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2002 DIGILAW 1034 (PAT)

Ram Babu Sahni v. State Of Bihar

2002-09-23

ANIL KUMAR SINHA, S.N.JHA

body2002
Judgment S.N.Jha, J. 1. The petitioner has been detained under Section 12(2) of the Bihar Control of Crimes Act vide order of the District Magistrate, Begusarai, contained in his Memo No. 580/Legal dated 11.3.2002. The detention has been approved under Section 12(3) of the Act and later confirmed under Section 21(1) read with Section 22 of the said Act by the State Government vide orders dated 22.3.2002 and 13.5.2002. Copies of the said orders are Annexures 12 and 4 to the writ petition. The petitioner seeks quashing of the orders and his release. 2. The order of detention was served on the petitioner while he was in judicial custody in the Begusarai Jail on 11.3.2002 itself. The grounds of detention were served three days after on 14.3.2002. On 24.3.2002 the petitioner submitted his representation. The representation was rejected and the same was communicated to him on 16.4.2002. 3. Shri Ajay Kumar Thakur, learned counsel for the petitioner, submitted that in this case there has been inordinate delay in disposal of the representation amounting to violation of the petitioners fundamental right of expeditious consideration of the representation under Article 22 of the Constitution. 4. The submission proceeds on the assumption that the representation was rejected on 16.4.2002 which is not true. From the file of the Home (Special) Department, which was produced by the Standing Counsel at the time of hearing, it appears that the representation was rejected on 6.4.2002 itself. On 16.4.2002 the rejection was communicated. The question is whether the delay of thirteen days can be said to be inordinate so as to vitiate the continued detention of the petitioner. The Supreme Court in one of the cases has held that while a short delay may be fatal, longer delay may not, provided the delay is explained. What is thus really of substance is not the period of delay but the explanation. In the instant case from the above said file of the Home (Special) Department it appears that the representation of the petitioner was received in the Department on 25.3.2002. On 26.3.2002 the office suggested that the comments of the District Magistrate may be obtained. The proposal was approved on 27.3.2002. However the District Magistrate, it appears, on his own sent its comments on 27.3.2002 itself which was received in the Department on 30.3.2002. On 26.3.2002 the office suggested that the comments of the District Magistrate may be obtained. The proposal was approved on 27.3.2002. However the District Magistrate, it appears, on his own sent its comments on 27.3.2002 itself which was received in the Department on 30.3.2002. The representation was dealt with by the Dealing Assistant and the Section Officer on the same day i.e. on 30.3.2002. On 1.4.2002 it was dealt with by the Under Secretary and the Deputy Secretary. On 2.4.2002 the Home Commissioner submitted his note before the Chief Minister i.e. the Minister incharge, who was pleased to reject the representation, agreeing with the opinion of the Home Commissioner, on 6.4.2002. Though the Chief Minister/Minister Incharge took four days to decide the representation, in the facts and circumstances, the delay cannot be said to be fatal particularly considering that on the whole it took only 13 days to do so. The contention of the counsel accordingly stands rejected. 5. Counsel then submitted that the detention order was served while the petitioner was in jail. Though there is no bar to serving detention order while the person is in custody, there should be awareness on the part of the Detaining Authority that he is likely to be released in near future which is lacking in the instant case. The submission is wholly unfounded both on facts and in law. 6. From the memo portion of the detention order dated 11.3.2002 it is evident that the District Magistrate, Begusarai was aware of the fact that the petitioner was in custody on the date of the order, and that is why he directed the Superintendent of Begusarai Jail to serve detention order on him. Besides, in the grounds of detention dated 14.3.2002 there is specific statement that there is strong likelihood of the petitioner being released on bail, for which he was making serious efforts. 7. In Rameshwar Shaw V/s. District Magistrate, Burdwan, AIR 1964 SC 334 while dealing with the question of passing detention order in respect of person in jail custody, a Constitution Bench of the Supreme Court held that as an abstract proposition of law, the order of detention can be made against a person in jail custody. 7. In Rameshwar Shaw V/s. District Magistrate, Burdwan, AIR 1964 SC 334 while dealing with the question of passing detention order in respect of person in jail custody, a Constitution Bench of the Supreme Court held that as an abstract proposition of law, the order of detention can be made against a person in jail custody. In Makhan Singh Tarsikka V/s. State of Punjab, AIR 1964 SC 1120 another Constitution Bench observed that when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may in a given case take the view that the criminal proceedings may end very soon and may terminate in his acquittal. In such a case it would be open to the appropriate authority to make an order of detention where the requisite conditions of the rule or the section are specified and served on the person concerned if and after he is acquitted in the said criminal proceedings. in Masood Alam V/s. Union of India & Ors., AIR 1973 SC 897 , the Court went a step further. After noticing the earlier cases, noted above, the Court observed:- "No doubt, this decision does suggest that the order of the detention can be served on the person concerned if and after he is acquitted in the said criminal proceedings but in our view merely because the person concerned has been served while custody when it is expected that he would soon be released that service cannot invalidate the order detention. The real hurdle in making an order detention against a person already in custody is based on the view that it is futile to keep a person in dual custody under two different orders but this objective cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease." The parameters of making detention order for preventive detention of the person already in custody have been laid down in Marugu Satyanarayana V/s. State of Andhra Pradesh & Ors., AIR 1982 SC 1543 in these words :- "It must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. But as stated by this Court it will depend on the facts and circumstances of each case." In response to the argument put forward on behalf of the detenu that such subjective satisfaction must appear from the record, the Court clarified that "this awareness must find it place either in the detention order or in the affidavit justifying the detention order when challenged". 8 In the instant case, as seen above, the order itself reflects awareness on the part of the detaining authority about the petitioners being in jail custody. The grounds of detention further reflects the subjective satisfaction that the petitioner is likely to be released on bail soon. Where such awareness and satisfaction are borne out from the record the detention order cannot be set aside on the ground that when the order was issued the petitioner was already in custody. The submission of the counsel in this regard is thus rejected. 9. Counsel finally submitted that there is no proximity of time between the acts of alleged forming the ground of detention and the issuance of detention order. He relied on a decision in Ram Kishore Prasad Singh V/s. State of Bihar, 2002(3) PLJR 372 . It was submitted that out of the three incidents forming grounds of detention, even the last one took place on 1.10.2001 i.e. five months ago. If the Detaining Authority was of the view that the alleged incidents justified detaining the petitioner he should have immediately issued an order. But by not issuing any such order for five months, even reckoned from the date of such incident, the satisfaction of the Detaining Authority was not bonafide. I do not find any substance in this contention either. 10. The three incidents forming the grounds of detention appear to have taken place on 26.5.2000 giving rise to Barauni (Birpur) PS Case No. 170/2000, 8.12.2000 giving rise to Gaya (Civil Lines) PS Case No. 332/2000 and 1.10.2001 giving rise to Begusarai Town PS Case No. 331/2001. I do not find any substance in this contention either. 10. The three incidents forming the grounds of detention appear to have taken place on 26.5.2000 giving rise to Barauni (Birpur) PS Case No. 170/2000, 8.12.2000 giving rise to Gaya (Civil Lines) PS Case No. 332/2000 and 1.10.2001 giving rise to Begusarai Town PS Case No. 331/2001. In the first incident, the petitioner along with others known and unknown, is alleged to have opened fire in order to put obstruction in discharge of official duties. In the second incident, he along with others is alleged to have committed dacoity in a Bank taking away Rs. 25 lac: In the third incident he is alleged to have made demand for extortion money and terrorising the victims indulging in firing. The petitioner in fact seems to have a long history of crimes involving extortion demand vide Barauni (Birpur) PS Case No. 470/96, bank dacoity vide Barauni (FCI) PS Case No. 150/97, arson and extortion demand vide Town PS Case No. 31/98, murder vide Barauni (Birpur) P.S.Case No. 269/98, attempt to murder vide Barauni (Birpur) PS Case No. 345/98 and dacoity vide Bokaro (chas) PS. Case No. 201/99. It appears that the area of activities extends beyond the district of Begusarai up to Gaya and Bokaro. Though the earlier cases referred to above have been cited as background of detention which does not form part of the grounds, the resume of the cases shows the type of the person the petitioner is. The question of proximity of time, in my opinion, is to be considered with reference of the facts of the case. Though the last incident took place five months prior to the issuance of the impugned detention order, as seen above the petitioner has a long and consistent history of committing crime from 1996. 11. The facts of the case of Ram Kishore Prasad Singh were different. Besides other things, the last incident took place ten months prior to the detention order. Time was earlier allowed to the District Magistrate to explain the delay but no explanation was furnished in the supplementary counter affidavit. In the facts and circumstances therefore the court held that the order of detention passed after about ten months of the last incident and 17 months of the first incident constituting the grounds of detention cannot be said to be in accordance with law. In the facts and circumstances therefore the court held that the order of detention passed after about ten months of the last incident and 17 months of the first incident constituting the grounds of detention cannot be said to be in accordance with law. The decision is of no help to the petitioner. 12. Though in writ jurisdiction the Court does not sit as a court of appeal, nevertheless in the facts and circumstances of the case it seems apt to observe that the petitioner appears to be hardened and habitual criminal and his detention under the Bihar Control of Crimes Act cannot be said to be unjustified and illegal. 13. In the result, I do not find any merit in this writ petition which is accordingly dismissed. Anil Kumar Sinha, J. 14 I agree.