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2002 DIGILAW 737 (PAT)

Mohan Singh v. State Of Bihar

2002-07-13

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha and T.P.Singh JJ. 1. The petitioner has been detained under preventive custody by the District Magistrate, Begusarai vide his order no. 2420 dated 27.8.2001 under section 12(2) of the Bihar Control of Crimes Act, 1981 (in short the Act). 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 Act by the State Government on 7.9.2001 and 17.10.2001 respectively. The petitioner seeks quashing of the aforesaid orders and his release. 2. It is not necessary to set out the facts of the case except to mention that the grounds of detention was served on the petitioner along with the detention order itself on 29.8.2001. On 5.10.2001 the petitioner filed representation which according to him was rejected on 17.10.2001. In between his case was placed before Advisory Board. On 9.10.2001 the Adivsory Board gave its opinion in favour of the detention. 3. Shri Pashupati Prasad Sinha, learned counsel for the petitioner, submitted that section 12 of the Act envisages detention of a person to prevent him from committing any act prejudicial to maintainability of public order. Though such detention depends on the subjective satisfaction of the detaining authority, keeping in view the spirit of section 12 which envisages " immediate arrest" of the person to prevent him from committing any act prejudicial to maintenance of public order, such action must be taken in close proximity of events constituting the grounds of detention. In the instant case, the last of the three acts which formed the ground of detention was committed on 2,11.2000 i.e. ten months prior to the issuance of detention order and there is no explanation as to why the detention order was not passed soon after the act was committed. ance was placed on Jagan Nath Biswas V/s. State of West Bengal, AIR 1975 Supreme Court 1516. Shri Sinha also submitted that there was delay in disposal of representation and on this ground alone further detention is liable to be quashed. 4. We do not find any substance in the second contention. The government file was produced by the Standing cosel for our perusal which shows that the rep resentation filed on 5.10.2001 was sent by the Jail authorities on the same day i.e. Special Magistrate and received in the department on the following day i.e. 6.10.2001. 4. We do not find any substance in the second contention. The government file was produced by the Standing cosel for our perusal which shows that the rep resentation filed on 5.10.2001 was sent by the Jail authorities on the same day i.e. Special Magistrate and received in the department on the following day i.e. 6.10.2001. On 8.10.2001 the comments of the detaining authority i.e. District Magtrate, Begusarai was received. The representation was dealt with by the office on 12/13.10.2001. Endorsing the views of the office the Home Secretary on 13.10.2001 placed the matter before the Minster Incharge (Chief Minister), who passed the order on 16.10.2001. The order was communicated on 17.10.2001. 5. It would, thus, appear that there was no delay in the disposal of the representation. The Supreme Court has held that where delay occurs in disposal of the representation it is open to the authorities to explain the delay while unexplaine delay of a few days may be fatal to detention where proper explanation is submitted, even longer delay may be condoned, in the instant case, according to the respondent though the comments of the Dsitrict Magistrate was received on 8.10.2001 the representation was not dealt with because the matter was fixed for hearing by the Advisory Board on the very next day i.e. 9.10.2001. On 12.10.2001 the opinion of the Board was received and on the same day the matter was dealt with by the office. Though there is no bar to the authority dealing with the representation without waiting for the opinion of the Board, where they bonafide waited for receipt of the opinion, considering the fact that the Advisory Board was scheduled to consider the matter on the very next day, we do not think the authorities were lacking in bonafide. Thus, we do not find any substance in the contention about delay in disposal of the representation. 6. As regards the first point regarding delay in making the detention order, however, we find that the case of the petitioner finds support from the decision of the Supreme Court in case of Jagan Nath Biswas (supra). In that case, for incidents of 8.11.71, 9.12.71 and 25.8.72 the detenu was detained on 27.2,73. Terming the delay as inordinate and quashing the detention order, on that ground, the Supreme Court observed. In that case, for incidents of 8.11.71, 9.12.71 and 25.8.72 the detenu was detained on 27.2,73. Terming the delay as inordinate and quashing the detention order, on that ground, the Supreme Court observed. The incidents themselves look rather serious but also stale, having regard to the long gap between the occurrences 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." 7. In the instant case, the order of detention has been passed in view of the incidents of 13.3.2000, 18.10.2000 and 2.11.2000. Reckoned from the last incident the detention order was thus passed after about ten months. When the case came up for hearing on 4.7.2002 we noticed that there was no explanation either in the detention order or in the affidavit as to why the detaining authority considered it necessary to pass the order of detention notwithstanding passage of ten months time. On the prayer of the Standing counsel time was allowed to file supplementary counter affidavit. A supplementary counter affidavit has been filed but nothing whatsoever has been stated as to why there was delay in passing the detention order. In the absence of any explanation, in view of express language of section 12 of the Act and considering the judicial pronouncement on the point, there cannot be any doubt that there should be proximity between the alleged acts constituting the ground of detention and making of detention order. Where the alleged acts were committed a long time back, for the purpose of detention they should be taken to have become stale. It should be kept in mind that section 12 envisages immediate arrest of the person. If the authority takes ten months time to arrive at the satisfaction and then issues detention order and no explanation is furnished in regard to delay it cannot be said that satisfaction so arrived at was in accordance with the provisions of section 12 of the Act. The case of the petitioner, in our opinion, is thus covered by the ratio of the decision in Jagan Nath Biswass case wherein too despite adjournments granted earlier, no explanation had been furnished. The case of the petitioner, in our opinion, is thus covered by the ratio of the decision in Jagan Nath Biswass case wherein too despite adjournments granted earlier, no explanation had been furnished. The Court observed that it was not satisfied about the bonafide of the subjective satisfaction of the District Magistrate. It may be mentioned that in a similar case of Ram Kishore Singh @ Kale Singh we have quashed the detention order, issued on or about the same day, on 2nd July 2002, in Cr.W.J.C. No. 142 of 2002. 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 and the petitioner is directed to be released from detention forthwith, if not wanted in any other case. 9. Let this order be communicated to the Superintendent of Jail, where the petitioner has been lodged.