Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1798 (PAT)

Krishna Das @ Krishna Giri v. State Of Bihar

2007-11-22

GHANSHYAM PRASAD, SHYAM KISHORE SHARMA

body2007
Judgment 1. This writ application has been filed for issuance of appropriate writ by way of Habeas Corpus seeking release of the petitioner from detention after setting aside the order dated 7.7.2007 (annexure-1) issued by the District Magistrate, East Champaran, Motihari under Sec. 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter to be referred to as the Act) as well as its confirmation order dated 30.8.2007 (annexure-3) issued under the signature of Deputy Secretary, Govt. of Bihar. 2. The facts giving rise to this writ application are that while the petitioner was in jail custody, the above impugned order (annexure-1) along with grounds of detention was served upon him detaining him under Sec. 12(2) of the Act for a period of twelve months i.e. till 7.7.2008 with an option to file a representation, if any, to the Deputy Secretary, Home (Police) Dept., Govt. of Bihar through the Superintendent of Jail, Motihari. The said order was approved by the Government under the signature of Deputy Secretary, Govt. of Bihar through Memo No. 7148 dated 14.7.2007 (annexure-2), a copy of the said memo was served upon the detenu with option to file a representation against his detention. The detenu filed his representation on 18.7.2007 through Superintendent of Police, East Champaran, Motihari which was rejected by the Government and the same was communicated to the detenu through Memo No. 8147 dated 14.8.2007 (annexure-4). Ultimately, the matter was placed before the Advisory Board and on receipt of its recommendation the Govt. of Bihar Confirmed the detention order Vide A-3. 3. Learned Counsel for the petitioner, Mr. Ajay Kumar Thakur, has assailed the impugned orders mainly on two grounds. The first submission is that there is no proximity between the order of detention and the prejudicial act committed by the petitioner. According to the grounds of detention (annexure-1), the last prejudicial act is said to be committed by the detenu on 27.10.2005 whereas order of detention was passed on 7.7.2007 by the District Magistrate, Motihari. It has further been submitted that the authority concerned has no power to detain the petitioner under Sec. 12(2) of the Act on stale material. In support of his submission, reliance has been placed on a decision of this Court passed in Cr.W.J.C.No. 98 of 2005 (Roshan Singh V/s. The State of Bihar and Ors.). 4. It has further been submitted that the authority concerned has no power to detain the petitioner under Sec. 12(2) of the Act on stale material. In support of his submission, reliance has been placed on a decision of this Court passed in Cr.W.J.C.No. 98 of 2005 (Roshan Singh V/s. The State of Bihar and Ors.). 4. Second submission of the learned Counsel for the detenu is that the constitutional safeguard as enshrined under Article 22(5) of the Constitution of India has been violated in this case. The detenu was not given opportunity to make representation against the order of detention before the detaining authority i.e. the District Magistrate, Motihari which vitiates the order of detention of the petitioner. For this submission, learned Counsel for the detenu has relied upon a decision of this Court reported in 2007(4) B.B.C.J. (Binod Yadav V/s. The State of Bihar and Ors.). 5. A counter affidavit has been filed on behalf of the State. Learned Counsel for the State, Mr. Lalit Kishore, AAG III, submits that the order of detention of the petitioner mainly on the ground that the detenu is a veteran criminal and also terror in the locality. He is also involved in a large number of serious nature of cases. As such, the release of the petitioner would disturb the peace and tranquility of the locality. However, he has not been able to counter the legal points raised by the learned Counsel for the detenu. 6. Annexure-1 contains grounds for detention of the petitioner. The grounds of detention mention involvement of the detenu in as many as 8 cases. The last prejudicial act committed by the detenu has been mentioned in item No. 3 of the additional list of cases. It is dated 27.10.2005. There is nothing on the record to show that after 27.10.2005 the petitioner has committed any prejudicial act threatening the public order and tranquility. Thus apparently the materials mentioned in annexure-1 as grounds of detention are stale materials and have no proximity with the order of detention and hence the detention of the detenu is bad and illegal. 7. Learned Counsel for the detenu has rightly relied upon the decision of Roshan Singh (supra). Thus apparently the materials mentioned in annexure-1 as grounds of detention are stale materials and have no proximity with the order of detention and hence the detention of the detenu is bad and illegal. 7. Learned Counsel for the detenu has rightly relied upon the decision of Roshan Singh (supra). In that case, the court after placing reliance on several decisions of the Apex Court has held as follows: Admittedly, in any case the gap between the order passed and the alleged prejudicial activity is of more than nine months and for which no logical explanation has been putforth. Thus, the order of detention is not for the crime committed in near past and the period between the prejudicial activity of the detenu and the detention order is ex facie wrong. The order of detention is, accordingly, quashed and the petitioner is set at liberty. 8. Other submission of the learned Counsel for the detenu has also got merit. Annexure-1, order of detention issued by the District Magistrate, Motihari, would go to show that the opportunity has been given to the detenu to represent against his detention but before the Deputy Secretary, Home (Police) Dept., Govt. of Bihar and not before the detaining authority i.e. the District Magistrate, Motihari. In the above case of Binod Yadav (supra), similar was the position. The court after consideration of several decisions of the Apex Court ultimately in paragraph 13 of the judgment held as follows: Thus, on an in depth consideration of judgments of the Supreme court in the case of Kamleshkumar Ishwardas Patel, A.C. Razia and S.S. Acharya and an unreported judgment of this Court dated 20.4.2004 passed in Cr.W.J.C.No. 287 of 2003 (Raja Singh @ Rajwa V/s. The State of Bihar and Ors.), a copy whereof was placed before us on behalf of the petitioner, we find substance in the submission advanced on behalf of the petitioner that under the safeguards available to a detenu by virtue of Article 22(5) of the Constitution of India, the petitioner-detenu was entitled to be apprised of his right to file a representation against the order of detention before the District Magistrate who had passed the order under Sec. 12(2) of the Act so that the detenu could effectively exercise his right of filing a representation at the earliest. That was clearly not done in this case. That was clearly not done in this case. Hence, the preventive detention of the petitioner is found to be illegal. 9. Thus, for the reasons stated above, we are of the opinion that the detention of the petitioner is not sustainable in the eye of law. Accordingly, this writ application is allowed and the impugned orders are hereby set aside. The petitioner-detenu is directed to be set at liberty forthwith, if not wanted in any other case.