Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 698 (PAT)

Ram Kishore Singh @ Kale Singh v. State Of Bihar

2002-07-02

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha, J. 1. This writ petition has been filed for quashing an order of detention passed by the District Magistrate, Begusarai vide his memo No. 12419, dated 27.8.2001 under sec. 12(2) of the Bihar Control of Crimes Act, 1981 (in shortthe Act), the order dated 7.9.2001 by which the State Government approved the said order in terms of sec. 12(3) of the Act, and the order, dated 22.10.2001 by which the State Government confirmed the detention in terms of sec. 21(1) read with sec. 22 of the Act upto 26.8.2001. 2. For disposal of this writ petition it is not necessary to set out the facts of the case except to mention that after the graunds of detention were served on or. about 29.8.2001, on 5.10.2001 the petitioner filed representation which was rejected on 19.10.2001. In between, the case of the petitioner was placed before the Advisory Board. On or about 9.10.2001 the Advisory Board was pleased to uphold the detention. 3. Shri Pashupati Prasad Sinha, learned Counsel for the petitioner, submitted that the petitioner has been detained on stale grounds. sec. 12 of the Act contemplates "immediate arrest" of a person to prevent him from doing any act in a manner prejudicial to the maintenance of public order, if his activities cannot be prevented otherwise then by such arrest. The sprit of the section, according to the Counsel, thus, is that subject to the conditions precedent being satisfied the detaining authority must take immediate action against the person concerned. Where the incident (s) constituting grounds of detention had taken place a long time back his "preventive" detention under the Act would be outside the scope of sec. 12 and liable to be struck down. Counsel pointed out that even if the two incidents of 23.3.94 and 26.10.97 constituting the background/antecedents are ignored it would appear that the petitioner has been detained in view of the incidents of 13.3.2000 giving rise to Town P.S. Case No. 54/2000, 18.10.2000 giving rise to Muffasil P.S. Case No. 303/2000 and 2.11.2000 giving rise to Muffasil P.S. Case No. 321/2000 constituting the grounds of detention. Thus, even the last of the three incidents had taken place about 10 months prior to the detention. In the facts and circumstances, therefore, the detention of the petitioner cannot be said to be in accordance with Section 12(2) read with sec. 12(1) of the Act. Thus, even the last of the three incidents had taken place about 10 months prior to the detention. In the facts and circumstances, therefore, the detention of the petitioner cannot be said to be in accordance with Section 12(2) read with sec. 12(1) of the Act. Reliance was placed on Jagan Nath Biswas V/s. State of West Bengal -. 4. In the above said case, for the incidents of 8.11.71, 9.12.71 and 25.8.72 the detenu was detained on 27.2.73 i.e., after six months from the last incident. While quashing the detention order on the ground of "inordinate delay" the Supreme Court observed: The incidents themselves look rather serious but also stale, having regard to the long gap between the occurrence and the order of detention. One should have expected some proximity in time to provide a rational nexus between the incidents relied on and the satisfaction arrived at. This Court has repeatedly pointed out that unexplained and long delay will be fatal to the plea of subjective satisfaction. The Court noticed that earlier time had been allowed to the State Government to furnish an explanation as to why such a long delay was made by the District Magistrate to pass an order of detention but no explanation had been furnished by the District Magistrate. The Court held, in the circumstances, that it was "not satisfied about the bona fides of the subjective satisfaction of the District Magistrate". 5. In the instant case, no explanation whatsoever has been furnished in the counter-affidavit on behalf of the respondents. As a matter of fact, the affidavit sworn by the Deputy Collector Incharge Legal Section on behalf of District Magistrate i.e. the detaining authority and not by the District Magistrate himself, does not even show any awareness on the part of the authority that there had been delay in making the detention order. Learned Standing Counsel No. 3, appearing on behalf of the respondents, submitted that the petitioner was in jail custody in connection with the Muffasil P.S. Case No. 321/2000 since 3.11.2000 and, therefore, there was no occasion for the Detaining Authority to make any order of detention, the detention order came to be passed when the District Magistrate found that the petitioner had filed application for bail in High Court and on being satisfied about the likelihood of his release on bail passed the detention order. 6. 6. The argument seems to be attractive but cannot be accepted for two-fold reason. Firstly, there is no bar to passing detention order in respect of persons already in jail custody in connection with any substantive case under the Indian Penal Code or otherwise, which would depend on the subjective satisfaction of the Detaining Authority. Secondly, there is no such averment either in the order of detention or in the counter-affidavit. The detention order is passed on the subjective satisfaction of the detaining authority. If the District Magistrate bona fide believed that so long as the petitioner was in jail custody there was no occasion to make any order of detention under the Act, he should have said so in the counter-affidavit, if not in the order of detention itself. But as stated above, the counter-affidavit does not reflect even an awarness that there should be proximity between the incidents constituting grounds of dentition and the detention of the person. This Court cannot speculate, as the learned Standing Counsel apparently did as a part of his argument, to wriggle out of the situation. The subjective satisfaction as aforesaid had to be that of the Detaining Authority and the Court cannot substitute its own satisfaction and fill the gap. In the above premises, the order of detention passed after about ten months of the last incidents and about 17 months of the first incident constituting grounds of detention cannot be said to be in accordance with law. 7. In fairness to the petitioner, it must be mentioned that the impugned detention was also challenged on the grounds that the order was passed to pre-empt the petitioners release on bail and, therefore, cannot be said to be bona fide, that the materials in support of their detention order were not furnished along with grounds, and that there was delay in considering the representation. In view of my conclusion on the first point about delay in passing the detention order it is not necessary to consider those submissions, for, on the first point itself the impugned detention order is liable to be quashed. 8. In the result, the writ petition is allowed, the impugned order of detention dated 27.8.2001 and the subsequent orders, referred to above, are quashed. The petitioner is directed to be released from detention forthwith, if not wanted in any other case. 9. Tarkeshwar Prasad Singh, J.: I agree.