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2007 DIGILAW 1500 (PAT)

Birendra Yadav v. State Of Bihar

2007-09-13

SHIVA KIRTI SINGH, SYED MD.MAHFOOZ ALAM

body2007
Judgment Shiva Kirti Singh and Syed Md.Mahfooz Alam JJ. 1. Heard learned counsel for the petitioner and learned counsel for the State. 2. The petitioner has preferred this writ petition seeking issuance of a writ in the nature of Habeas Corpus and quashing of order of preventive detention passed by the District Magistrate, Samastipur on 12.2.2007 (Annexure-2), under Sec. 12(2) of the Bihar Control of Crimes Act, 1981. 3. Several grounds were urged on behalf of the petitioner including a ground that a perusal of Annexure-2 series would show that one Dy. S.P. who has lodged the case against the petitioner has initiated the proposal for his preventive detention and only that has been recommended by the Superintendent of Police, Samastipur and forwarded to the District Magistrate. Samastipur. Another ground urged on behalf of petitioner is that four cases and one Sanha entry shown as grounds for preventive detention in Annexure-2 series do not show that any of the grounds related to public order rather the cases at best related to ordinary law and order problem. It was further submitted that the petitioners representation dated 21.2.2007 contains substantial grounds including a ground that on account of litigation and dispute with the local M.L.A., Shri Sunil Kumar Pushpam who has also filed a case against the petitioner in the month of October 2005 which has been shown as ground number-1, the Dy. Superintendent of Police, Mr. Niraj Kumar Singh has also implicated the petitioner in a case which is mentioned as ground number two and has taken the initiative by recommending for his preventive detention to the Superintendent of Police, Samastipur but such materials in his representation have not been properly considered by the State Government and his representation was rejected on 3.3.2007 without showing any application of mind to the grounds raised by the petitioner and without disclosing any reason for rejection. It was also submitted that there is no good explanation for delay of about 12 days in disposal of the representation when admittedly representation was disposed of by the Government in absence of any comments from the District Magistrate which had been shout for. It was also submitted that there is no good explanation for delay of about 12 days in disposal of the representation when admittedly representation was disposed of by the Government in absence of any comments from the District Magistrate which had been shout for. Lastly, it was submitted that the grounds of preventive detention and representation of the petitioner was required to be placed before the Advisory Board within 3 weeks as required by Sec. 19 of the Crime Control Act, 1981 and that was not done within three weeks. 4. On going through the counter-affidavits filed on behalf of the State as well as on behalf of the District Magistrate, respondent no. 2 we find that the State has demonstrated that requirements of Sec. 19 was complied with and the matter relating to the petitioner was placed before the Advisory Board through a letter dated 27.2.2007 and the Advisory Board heard the matter on 23.3.2007 and its opinion was received by the Government on 30.3.2007 within seven weeks of detention of the petitioner pursuant to the impugned order of preventive detention. It appears that the requirements of Sections 19 and 20 of the aforesaid Act have been complied with. 5. The next important submission on behalf of petitioner requiring consideration is that the cases mentioned as grounds for preventive detention are apparently by an inimical M.L.A. and at least two other cases shown as grounds are by police officials. The 5th ground is merely a Sanha by Officer-in-Charge of Mithan Police Station and the only other ground is a case under Sec. 307 I.P.C. and 27 of the Arms Act in which petitioner was subsequently remanded on the basis of his implication during investigation. 6. On a careful perusal of materials relating to the cases shown as grounds for preventive detention of the petitioner, we find that apparently the petitioner is having enmity and litigation with M.L.A. Sunil Kumar Pushpam and thereafter he has been made accused in at least two cases lodged by police officials only and the 5th ground is not a police case but merely a Sanha by the police official. None of the cases mentioned as grounds for preventive detention are of nature which could be said to have caused disturbance to public order and apparently no member of the public has lodged any serious criminal case against the petitioner in the recent past. None of the cases mentioned as grounds for preventive detention are of nature which could be said to have caused disturbance to public order and apparently no member of the public has lodged any serious criminal case against the petitioner in the recent past. The case under Sec. 307 I.P.C. and 27 of the Arms Act is clearly in respect of an occurrence which could show law and order problem but not a problem of public order. Further in that case also the name of the petitioner has surfaced during investigation by the police. 7. In view of aforesaid discussions and findings we do not feel the necessity of examining the other grounds raised on behalf of petitioner. Apparently petitioner has been taken under preventive custody on the basis of grounds which are inadequate and insufficient in the eyes of law for his preventive detention under the provisions of the Bihar Control of Crimes Act, 1981 because the grounds do not show that petitioners activity is a threat to public order. In that view of the matter the writ petition is allowed. The impugned order no. 358 dated 12.2.2007 of preventive detention passed by District Magistrate, Samastipur is quashed. The petitioner should be released forthwith from his preventive custody in Sub-Jail, Rosera or any other jail to which he may have been transferred presently, if not required in any other case. Before parting with the order we deem it necessary to indicate that the District Magistrate, Samastipur should be more careful in such matters and apply his mind to the grounds more objectively before coming to a conclusion for preventive detention.