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2002 DIGILAW 874 (PAT)

Ram Sewak Singh v. State Of Bihar

2002-08-12

S.N.JHA, T.P.SINGH

body2002
Judgment S.N.Jha and T.P.Singh JJ. 1. The petitioner seeks quashing of his detention under Section 12(2) of the Bihar Control of Crimes Act, 1981 (in short the Act) and the consequential orders approving and later affirming the detention. 2. Since in our opinion this writ petition is fit to succeed on a solitary point, namely, delay in disposal of the representation only facts relevant to the point may be stated. 3. The petitioner was detained by the District Magistrate, Samastipur vide order as contained in Annexure 1 on 22.10.2001. The order of detention as well as the grounds thereof was served upon him in jail on 29.10.2001. The detention was approved by the State Government under Section 12(3) of the Act on 31.10.2001 and, later, confirmed under Section 21(1) read with Section 22 of the Act on 13.12.2001. In between, he had made representation against his detention on 11.11.2001. From the affidavits of the respondents it appears that the representation was sent to the Deputy Secretary (Home) Special Department by the jail authorities on the very next day i.e. on 12.11.2001 along with a copy to the District Magistrate who sent his comments by special messenger on 15.11.2001. The Government however took 25 days to dispose of the representation. It may be mentioned out here that from the relevant file of the Department it appears that the rejection of the representation was communicated on 13.12.2001, but necessary order had been passed by the Chief Minister on 10.12.2001 which is to be treated as the date of rejection. 4. Shri Ashok Kumar Choudhary, learned counsel for the petitioner, submitted that there was undue delay in disposal of the representation infringing the petitioners fundamental right under Article 22(5) of the Constitution read with the relevant provisions of the Control of Crimes Act thereby vitiating his continued detention. He pointed out that the delay is sought to be explained by the respondents on the ground that the opinion of the Advisory Board was awaited but the law on the point is settled that the Government is required to take an independent decision in the matter without waiting for the opinion of the Advisory Board. Reliance was placed on Moosa Husein Sanghar V/s. State of Gujarat & Ors., (1993) 1 SCC 511 . 5. Reliance was placed on Moosa Husein Sanghar V/s. State of Gujarat & Ors., (1993) 1 SCC 511 . 5. Shri Amar Nath Singh, learned Standing Counsel No. 8 appearing for the respondents submitted that in terms of Section 19 of the Act, representation of the detenu is required to be placed before the Advisory Board along with the order of detention, the grounds on which the detenu has been detained and the report of the detaining authority. And since in the instant case the Advisory Board was reconstituted only on 6.12.2001 the Government kept the petitioners representation pending. After the Advisory Board was reconstituted the case of the petitioner was referred and on receipt of the opinion of the Board, the representation was rejected on 10.12.2001. We find no substance in the explanation. 6. It is well settled that the representation of the detenu has to be considered by the State Government independently and without waiting for the opinion of the Advisory Board. The provision regarding reference of the detention order to the Advisory Board is like a safety valve intended to protect the rights of the detenu but the State Government has power to revoke the detention at any stage. While opinion of the Advisory Board declining to uphold the detention is binding on the State Government under Section 21(2), where the detention is upheld by the Board, it is still open to the Government to revoke the detention. This is clear from the wrods "may confirm" in Section 21(1) of the Act. In other words, notwithstanding the opinion of the Advisory Board that there was sufficient cause for detention, the Government may revoke the detention order. The District Magistrate exercises delegated power of the State Government and it is for the State Government to approve, confirm or revoke the order. The right of expeditious consideration of the representation is a fundamental right which cannot be scuttled. For these reasons the plea of the respondents that the representation was kept pending awaiting receipt of the opinion of the Advisory Board, cannot be accepted and therefore the impugned order of detention is fit to be quashed on this ground alone. 7. The right of expeditious consideration of the representation is a fundamental right which cannot be scuttled. For these reasons the plea of the respondents that the representation was kept pending awaiting receipt of the opinion of the Advisory Board, cannot be accepted and therefore the impugned order of detention is fit to be quashed on this ground alone. 7. In the result, the order of detention contained in Annexure-1 as well as the consequential orders as contained in Annexures 3 and 6 are quashed and the petitioner is directed to be released forthwith, if not wanted in any other case in accordance with law. 8. Before we part with the case we must express our anguish to find the lackadaisical approach of the State authorities in dealing with detention matters. Though law on the point is well settled the authorities seem to be totally ingorant with the result that the detention in cases like the present one where the petitioner allegedly found involved in 15 cases within a period of 18 months, has to be released.