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2007 DIGILAW 173 (PAT)

Chun Chun Singh v. State Of Bihar

2007-01-24

J.N.SINGH, NARAYAN ROY

body2007
Judgment 1. Heard Mr. Laxmi Narayn Das, learned counsel for the petitioner, and Mr. Sanjay Kumar, learned Government Pleader No. 14, for the respondents and considered the counter affidavits filed on behalf of the respondents. 2. The order passed by the District Magistrate in exercise of power under Section 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as "Act") is under challenge. 3. Mr. Laxmi Narayan Das, learned counsel for the petitioner, submitted that owing to the nature of offence committed by the petitioner, it cannot be said to be a case of public order, rather it is a case of law and order. It is further submitted that the petitioner does not appear to be a habitual offender nor he was found in acting in any manner prejudicial to maintenance of public order. Besides this, learned counsel for the petitioner also submitted that there was inordinate delay in disposal of the representation filed by the petitioner from jail dated 30th March, 2006, and, in that view of the matter, the order of detention and the order confirmed by the Department of Home (Police) Government of Bihar, are not sustainable in law. 4. From the counter affidavit filed on behalf of the Department of Home (Police), Bihar, it appears that the representation filed by the petitioner dated 30th March, 2006 was received in the Department on 31st March, 2006. Thereafter comment of the District Magistrate was asked for, which was received on 7.4.2006 and the same was processed in the Department and it was approved by the Secretary, Department of Home (Police). Government of Bihar, on 8.4.2006 and the matter was, ultimately, placed before the Chief Minister, and, thus, his representation was rejected on 14.6.2006. 5. From the counter affidavit, per se, it further appears that the delay from 8.4.2006 to 14.6.2006, however, has not satisfactorily been explained. It also appears that the matter remained pending in the Home (Police) Department for three days and thereafter it was sent to the District Magistrate for comment vide letter No. 3724 dated 3.4.2006 and no satisfactory explanation has been given for this delay as well. 6. The representation filed by the detenu is required to be disposed of with all promptitude, as required under Sec.17 of the Act. 6. The representation filed by the detenu is required to be disposed of with all promptitude, as required under Sec.17 of the Act. Each delay has also to be explained, in case certain delay was caused in disposal of the representation filed by the detenu. 7. In the case in hand, we do not find any satisfactory explanation for delay in disposal of the representation of the petitioner. Unexplained delay goes to the root of the case and on that ground as well, the order of detention vitiates. 8. Reference in this connection may be made to the case of Rajamal vs. Tamil Nadu and another [(1999) 1 Supreme Court Cases, 417] and a Bench decision of this Court in case of Mahendra Singh vs. State of Bihar and others [2006 (1) Bihar Criminal Cases Reporter, 236]. The Apex Court in case of Rajamai (supra) held that even a delay of five days was enough to vitiate the order of detention. 9. In the instant case, unexplained delay of three days at the first instance and again eight days in second instance by the Department of Home (Police), in our opinion, would be sufficient ground to hold the order of detention bad in law. 10. It is true that the order of detention has been confirmed by the Advisory Board and approved by the State Government in exercise of power under Sections 19 and 21 of the Act, but still then we find the activity of the detenu disturbing the law and order and not the public order. 11. The order of detention, in this view of the matter, is held to be per se invalid and bad in law. 12. Accordingly, this application is allowed, the impugned order of detention is set aside and the petitioner is directed to be set at liberty forthwith, if he is not required in any other case.