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2000 DIGILAW 527 (PAT)

Laxman Choudhary v. State Of Bihar

2000-04-04

ASHOK KUMAR VERMA, N.PANDEY

body2000
Judgment 1. Petitioner Laxman Choudhary has filed this writ petition for quashing the order of detention dated 29.11.1999, as contained in Annexure-2, passed by the State Government under Section 12(2) of the Bihar Control of Crimes Act, 1981, (hereinafter referred to as the Act) whereby and whereunder the detention order of the District Magistrate, Siwan, dated 17.11.1999, as contained in Annexure 1 has been approved. We have heard the learned counsel for the petitioner and the State and have also perused the writ petition and counter-affidavit. Therefore, this writ application is disposed of at this stage itself. 2. As would appear from the facts on record, the District Magistrate having regard to the criminal activities of this petitioner is some of the cases, detained him under Section 12(2) of the Act vide order dated 17.11.1999 which was approved by the State Government by order dated 29.11.1999 with an opportunity to the detenu-petitioner to file a representation against the order of detention, if any. The said order was served to the petitioner on 4.12.1999 and on the same day, as it has been stated in the writ petition, he filed a representation, a copy of which is Annexure-3. This writ petition was filed an 15.2.2000 with a grievance, although the petitioner filed a representation on 4.12.1999 but the same was not yet disposed of. 3. It appears from the order-sheet of this case that having appreciated the aforesaid grievance of the petitioner, on 16.2.2000, the Court directed the State Government to file a counter-affidavit so that the matter could be disposed of. On 2.3.2000, since no counter-affidavit was filed, therefore, at the request of the learned counsel for the State, three weeks time was further granted. Similar was the position on the next date i.e. 27.3.2000 and again the case was adjourned to 30.3.2000 at the request of the learned counsel for the State. Ultimately, on 30.3.2000 itself, a counter-affidavit was filed on behalf of respondent No. 4 giving details of the criminal cases in which this petitioner was charge- sheeted. It was also stated that having regard to the petitioners criminal and anti-social activities, which had become a menace for public order at large, such steps were taken. With respect to the main grievance of the petitioner regarding non-disposal of the representation, of course, a vague statement was made that the same was already rejected by the State Government. 4. It was also stated that having regard to the petitioners criminal and anti-social activities, which had become a menace for public order at large, such steps were taken. With respect to the main grievance of the petitioner regarding non-disposal of the representation, of course, a vague statement was made that the same was already rejected by the State Government. 4. Learned counsel for the petitioner asserted that no such order was ever communicated to his client. Therefore, the Court should draw a presumption that the representation was not yet disposed of. Learned counsel contended that there are numerous cases either disposed of by this Court or the Apex Court where such orders were quashed merely on the ground that the representations were disposed of after unusual and unexplained delay. In support of his contention, the learned counsel placed reliance to a decision of the Apex Court in the case of Rajammal V/s. State of Tamil Nadu and another, AIR 1999 SC 684 and yet another unreported decision of this Court in Cr WJC No. 685 of 1999 disposed of on 18.1.2000. 5. In our view the grievance of the petitioner appears justified because from a bare reference to the provisions of Article 22 of the Constitution of India, it would appear that any person, if detained in pursuance of the order made under any law provided 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 earlier opportunity of making a representation against the order. The provision as incorporated under Section 17 of the Act is exactly in line with the provisions as provided. under Article 22 of the Constitution. 6. It is well-known that the preventive detention curtails the liberty of a person without holding any trial. The detenu has a right of making representations which should be considered expeditiously. In this case, as alleged, although a representation was filed by the petitioner which was admittedly not disposed of till 16.2.2000. Of course, a vague statement has been made in paragraph 24 of the counter- affidavit filed on 30.3.2000 that the representation was rejected. But in spite of sufficient opportunity to the State, neither any copy of such order was produced before this Court nor any date was mentioned when such a representation was disposed. Of course, a vague statement has been made in paragraph 24 of the counter- affidavit filed on 30.3.2000 that the representation was rejected. But in spite of sufficient opportunity to the State, neither any copy of such order was produced before this Court nor any date was mentioned when such a representation was disposed. In fact, according to the petitioner since till this day no order rejecting the representation was served, therefore, it will be presumed that the same has not yet been disposed of. 7. It would appear from the aforesaid decision of the Apex Court that simply because a delay of five days was not explained satisfactorily the order of detention was quashed true it is, inappropriate cases, even longer delay in disposal of the representation can be well explained by the Government but in such cases the authorities must come forward with cogent and convincing materials so that one can justify the delay is disposal of the representation, if any. But in this case, unfortunately, in spite of ample opportunity, the respondents have not been able to come forward with any specific case under what circumstances, the representation was not disposed of and/ or if disposed of what was the reason for such unusual delay. 8. We, therefore, taking into consideration the facts noticed above, have no option but to allow this writ petition and quash the impugned order as well as the order of the District Magistrate so that the petitioner can be set at liberty, if not required to be detained in any other case. This order will, however, not prejudice the case of the prosecution in any of the cases which have been referred to by the District Magistrate in his order contained in Annexure 5 dated 17.11.1999.