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2000 DIGILAW 576 (PAT)

Abhay Choudhary v. State Of Bihar

2000-04-13

ASHOK KUMAR VERMA, N.PANDEY

body2000
Judgment 1. This writ petition has been filed for quashing the order dated 25.10.1999, as contained in Annexure-1, whereby, the State Government, Home (Police) Department, in exercise of the powers conferred by Section 21(1) read with Section 22 of the Bihar Control of Crimes Act, 1981, hereinafter referred to as the Act, has been pleased to confirm the detention order dated 9.9.1999, as contained in Annexure-2, passed by the District Magistrate, Samastipur under Section 12(2) of the said Act with a direction that the petitioner shall remain in detention till 9.9.2000. 2. As would appear from the materials on record, the District Magistrate, Samastipur, being satisfied in order to prevent the writ petitioner from acting in any manner pre-judicial to the maintenance of the public order in his power conferred by sub- section (1) of Section 12 of the Act detained him in Sub-jail Rosera. Along with the said order a copy of the grounds of detention, as contained in Annexure-3, was also served from which it appears that as many as six criminal cases under various Sections of the Indian Penal Code like Sections 302, 363, 364, 307 and 387 etc. were instituted against him. The petitioner was also given liberty to file representation, if so desired. But as would appear from the counter-affidavit, filed in this case, no representation was filed. 3. On 16.9.1999 the State Government also by order, as contained in Annexure-4, in exercise of its power conferred by Section 12(3) of the Act approved the detention order with a copy to the writ petitioner. In the said order a liberty was also given to the petitioner to file representation against the detention order to the Government, if so desired. Ultimately, as would appear from the impugned order, the Advisory Board also in its decision found sufficient grounds for the detention of the petitioner, which was ultimately approved by the impugned older. 4. Mr. Thakur learned counsel appearing for the petitioner firstly contended that, as would appear from the judgment dated 17.6.1999, passed by the learned Sessions Judge, Samastipur, in Sessions Trial No. 48 of 1999, arising out of Rosera Police Station Case No. 44 of 1998, the petitioner was acquitted of the charges. 4. Mr. Thakur learned counsel appearing for the petitioner firstly contended that, as would appear from the judgment dated 17.6.1999, passed by the learned Sessions Judge, Samastipur, in Sessions Trial No. 48 of 1999, arising out of Rosera Police Station Case No. 44 of 1998, the petitioner was acquitted of the charges. It would appear that ground No. 1 of detention was that the petitioner was made accused in Rosera Police Station Case No. 44 of 1998 under Section 302 of the Indian Penal Code. But since the petitioner was already acquitted for such a charge, therefore, the consideration of the District Magistrate on such a ground was mm eat. He, therefore, contended since one of the grounds had become non est on the day of the order of detention, all the subsequent orders regarding detention became illegal and unauthorised. Reliance in this regard was made to a decision of this Court in the case of Raj Kumar Gupta v. State or Bihar and others, 1990 PLJR 69 : 1990 East Cr C 212. In our view, from a bare reference to Section 12-A(1)(a), as inserted by Act 9 of 1994, it would appear that there is no substance in the aforesaid submission of the learned counsel, Because in view of the said provision the order of detention shall not be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, non-relevant, not communicated with such person or invalid tor any other reason whatsoever and accordingly on the basis of the remaining grounds order of detention can be held to be justified. 5. Mr. Thakur next contended although the petitioner on receipt of the grounds of detention filed a representation through the Jail Superintendent, but the same was not disposed of. Therefore, for this reason also the order of detention has become illegal and thus, fit to be quashed. Because in view of the constitutional guarantee under Article 22(5) when any person is detained in pursuance of an order made under any law for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order of detention has been made and shall afford him the earliest opportunity of making representation against the order. He contended that in view of the aforesaid provision as well as various decisions of this Court as also the Apex Court, in a case where there is unexplained delay in disposal of the representation, orders of the defaming authorities were quashed. 6. In our view, there cannot be any dispute that the authorities are required to take utmost care and precaution to communicate the grounds of detention and also to dispose of the representation, if any, without any delay. Because in a case where a person is under preventive detention, his liberty is curtailed without the proof of his guilt, merely on suspicion and subjective satisfaction of the detaining authority, as no charge is to be proved beyond reasonable doubts as happens in criminal trials. Therefore, in case of any unexplained delay in disposal of the representation, the order of detention would certainly vitiate. 7. But as would appear from the counter-affidavit filed on behalf of the District Magistrate as well as the counter-affidavit, which was filed on behalf of the State Government, no representation whatsoever was filed by the petitioner. Although in paragraph No. 7 of the writ petition, statement was made on behalf of the petitioner that his representation was not disposed of, but neither any date for making such a representation was furnished nor a copy thereof, particularly when there was a specific denial by the authorities about filing of representation. Therefore, in our view, there appears no substance in this submission as well. 8. Accordingly, for the reasons stated above, we find no merit in this writ petition and the same is hereby dismissed.