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2001 DIGILAW 28 (PAT)

Kamar Raja v. State Of Bihar

2001-01-11

A.K.SINHA, R.N.PRASAD

body2001
Judgment 1. The Superintendent of Police, respondent no. 5, submitted a report dated 2.6.2000 to the Collector, respondent no. 4 mentioning the details of the criminal activities of the petitioner including the cases lodged against him for initiating a proceeding under the Bihar Control of Crimes Act stating that the petitioner is in Siwan jail and if he would be released there is chance of public order being adversely affected. On receipt of the report respondent no.4 initiated a proceeding under the Bihar Control of Crimes Act bearing no. 549 dated 24.6.2000 and the petitioner was detained taking cognizance of the fact that the petitioner is in jail. A copy of the order was served on the petitioner. The petitioner on receipt of the order filed a representation on 3.7.2000 but no order was passed on the said representation. However, the order of detention dated 30.6.2000, Annexure 2, passed by respondent no. 4 was approved by the State Government, Annexure 3. Sub- sequently, on receipt of the report of the Advisory Board final order under section 12(2) of the Bihar Control of Crimes Act was pased detaining the petitioner for the period of one year i.e. till 23rd June, 2001 vide order dated 29.8.2000. On the same day the representation of the petitioner was rejected and it was communicated vide letter dated 29.8.2000, Annexure 6. The petitioner has thus, filed this writ application challenging the order of detention. 2. Counter affidavit has been filed on behalf of the respondents no. 2 and 3 stating details of the action taken against the petitioner. It was also admitted in the counter affidavit that representation of the petitioner was received on 3.7.2000. On receipt of the representation comment was asked for from the District Magistrate, respondent no. 4, which was not sent immediately rather it was sent on 5.8.2000. The meeting of the Advisory Board was to be held on 8.8.2000 and as such no order was passed and the representation of the petitioner was placed before the Advisory Board. The Advisory Board concluded that there was sufficient ground for detention of the petitioner and as such while passing final order of detention under section 12(2) of the Bihar Control of Crimes Act the representation of the petitioner was also rejected. 3. The Advisory Board concluded that there was sufficient ground for detention of the petitioner and as such while passing final order of detention under section 12(2) of the Bihar Control of Crimes Act the representation of the petitioner was also rejected. 3. Learned counsel for the petitioner contended that representation of the petitioner fifed on 3.7.2000 was rejected on 29th August, 2000 i.e. after 59 days of the filing of the representation. It is violation of Article 22(5) of the Constitution of India and as such the order of detention is bad in law. Learned Standing Counsel no. VIII reiterated the stand taken in the counter affidavit with regard to delay in disposal of the representation and submitted that since the representation was placed before the Advisory Board, the same could not be disposed of earlier. 4. From the materials on record it is evident that proceeding was initiated against the petitioner on 24.6.2000. The representation was filed on 3.7.2000 which was rejected on 29.8.2000, Annexure 6. i.e. after 59 days of the filing of the representation. The delay in disposal of the representation as has been stated in the counter affidavit is that comment was asked for from the District Magistrate which was not sent immediately. The date of the meeting of the Advisory Board was fixed 8.8.2000 and as such representation was placed before the Advisory Board and pursuant to the recommendation of the Advisory Board final order under section 12(2) of the Bihar Control of Crimes Act was passed on 29.8.2000 and accordingly representation of the petitioner was also rejected on the same day. 5. Learned counsel for the respondents relied upon a decision in the case of K. M. Abdulla Kunhi and B. L. Abdul Khader V/s. Union of India, A.I.R. 1991 SC 574, for the proposition that if the representation is placed before the Advisory Board then the same cannot be taken as delay in disposal of the representation. It is evident from the aforesaid decision that wher representation was filed meeting of the Advisory Board was fixed and as such representation was placed before the Advisory Board and as such the Honble Supreme Court held that in such a situation the placing of the representation before the Advisory Board cannot be taken as illegal and delay in disposal of the representation. However, in para 11 of the said judgment it has been held that the consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Cl. (5) of Article 22 of the Constitution and it is independent of the consideration by the detenus case and his representation by the Advisory Board. Therefore, we are of the view that the decision relied upon by the learned counsel for the respondents does not stand for their rescue. The right of the representation is a constitutional right as provided under Article 22(5) of the Constitution of India. The constitutional right cannot be taken away or denied by any authority- In the case of Saleh Mohammed V/s. Union of India and others, A.I.R. 1981 SC 111 the apex court held that the delay in disposal of the representation for three weeks has to be considered unreasonable delay and order of detention was held to be bad and the detenu was directed to be released. Same view has been expressed in the case of Pabitra N. Rana V/s. Union of India and others, A.I.R. 1980 SC 798 and it has been held that unreasonable delay in disposal of the representation will entail upon the order of detention and would be bad in law. Therefore, on consideration, as discussed above, it is evident that representation of the petitioner was disposed of after 59 days and simultaneously final order under section 12(2) of the Bihar Control of Crimes Act was passed. Such delay, in our view, has not been properly explained nor it can be Said that such delay is not in violation of Article 22(5) of the Constitution of India. 6. Therefore, this application is allowed. The order of detention is hereby quashed. The detenu shall be released forthwith if not required in any other case.