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2000 DIGILAW 162 (PAT)

Fakruddin Ali Ahmad @ Fakru v. State Of Bihar

2000-01-31

ASHOK KUMAR VERMA, NAGENDRA RAI

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Judgment Nagendra Rai and Ashok Kr.Verma JJ. 1. This writ application has been filed for quashing the order of detention dated 10.5.1999, passed by the District Magistrate, Siwan in exercise of power under Section 12(2) of the Bihar Control of Crimes Act (hereinafter referred to be as the Act) as well as the order dated 18.5.99, passed by the State Government approving the said order of detention in exercise of power under Section 12(3) of the Act and the order dated 7th July, 1999, passed by the State Government, confirming the aforesaid order of detention. Copies of the said orders have been made Annexures 5, 8 and 9 respectively. 2. The facts necessary for disposal of the present writ application are that the District Magistrate, Siwan being satisfied that the petitioner is an anti social element and his activity cannot be prevented otherwise by his immediate arrest, passed an order of detention with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. The grounds of detention were also served upon the petitioner. The said order of detention was approved by the State Government under Section 12(3) within the statutory period on 18.5.99. On 30th May, 1999, the petitioner filed a representation after receipt of the grounds asserting therein that even if the entire allegations as contained in the grounds of detention be accepted, the petitioner is not an anti social element as defined under the Act and as such, his detention is impermissible in law. Thereafter the matter was placed before the Advisory Committee and the Advisory Committee had opined that the detention of the petitioner was valid and thereafter the State Government confirmed the order of detention on 7th July, 1999 in exercise of power under Section 21(1) of the Act and fixed the period of detention up to 9.5.2000 under Section 22 of the Act. The representation filed by the petitioner was also rejected on 7th July, 1999 and the same was communicated to the petitioner, a copy of which has been annexed as Annexure 10 to the writ application. 3. Learned counsel for the petitioner raised two points. The representation filed by the petitioner was also rejected on 7th July, 1999 and the same was communicated to the petitioner, a copy of which has been annexed as Annexure 10 to the writ application. 3. Learned counsel for the petitioner raised two points. Learned counsel firstly submitted that even if the grounds are taken on their face value, the petitioner is not an anti social element as such the District Magistrate was not justified in passing the order of detention and secondly there is inordinate and unexplained delay in disposing of the representation which is violative of statutory rights as guaranteed under the Act which is nothing but incorporation of the constitutional provisions as contained under Article 22(5) of the Constitution of India. 4. Learned counsel appearing for the State on the other hand, contended that the petitioner was found indulged in several cases of serious nature and as such he was an anti social element as defined under the Act and the District Magistrate, after being satisfied about the grounds, had passed the order of detention. He also submitted that there was no delay in disposal of the representation and as such, there was no violation of the constitutional right as well as the statutory rights as urged on behalf of the petitioner. 5. After having heard the learned counsel for the parties, we are of the view that this application can be allowed on the second point for the reasons stated hereinafter and as such it is not necessary to dwell upon the first point urged on behalf of the petitioner. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authorities are to communicate such person, the ground on which the order has been made and afford him opportunity for making a representation against the order at the earliest. The said constitutional mandate has been incorporated in Section 17 of the Act which provides that the authorities have to afford an opportunity of making representation to the State Government at the earliest. 6. The order of preventive detention curtails the personal liberty guaranteed under the Constitution. The said constitutional mandate has been incorporated in Section 17 of the Act which provides that the authorities have to afford an opportunity of making representation to the State Government at the earliest. 6. The order of preventive detention curtails the personal liberty guaranteed under the Constitution. The right of representation has been given with a view that the said representation is to be considered at the earliest so that in case it is found that the detention order is not in accordance with law, the detenu should be released forthwith. Inordinate delay or unexplained delay has been held to be violative of constitutional mandate under Article 22(5) and on this ground alone the order of detention will vitiate. The Apex Court in catena of cases has held that the representation has to be disposed of at the earliest and if there has been the delay in disposal of the representation, the reasons for the delay must be indicated to the court or else the unexplained delay or unsatisfactory explanation in the disposal of the representation would fatally affect the order of detention and in that situation the continued detention becomes bad. Reference in this connection may be made to the decision of the Supreme Court in the case of Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad and ors. (A.I.R. 1996 S.C. 2998). 7. in this case admittedly the representation was filed on 30th May, 99 and it is clearly and specifically stated in the writ petition that this representation was disposed of after long delay and no explanation has been stated for delay in disposal of representation. The said statement has not been denied in the counter affidavit and only vague statement has been made in paragraph 10 of the counter affidavit that the representation of the petitioner has been disposed of expeditiously and there is no lapse or undue delay in disposal of representation of the petitioner. There is no statement in the counter affidavit as to when the representation was dealt with after it was received by the authority concerned. No reason has been assigned as to the delay in disposal of representation. There is unexplained delay of about 37 days in disposal of the representation. There is no statement in the counter affidavit as to when the representation was dealt with after it was received by the authority concerned. No reason has been assigned as to the delay in disposal of representation. There is unexplained delay of about 37 days in disposal of the representation. If there would have been some explanation for delay in disposal of the representation in the counter affidavit, then this court would have gone into the matter to find out as to whether the delay explained is satisfactory or not. As stated above, there is no statement in the counter affidavit except vague assertion mentioned above. The delay of 37 days in disposal of the representation has not been explained as yet, the result is that the constitutional mandate as contained in Article 22(5) of the Constitution and the statutory provision as contained in Section 17 of the Act have been violated, as a result of which the detention order has to be declared invalid. On this ground alone the order of detention has to be quashed. 8. Accordingly the order of detention as contained in Annexure 5, the order of approval as contained in Annexure 8 and order of confirmation as contained in Annexure 9 are quashed and the petitioner is ordered to be released forthwith unless he is required to be detained in any other case. In the result this application is allowed.