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2003 DIGILAW 1099 (PAT)

Sheo Dani Patel v. State of Bihar

2003-10-21

B.N.P.SINGH, S.N.JHA

body2003
JUDGMENT S.N. JHA & B.N.P. SINGH, JJ. The petitioner has been detained in preventive custody by the District Magistrate, Bhagalpur vide order dated 30.4.2003 under Section 12 (2) of the Bihar Control of Crimes Act, 1981. The detention was approved by the State Government under Section 12 (3) of the Act and later confirmed by it under Section 21 read with Section 22 of the Act. The petitioner seeks quashing of the said orders and his release from detention. 2. The facts relevant for disposal of the writ petition in the context of the submissions made at the bar are as follows. On service of the grounds of detention along with detention order on or about 30.4.2003 the petitioner made a representation on 12.5.2003 which was received in the Department i.e. Home (Police) Department on 14.5.2003. The comments of the District Magistrate was received on 15.5.2003. On 19.5.2003 the representation was rejected. 3. It was firstly submitted that representation was not sent to Advisory Board violating provisions of Section 19 of the Act which provides that in every case where detention order has been made under the Act the Government shall within three weeks of the date of detention of a person place before the Advisory Board the grounds on which the orders has been made along with the representation, if any, made by the detenu. It was submitted that making representation is a valuable right guaranteed to the detenu not only by the Act but also by the Constitution under Article 22, and where the detention is upheld by the Advisory Board without making available the grounds on which the detention is assailed by the detenu, he is deprived of that valuable right making the detention illegal. It was pointed out where the detention is not approved by the Advisory Board the Government has no option but to revoke the detention order. Reliance was placed on a Full Bench decision of this Court in Raj Kumar Gupta Vs. State of Bihar, 1990 (1) PLJR 69 : AIR 1990 Pat 32 : 1990 BBCJ 1 : 1990 (1) BLJ 314 : 1989 (2) BLJR 509 and a decision of the Supreme Court in A.C. Razia Vs. Govt. of Kerala (2003) 6 SCC 40 . 4. The submission of the Counsel as a general proposition is no doubt well founded. State of Bihar, 1990 (1) PLJR 69 : AIR 1990 Pat 32 : 1990 BBCJ 1 : 1990 (1) BLJ 314 : 1989 (2) BLJR 509 and a decision of the Supreme Court in A.C. Razia Vs. Govt. of Kerala (2003) 6 SCC 40 . 4. The submission of the Counsel as a general proposition is no doubt well founded. As a matter of fact, the decision cited on behalf of the State, namely, K.M. Abdulla Kunhi & anr. Vs. Union of India, AIR 1991 SC 574 = (1991) 1 SCC 476 also more or less takes the same view. While considering the effect of delay in disposal of representation on account of pendency of the reference before the Advisory Board, therein the Court observed the representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings." In the light of the law laid down by the Supreme Court it is to be considered as to whether non-forwarding of the representation to the Advisory Board about which there is no dispute at the bar, in the facts of the case, vitiates the petitioner's detention. 5. It may be stated at this stage that in course of hearing a doubt arose as to whether the case of the petitioner was considered by the Advisory Board on 15.5.2003 or on 29.5.2003, the date on which the minutes of the proceedings of the Advisory Board were signed by its members. In order to resolve the dispute we sent for the relevant records from the office. An affidavit sworn by Dy. Secretary, Home (Police) Department was also filed on behalf of the respondents. From perusal of the said records and affidavit, we are satisfied that the petitioner's case was considered by the Advisory Board on 15.5.2002. 6. In order to resolve the dispute we sent for the relevant records from the office. An affidavit sworn by Dy. Secretary, Home (Police) Department was also filed on behalf of the respondents. From perusal of the said records and affidavit, we are satisfied that the petitioner's case was considered by the Advisory Board on 15.5.2002. 6. Counsel for the petitioner submitted that the petitioner's representation was forwarded by the Jail authorities on 13.5.2003 and received in the Department on the next day i.e. 14.5.2003 and there was no difficulty in sending the same to the Advisory Board. The submission at the first instance would appear to be attractive but cannot be accepted in view of the fact that the relevant papers relating to petitioner's detention had already been sent to the Advisory Board on 12.5.2003. It is true that the representation was received in the Department a day prior to scheduled date of hearing before the Advisory Board but from the calendar it appears that 14.5.2003 was closed on account of Fateha Dwaz Dahum. It was submitted that from the calendar itself it will appear that holiday on 14.5.2003 was dependent on visibility of moon and there is nothing on the record to show that 14.5.2003 remained holiday or depending on the visibility of the moon, the holiday was proponed or postponed. It is not necessary to probe this aspect of the case. Even assuming that 14.5.2003 was not closed, as indicated above, necessary papers relating to the petitioner's detention had been sent to the Advisory Board on 12.5.2003 itself. The grounds of detention was served on the petitioner on 30.4.2003 but the took 12 days to file representation. On the very next day it was sent by the Jail authorities. Section 19 provides for a time frame and the Government was obliged to adhere to it. In these facts merely because the representation was not sent to the Advisory Board the detention of the petitioner cannot be said to be illegal. 7. Counsel then submitted that the detention of the petitioner is based on wrong consideration and extraneous materials. The acts, forming the grounds of detention pertain to realm of law and order and not public order and therefore the petitioner cannot be detained for committing those acts under the Act. In this regard reliance was placed on Mehboob Khan Nawab Khan Pathan & ors. Vs. Police Commr. The acts, forming the grounds of detention pertain to realm of law and order and not public order and therefore the petitioner cannot be detained for committing those acts under the Act. In this regard reliance was placed on Mehboob Khan Nawab Khan Pathan & ors. Vs. Police Commr. Ahmedabad and anr. AIR 1989 SC 1803 and Ayya alias Ayub Vs. State of U.P. (1989) 1 SCC 374 . 8. From perusal of the Grounds it appears that the petitioner has been detained on account of his involvement in five cases under Sections 302, 307, 386 etc. of the Indian Penal Code and Section 27 of the Arms Act. He is alleged to have forcibly taken money from victims on show of fire arms, demanded Rangdari, attacked the victims, dragged the victims from vehicle and then assaulted. In one case the victim was killed. Most of the crimes were committed in broad daylight and in public view. In the circumstances, it cannot be said that the acts remained in the realm of law and order so as to make the Act inapplicable. It is well settled that where the act committed by a person is likely to disturb the even flow of life, the case would fall within the realm of public order and for committing those acts the person can be detained in preventive custody. What is important is the impact of the act on the public at large. Having regard to the acts committed by him, the detention cannot be said to be arbitrary. It is to be kept in mind that the detention depends on the subjective satisfaction of the detaining authority and it is not open to this Court in writ jurisdiction to sit as Court of appeal over such subjective satisfaction nor it is open to the Court to weigh the quantum of materials to come to a different conclusion. 9. In the above premises, both the contentions of the counsel having been rejected this writ petition must fail and the same is accordingly dismissed.