become illegal after three months period is elapsed without such confirmation. Reliance was placed in the case of D. S. Roy V/s. State of West Bengal, AIR 1972 SC 1924 . 7. Any subsequent action by the Sate Government after the three months cannot have the effect of extending the period of detention. The detention would become illegal after three months period is elapsed without such confirmation. Reliance was placed in the case of D. S. Roy V/s. State of West Bengal, AIR 1972 SC 1924 . 7. It may be relevant to refer the Clause 4 of Article 22 of the Constitution of India, which runs as follows : 22 (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause (7), or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clause (a) and (b) of Clause (7) 8. It is thus obvious that the confirmation of opinion of the Advisory Board to continue the detention beyond the three months, must be within three months from the date of detention. 9. Shri R. K. Mahto, learned G. P. II, on the other hand, has contended that the matter was placed before the Advisory Committee before expiry of three weeks from the date of detention as provided under Section 19 of the Act and the Advisory Board had recommended the detention of the petitioner on 3-1-1991 before the expiry of three months from the date of detention of the petitioner and (sic) detention order of petitioner is legal and valid. The contention of learned G. P. II does not appear to be sound. 10. The contention of learned G. P. II does not appear to be sound. 10. In the case of D. S. Roy (supra) the Supreme Court has held that it was essential that the appropriate State Government should take positive action on the report of Advisory Board which action alone would determine whether the detention was to be terminated or continued, that it would, therefore, prima facie appear that the action should be taken immediately after the receipt of the opinion of the Board or at any rate within three months from the date a person is detained. Failure to confirm and extend the period within three months would result in the detention becoming illegal, the moment the three months period elapsed without such confirmation. 11. In the present case, the detention of the petitioner was confirmed by the State Government on 8-3-1991 after the expiry of three months from the order of detention of the petitioner, dated 29-11-1990. Therefore, order of the confirmation of the detention of the petitioner by the State Government after the expiry of three months cannot have the effect of extending the period of detention. The detention of the petitioner is, thus, illegal and violative of Clause (4) of Article 22 of the Constitution of India. 12. For the reasons mentioned aforesaid, the order of detention of the petitioner is set aside and in the result this writ application is allowed. The petitioner is directed to be released forthwith, if not wanted in any other case. Writ allowed.