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1999 DIGILAW 569 (PAT)

Fahim Khan v. State Of Bihar

1999-07-07

D.N.PRASAD, M.Y.EQBAL

body1999
Judgment M.Y.Eqbal and D.N.Prasad JJ. 1. In this writ application the petitioner has prayed for issuance of appropriate writ for quashing the order dated 3.6.1998 passed by the respondent No. 2, the District Magistrate, Dhanbad under Section 12(2) of the Bihar Control of Crime Act, 1981 (hereinafter referred to as the Act) and further for a direction commanding upon the respondents to immediately release the petitioner from custody. 2. The petitioners case is that while he was under custody in connection with Dhanbad PS Case No. 347/98 under Sections 302/34, IPC and Section 27 of the Arms Act, he was served with impugned order dated 3.6.1998 directing his detention under Section 12(2) of the said Act. The Petitioner was also served an order passed under Section 17 of the said Act directing him to make a representation to the Home Secretary, Government of Bihar as provided under the Act. The petitioner made a detailed representation against the order of detention explaining about the various cases instituted against him. However, the Deputy Secretary to the Government, Home (Police Department) by order dated 15.7.1998 confirmed and approved the detention of the petitioner till 6.6.1999 i.e. for more than 12 months as contemplated under Sections 21(1) and 22 of the said Act. 3. Mr. V. Shivnath, learned counsel appearing on behalf of the petitioner, assailed the impugned order passed by the respondent No. 2 and the order of approval passed by the Government as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the first order of detention was passed by the respondent No. 2 on 3.6.1998 and, therefore, the State Government was empowered to confirm the detention only for a period of 12 months. Learned counsel, therefore, submitted that the detention of the petitioner beyond 2.6.1999 is wholly illegal, mala fide and without jurisdiction. Learned counsel then submitted that the petitioner filed a detailed representation explaining each and every allegation made against him while passing the order of detention but the representation was not considered by the authority in accordance with law, and there appear total non- application of mind by the authority while confirming the order of detention. In this connection, learned counsel relied upon a decision of the Supreme Court in the case of Mohammad Sali V/s. State of Kerala, (1996) 2 Cr LJ 1225. In this connection, learned counsel relied upon a decision of the Supreme Court in the case of Mohammad Sali V/s. State of Kerala, (1996) 2 Cr LJ 1225. Learned counsel lastly submitted that before passing the order of detention the Magistrate was fully conscious of the position that the petitioner was in jail and was likely to be released. The authority, therefore, instead of opposing the bail application, illegally and with a mala fide intention took the help of the aforesaid Act and passed the order of detention. As a matter of fact the authorities have no material to oppose the bail application of the petitioner and that was the reason why the order of detention was passed. According to the learned counsel, the circumstances in which the order of detention was passed cannot be sustained in law. In this connection, learned counsel relied upon a decision in the case of Satish Kumar V/s. State of Bihar, (1996) 2 East Cr C 711. 4. On the other hand, learned counsel appearing on behalf of the State submitted that the petitioner intentionally and deliberately has not disclosed the date when the order of detention was served with him and therefore, it cannot be said that the petitioner was detained beyond the period of 12 months. Learned counsel submitted that the representation filed by the petitioner was considered by the authorities and after considering the entire materials on record, confirmed the order of detention. 5. Before appreciating the submissions made by Mr. Shivnath, learned Counsel for the petitioner, it would be useful to look into the grounds, on the basis of which the order of detention was passed by the respondent No. 2. 6. From perusal of the order as contained in Annexure-2, it appears that the petitioner is involved in several cases. The petitioner is charge-sheeted accused in RPF Case No. 3/97 in connection with theft of railway CST plates and other railway properties on a truck with arms and lethal weapon. The offence was committed by the petitioner on 21.1.1997 at night in Chas Railway Crossing. The petitioner is also named accused in RPF Case No. 4/97 dated 1.4.1997. The petitioner is also named and chargesheeted accused in Dhanbad Bank More PS Case No. 299/98 under Sections 34/323/345, IPC. The offence was committed by the petitioner on 21.1.1997 at night in Chas Railway Crossing. The petitioner is also named accused in RPF Case No. 4/97 dated 1.4.1997. The petitioner is also named and chargesheeted accused in Dhanbad Bank More PS Case No. 299/98 under Sections 34/323/345, IPC. He is also named accused in Dhanbad PS Case No. 347/98 under Sections 302/34, IPC and Section 27 of the Arms Act on the allegation that the petitioner along with his brother and other associates murdered one Md. Najir and Md. Mahbub with fire-arms at Mazar Road near Dhanbad. It further appears that apart from the aforesaid cases, the petitioner is also involved in the following criminal cases : "(1) He is named accused of FIR in Dhanbad (Bank More) PC Case No. 889/90, dt.23.12.1990 under Sections 386/120-B/34, IPC in which charged sheet has been submitted vide charge-sheet No. 18/91 dt. 12.4.1991 under Sections 386,387,120-B and 34, IPC. (2) He is accused of FIR in Dhanbad PS (Bank More Case No. 832/90 dt. 2.10.1990 under Section 386/387/120-B/506/341/34, IPC. (3) Dhanbad (Bank More) PS Case No. 1012/91 dt. 6.10.1991 under Section 414, IPC. (4) Dhanbad (Bank More) PS Case No. 247/91 dt. 24.4.1991 under Section 414/120-B and under Section 27, Arms Act. (5) Dhanbad (Bank More) PS Case No. 507/91 dt. 30.8.1991 under Section 414, IPC and Section 7, EC Act. (6) Dhanbad (Bank More) PS Case No. 616/91 dt. 6.10.1991 under Section 414, IPC. (7) Dhanbad (Bank More) PS Case No. 271/92 dt. 28.4.1992 under Sections 341/323/324/307/34, IPC. (8) Dhanbad (Bank More) PS Case No. 215/93 dt. 12.4.1993 under Section 414, IPC." 7. The respondent No. 2, therefore, after recording his satisfaction that the petitioner is an anti-social element and a habitual offender and developed terror in the public, passed the impugned order of detention with a view to prevent him from action in any manner prejudicial to the maintenance of public order and indulgence in anti-social work. 8. So far as the point raised by Mr. Shivnath regarding detention beyond 12 months, we are unable to accept the same for the reason that the petitioner has not brought on record sufficient fact to hold that the detention of the petitioner was beyond 12 months. It is not disputed by Mr. Shivnath that the authority, under the Act, can detain a person for a maximum period of 12 months. It is not disputed by Mr. Shivnath that the authority, under the Act, can detain a person for a maximum period of 12 months. The only contention of the learned Counsel is that the petitioner was detained 2-3 days more inasmuch as the first order of detention was passed on 3.6.1998 and the petitioner was ordered to be detained upto 6.6.1999. From perusal of the writ petition, it appears that the petitioner has not disclosed as to on which date the memo of detention passed by the respondent No. 2 was served on him. Admittedly, the order of detention was passed on 3.6.1998 and, therefore, it must have been served on some dates after 3.6.1998. In such circumstances, it cannot be held that the petitioner was detained 2-3 days more beyond the period of 12 months. Moreover, the period of detention of the petitioner was upto 6.6.1999, which period has already expired and, therefore, in our opinion, there is no need of going into any further discussion on this point. 9. So far the contention of the petitioners counsel that the State Government should have passed a reasoned order confirming the detention, we are of the view that there is no force in the said submission. In the instant case, the petitioner stated all the grounds before the Advisory Board and the Advisory Board, after due consideration all the points raised by the petitioner, came to the conclusion that the petitioner is a anti social element and his detention is necessary to prevent him from further deteriorating the law and order. The Advisory Board further found that the petitioner has become a terror for the public and goes on committing offences under Chapter XVI and XVII of the IPC. Be that as it may, from the materials brought before this Court, it is evident that the petitioner has been seriously involved in committing offences one after another and a series of criminal cases are pending against him. 10. Having regard to the entire facts and circumstances, we do not find any merit in this writ application, which is accordingly dismissed.