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2004 DIGILAW 479 (PAT)

Papu Giri @ Pappu Giri v. State Of Bihar

2004-04-27

MRIDULA MISHRA, R.N.PRASAD

body2004
Judgment R.N.Prasad and Mridula Mishra JJ. 1. The petitioner is a citizen of India. He was made accused in criminal cases. The District Magistrate, respondent no. 4, passed an order under section 12(2) of the Bihar Control of Crimes Act, 1981 on 27.6.2003, annexure 1, that the petitioner is an anti social element and habitual offender and it is necessary to detain him to maintain the public order. At present he is in jail custody and trying for bail. With a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained immediately. The order and grounds of detention were sent to Superintendent of Jail for service on the petitioner. The order alongwith the grounds of detention was served on him. The State Government approved the order of detention vide letter dated 3.7.2003, annexure 2. A copy was also sent to the Superintendent, of Jail for service on the detenu, the petitioner, mentioning therein that the detenu is at liberty to file representation against the detention order to Government in Home (Police) Department. The petitioner pursuant to the order, annexure 2, filed representation on 10.7.2003 before the Superintendent of Jail. The said representation was rejected and communicated to him vide letter dated 30th July, 2003, annexure 3. Thereafter, the order of detention was confirmed and he was ordered to be detained till 26.4.2004. However, in words it has been mentioned twenty sixth of June two thousand four. He has challenged the order of detention, annexure 4, on the ground that there was a great delay in disposal of the representation filed by him. 2. A counter affidavit has been filed on behalf of respondent nos. 2 and 3. A separate counter affidavit has been filed on behalf of respondent 4 in which the stand taken in the counter affidavit of respondent nos. 2 and 3 has been adopted. In the counter affidavit it has been stated that the representation of the petitioner dated 10.7.2003 was sent to the State Government by the Superintendent of Jail vide letter dated 14.7.2003 which was received by the State Government on 23.7.2003, but the comment of the District Magistrate on the representation was received earlier in the department on 21.7.2003. The representation of the petitioner was considered and rejected and also communicated to him vide letter dated 30.7.2003. The representation of the petitioner was considered and rejected and also communicated to him vide letter dated 30.7.2003. 3. Learned counsel for the petitioner submitted that the petitioner filed representation on 10.7.2003 has been admitted by the respondents. The representation was sent by the Superintendent of Jail on 14.7.2003 but there is no explanation why there was delay of three days in sending representation. He also pointed out that it has been admitted that it was received by the State Government on 23.7.2003 but there is no explanation as to why it was received after such delay. Learned counsel for the petitioner also pointed that even after receipt there was delay for about seven days but no explanation has been offered by the respondents. Learned counsel for the respondents on the other hand submitted that in fact it was a government machinery and such delay is bound to occur. 4. On consideration of the submissions made by the learned counsel for the parties and the materials available on the record this much is obvious that there is no explanation for three days delay made by the Superintendent of jail in sending the representation to the State Government. Similarly, there is no explanation as to how letter sent on 14.7.2003 was received on 23.7.2003. Similarly, there is no explanation of delay in disposal of representation after receipt of the same. The matter relates to curtailment of fundamental right of a citizen. In a case where right of a citizen is to be curtailed, the government/authority concerned must be vigilant. It appears that in fact there is no explanation for delay in disposal of the representation filed by the petitioner. 5. Thus, on consideration as discussed above, in our view, the order of detention is not legal. Accordingly, the writ petition is allowed. The order, annexure 4 is hereby quashed. Let the petitioner be released forthwith if he is not required in any other case.