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1996 DIGILAW 657 (PAT)

Vinay Kumar Singh v. State of Bihar

1996-09-30

B.P.SHARMA, B.P.SINGH

body1996
Order Counsel for the petitioner states that the order of detention was passed on the 10th of March, 1995 and approved by the Government on the 20th of March, 1995. It is further stated that the petitioner is a political worker and is also a Professor teaching in a college. The order of detention was never served upon him even though he was available and as stated in paragraphs 11 and 12 of the writ petition the order was passed with a view to keep the petitioner in check, so that he could not take part in political activities, and whenever the petitioner attempted to take part in political activities, he was threatened with such an order. It is only after this Court issued notice in this writ petition on 9.9.1996 that the authorities have taken steps under Sections 82 and 83, Cr.PC. on the 24th of September, 1996. He submits that in view of the law as laid down by this Court in Shambhu Nath Singh vs. State of Bihar ( 1989 PLJR 654 ) and in Bindeshwari Yadav vs. State of Bihar ( 1989 PLJR 374 ) following the Supreme Court decisions, as also a recent Supreme Court decision in Subhash Muljimal Gandhi vs. L. Himingliana and another [ 1994 (6) SCC 14 ], the subjective satisfaction of the detaining authority becomes suspect, inasmuch as in cases of such delay there could be no genuine satisfaction about any urgency in the matter arising from the belief that if at large the petitioner was likely to act in a manner prejudicial to public order. By order dated 9.9.1996 we had granted two weeks' time to the J.C. to A.A.G. to file a counter affidavit, as prayed for by him. The petitioner was also directed to file a reply within three days thereof and the matter was to be placed for hearing on the 30th of September, 1996. The said order made it clear that no adjournment shall be granted on any ground whatsoever. Even so, no counter affidavit has been filed, but a prayer is made to pass over this matter for the day, so that a counter affidavit may be prepared and sworn today and the same be filed tomorrow in Court. Prayer is allowed. The said order made it clear that no adjournment shall be granted on any ground whatsoever. Even so, no counter affidavit has been filed, but a prayer is made to pass over this matter for the day, so that a counter affidavit may be prepared and sworn today and the same be filed tomorrow in Court. Prayer is allowed. He will serve a copy of the said counter affidavit on the counsel for the petitioner in course of the day and file the counter affidavit in Court tomorrow, as prayed for. 2. Put up this matter tomorrow under the same heading as prayed for. Order dated 1.10.1996. 3. This order may be read in continuation of our order dated 30th September, 1996, wherein the facts have been stated. 4. A counter affidavit has been filed on behalf of respondent No. 2 affirmed by the District Magistrate, Saran. The counter affidavit details the several cases pending against the petitioner on the basis of which the detaining authority was satisfied that it was necessary to detain him with a view to preventing him from acting in a manner prejudicial to the maintenance of public order. Reference is made to the report of the Superintendent of Police dated 24.2.1995. It is also not disputed that the petitioner was a candidate in the General Election held in the year 1995 to elect member of the legislative assembly, and is a political worker belonging to a political party. It is stated in paragraph 13 of the counter affidavit that the office of he District Magistrate, Saran sent the detention order to the Superintendent of police, Saran under cover of letter No. 204 dated 10.3.1995 for service and execution thereof. The detention order was received in the office of the Superintendent of Police, Saran, on the same day i.e. on 10.3.1995. The detention order was then sent to the officer-Incharge, Digwara police Station for service and execution on 13.3.1995. Thereafter it appears nothing happened. The order was not served upon the petitioner nor was he arrested and this state of affairs continued till the ling of the instant petition before this court on 28.8.1996. This court called upon the respondents to file counter affidavit by order dated 9.9.1996. Thereafter it appears nothing happened. The order was not served upon the petitioner nor was he arrested and this state of affairs continued till the ling of the instant petition before this court on 28.8.1996. This court called upon the respondents to file counter affidavit by order dated 9.9.1996. From the counter affidavit, it appears that the respondents woke up from their slumber on 24.9.1996 and report was called for as to why the order had not been executed and it is alleged that the Officer-Incharge, Digwara Police Station failed to take legal action to serve detention order on the petitioner. Disciplinary proceeding has been initiated against the said police officer. 5. These facts are sufficient to dispose of the instant writ petition. It is not disputed that the detention order was passed on the 10th of March, 1995 and approved by the Government on the 20th March, 1995 under the provisions of the Bihar Control of Crimes Act. The order of detention was never served upon the petitioner and this order remained unexecuted and in fact unattended till the writ petition was filed before this Court and the respondents were called upon to file a counter affidavit. It is only in September, 1996 i.e. a year and six months later that the authorities have started taking some steps to execute the order. 6. Having regard to the law on the subject, to which we have referred in our order dated 30th September, 1996, in these circumstances, the order of detention must be quashed and it must be held that having regard to the indifference shown by the detaining authority and failure to execute the order for a year and six months the subjective satisfaction purported to have been reached by him that the detention of the petitioner was necessary with a view to preventing him from acting in a manner prejudicial to the public order becomes doubtful. In fact the facts show that that he did not genuinely believe that the detention of the petitioner was necessary because in that event he would have taken action to execute the order and detained the petitioner forthwith. Such long indifference in law vitiates the order of detention itself. The liberty of an individual is not a play thing in the hands of the executive. Such long indifference in law vitiates the order of detention itself. The liberty of an individual is not a play thing in the hands of the executive. Where preventive detention is justified by law, the power has to be exercised in rare cases where it becomes a compelling necessity, and the exercise of power has to be strictly in accordance with law. If the procedural safeguards or the constitutional safeguards are violated the court will not hesitate to quash such order of detention, because, but for the justification, it clearly infringes the fundamental rights of a citizen. 7. In these circumstances, this writ petition is allowed and the order of detention passed by the District Magistrate, Saran on the 10th of March, 1995 is hereby quashed.