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2003 DIGILAW 226 (PAT)

Sanjay Pandey v. State Of Bihar

2003-02-25

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha and P.N.Yadav JJ. 1. The petitioner is aggrieved by his detention under the Bihar Control of Crimes Act, 1981. He has been detained by the District Magistrate, Gopalganj vide memo no. 88C/C/ Vidhi dated 19.3.2002. The relevant facts are as follows. 2. The impugned order of detention along with the grounds was served on the petitioner while he was in jail on 21.3.2002. On 26.3.2002 the order was approved by the State Government under Section 12(3) of the Act which was communicated to the petitioner on the next day i.e. 27.3.2002. The petitioner submitted his representation on 5.4.2002. The representation was received in the. Department on 9.4.2002. On 11.4.2002 the comments of the detaining authority was called for. The District Magistrate sent his comments on 23.4.2002 which was received in the department on 26.4.2002. The representation was rejected by the Government on 6.5.2002. 3. Shri Ajay Kumar Tripathy, learned Counsel for the petitioner, made a short submission. He submitted that the detenu has a right-statutory as well as constitutional - to have his representation considered and decided without any delay, but in the instant case it would appear from the chronology of events that the Government took 32 days to decide the representation. 4. Shri Amar Nath Singh, learned Standing Counsel, stated that after the representation was received in the Department the usual practice is to seek the comments of the Detaining Authority and no sooner the comments were received the representation was considered and in the facts and circumstances rejected. 5. From the counter affidavit and the records of the Department it appears that after receipt of the comments of the District Magistrate the matter was put up for consideration for the first time on 2.5.2002. It was on that day that the Under Secretary, the Deputy Secretary and the Special Secretary considered the matter and put their notes on which the Chief Minister, being the Minister Incharge, passed order on 6.5.2002. There is thus no explanation of the period between 26.4.2002, when the comments of the District Magistrate was received, and 2.5.2002, when it was dealt with by the Department. Indeed, there is also no explanation for the period between 11.4.2002 and 23.4.2002. It may be customary to call for the comments but then the detaining authority should have shown more awareness. 6. Indeed, there is also no explanation for the period between 11.4.2002 and 23.4.2002. It may be customary to call for the comments but then the detaining authority should have shown more awareness. 6. It has been held by the Supreme Court that what is conclusive is not the period of delay but the explanation offered for the delay. In other words, while a longer delay may be condoned if a proper explanation is furnished, a shorter delay may not be condoned in the absence of explanation. In the facts and circumstances, as briefly indicated, we are satisfied that there was inordinate delay in disposal of the representation and therefore on this solitary ground the impugned detention is fit to be set aside. 7. In the result, the writ, petition is allowed, the order of detention dated 19.3.2002 and the consequential orders referred to above are quashed. The petitioner is directed to be set free if not wanted in any other case, in accordance with law.