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2008 DIGILAW 341 (JHR)

Serajul Sheikh v. State Of Jharkhand

2008-03-19

D.K.SINHA

body2008
JUDGMENT D.K. Sinha, J. 1. The petitioner has invoked the writ jurisdiction of this Court for quashment of the entire proceeding of CCA Case No. 2 of 2007 including the orders passed by the Deputy Commissioner, Pakur dated 7.4.2007, the order of the State Government granting approval of the detention of the petitioner dated 17.4.2007 as also the order dated 10.5.2007 whereby and where-under the Advisory Board confirmed the order of detention of the petitioner under Sections 21(1) and 22 of the Act passed by the Deputy Commissioner, Pakur under Section 12(2) of Bihar (Jharkhand) Control of Crimes Act, 1981 with the consequential relief by recording the order for the release of the petitioner Serajul Sheikh. 2. The petitioner has challenged the orders on the ground that it were violative of Articles 14, 19(1), 21 and 22 of the Constitution of India and Sections 12, 17 and 23 of the Bihar (Jharkhand) Control of Crimes Act. 3. The short fact of the case was that the Deputy Commissioner, Pakur initiated a proceeding bearing C.C.A. Case No. 2 of 2007 against the petitioner on the report of the Superintendent of Police, Pakur under the Bihar (Jharkhand) Control of Crimes Act, 1981 (hereinafter referred to as the Act). The Deputy Commissioner, Pakur on taking note of the recommendation letter No. 754 dated 3.4.2007 of the Superintendent of Police, Pakur, passed order on 7.4.2007 in exercise of jurisdiction under Section 12(2) of the Act by directing the preventive detention of Serajul Sheikh in Central Jail, Dumka. As per the procedure laid down in the Act, the detention order of Deputy Commissioner, Pakur was referred to the State Government for approval and was accordingly approved under Section 12(3) of the Act on 17.4.2007 and the same was served upon the petitioner on 18.4.2007 with the grounds of his detention. 4. The petitioner took the following grounds challenging his detention orders: (i) The order dated 7.4.2007 passed by the Deputy Commissioner in C.C.A. Case No. 2 of 2007 was not served upon him. (ii) The order dated 17.4.2007 of the State Government granting approval under Section 12(3) of the Act of his detention though was served upon him on 18.4.2007 but without furnishing the copies of the relevant papers and the grounds of his detention. (ii) The order dated 17.4.2007 of the State Government granting approval under Section 12(3) of the Act of his detention though was served upon him on 18.4.2007 but without furnishing the copies of the relevant papers and the grounds of his detention. (iii) The petitioner had earlier suffered preventive detention under the orders of the Deputy Commissioner, Pakur in CCA Case No. 1 of 2007 on 6.2.2007 on the basis of the report of the Superintendent of Police, Pakur but the State Government refused to approve his detention under Section 12(3) of the Act and accordingly the matter was dropped. It was contended that the present proceeding being based upon the similar report of the S.P., Pakur his subsequent preventive detention was unsustainable under law. 5. The petitioner has challenged his preventive detention on the following grounds also in view of the arguments advanced by Mr. Rajiv Sharma, learned senior counsel appearing on behalf of the petitioners that: (i) His detention was mala fide and with dishonest intention. (ii) He was deprived of making adequate and effective representation and that his representation was not considered by the State Government and Advisory Board with the application of minds. 6. The respondents appeared and filed their respective counter-affidavits. 7. Initiating his argument Mr. Sharma, learned senior counsel submitted that the Indian Constitution has guaranteed personal liberty to its citizen in Article 21 by speaking that no person shall be deprived of his life of personal liberty except according to procedure established by law. 8. The Bihar Control of Crimes Act, 1981 (Bihar Act, 7 of 1981) was enacted to make special provisions for the control and suppression of anti-social elements with a view to maintenance of public order. 9. Section 12(1) of the Crimes Act enshrines power to make order detaining certain persons which reads as hereunder: (i) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of antisocial elements cannot be prevented otherwise than by the immediate arrest of such person, make an order directing that such anti-social element be detained. (ii) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may by an order in writing direct, that during such period as may be specified in the order, such District Magistrate may also, if satisfied as provided in Sub-section (1) exercise the powers conferred upon by the said sub-section. Provided that the period specified in an order made by the State Government under this sub-section shall not, in the first instance exceed three months, but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time. (iii) When any order is made by District Magistrate, he shall forthwith report, the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government. Provided that where under Section 17 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted. 10. Section 12 provides that the detaining authority must be satisfied that it was expedient to prevent a person in a manner prejudicial to the maintenance of public order with the reasons to be recorded reasonable apprehension that his activities as anti-social elements could not be restricted without his preventive detention. The subjective satisfaction of the detaining authority must not be based on vague, irrelevant, non-existent and misconceived grounds. 11. The subjective satisfaction of the detaining authority must not be based on vague, irrelevant, non-existent and misconceived grounds. 11. Learned senior counsel for the petitioner vehemently and consistently raised the point that the grounds of detention was not served upon the petitioner with the detention order which was the mandatory provision under the Act which speaks: Grounds of order of detention to be disclosed to person affected by the order.— (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. (2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose. 12. Apart from the provision of Section 17 of Bihar (Jharkhand) Control of Crimes Act, 1981, Article 22(5) of the Indian Constitution provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order of detention has been made and shall afford him the earliest opportunity of making a representation against the order. The constitutional imperatives as indicated above are two folds viz. (i) The detaining authority must, as soon as may be that is, as soon as practicable, after the detention, communicate to the detenu the grounds on which the order of detention is made and (ii) The detaining authority must afford the detenu the earliest opportunity of making a representation against his detention. Thus Articles 21 and 22 act as sentinels of personal liberty. 13. Mr. Thus Articles 21 and 22 act as sentinels of personal liberty. 13. Mr. Sharma learned senior counsel exhorted that prior to initiation of the present proceeding in CCA Case No. 2 of 2007 against the petitioner an earlier similar nature of proceeding in CCA No. 1 of 2007 was initiated against the petitioner for his detention by order dated 6.2.2007 passed by the District Magistrate, Pakur in the similar exercise of the power conferred under Section 12(2) of the Act on the basis of the report of the Superintendent of Police, Pakur dated 7.12.2006 but the State Government refused to grant approval of the preventive detention of the petitioner under Section 12(3) of the Act. According to the learned senior counsel, the number and nature of the cases referred in both the reports of the Superintendent of Police, Pakur giving rise to distinct proceedings were common as both contained eleven police cases and one criminal proceeding against the petitioner and the cases referred in both the proceedings were annexed with the writ petition for comparison. 14. Mr. Sharma pointed out that the subsequent detention of the petitioner on similar set of materials was an illegal exercise of jurisdiction in the backdrop as well, that the State Government refused to sanction the preventive detention of the petitioner in CCA Case No. 1 of 2007 as was required under Section 12(3) of the Act. Section 23 of the Bihar (Jharkhand) Control of Crimes Act, 1981 provides ways and means for recording subsequent order of detention on the facts as may warrant the making of such an order which came into being after the date of rejection or expiry of an earlier order. The making of subsequent order of detention on the same facts was deprecated and it was held by the Apex Court that a fresh order of detention can only be made upon fresh facts which came to light after passing of the previous order. 15. In support of the allegation of mala fide in the preventive detention of the petitioner, the learned senior counsel submitted that the petitioner was languishing in judicial custody since 4.9.2006 and during his incarceration six police cases were lodged against him whereas out of them 5 cases were lodged on 7.9.2006 and 8.9.2006, successively. No specific overtact was attributed against the petitioner in these six cases in which allegations were of committing theft/lifting of vehicles. No specific overtact was attributed against the petitioner in these six cases in which allegations were of committing theft/lifting of vehicles. It was the mala fide intention of the authority so as to show the volume of cases against him with the intention to deprive him from his personal liberty. In most of the cases, the petitioner was not named specially in Pakur (T) P.S. Case No. 197 of 2006 and 198 of 2006 in respect of which the S.P., Pakur presented false report that the petitioner was named accused and in that manner the Superintendent of Police misguided the detaining authority and the latter also without application of his mind and prudence recorded the order of preventive detention of the petitioner which is liable to be quashed. The petitioner was even denied the earliest opportunity of making adequate and effective representation under Clause 5(5) of Article 22 of the Constitution of India. The respondents did not supply the copies of eleven FIRs, and connected papers relating to proceeding bearing PCR No. 262 of 2002 so that he could be able to make effective representation before the appropriate Government. 16. Mr. Sharma attracted the attention by submitting that the impugned orders passed by the State Government under Section 12(3) of the Act confirming the preventive detention of the petitioner and the opinion expressed by the Advisory Board did not mention or whisper a word that the representation of the petitioner was considered and then orders were passed except, that the written statement filed by the petitioner was rejected on considering the materials on record and that such rejection order was not annexed with the counter-affidavit. 17. Finally, Mr. Sharma made the following submissions that the District Magistrate, Paku passed the impugned order of preventive detention of the petitioner without applying his mind except on the report placed before him by the Superintendent of Police, Pakur. Nowhere in the entire detention order the respondent-District Magistrate averred that he had considered the relevant documents and materials including the contents of allegation against the petitioner in all the eleven FIRs so as to arrive at an independent conclusion by application of mind. On the other hand, the District Magistrate, Pakur grossly erred by not appreciating the fact before he passed the impugned order. As a matter of fact before drawing the detention order, relevant documents and papers were not placed before him. On the other hand, the District Magistrate, Pakur grossly erred by not appreciating the fact before he passed the impugned order. As a matter of fact before drawing the detention order, relevant documents and papers were not placed before him. It was held by the Apex Court in a decision reported in AIR 1990 SC 1272 that the detention order must satisfy the entire materials forming the grounds of detention. In view of the above facts and circumstances, the learned senior counsel submitted that the impugned detention order was violative of Articles 14, 19, 21 and 22(5) of the Indian Constitution, which was liable to be set aside and the petitioner be set at liberty who was entitled to monetary compensation. 18. Mr. Siddharth Ranjan, JC to GP-II with reference to the counter-affidavit filed on behalf of the Deputy Commissioner, Pakur submitted that the detention order was passed after scrutinizing all the aspects of the criminal cases pending against the petitioner on the report of the Superintendent of Police, Pakur. The Deputy Commissioner found a series of cases pending against him and with the application of individual attention on each police case he came to the conclusion that the petitioner was indulged in all the criminal cases directly or indirectly and so he was required to be prevented by way of his detention. No notice was required to be given to the petitioner before an order of detention could be passed and the grounds of such detention was to be communicated preceded by his detention order duly confirmed by the State Government as per the Section 12(3) of the Act. 19. Mr. Ranjan, learned Counsel for the State Government made the following submissions that the petitioner refused to accept the grounds of detention which was served with the preventive detention order dated 7.4.2007 as reported by the Jail Superintendent, Pakur. In some of the criminal cases the petitioner was already named in the FIR but during investigation the name of the petitioner appeared to the Investigating Officer about his complicity therein and therefore he was remanded in other cases also in which he was not named. As a matter of fact, the petitioner was terror in the locality that several case of lifting vehicles from the highway and extortions were registered against him. As a matter of fact, the petitioner was terror in the locality that several case of lifting vehicles from the highway and extortions were registered against him. His involvement in series of cases was sufficient to show that he was an anti-social elements being an habitual offender and that his release would adversely affect, in the opinion of the Deputy Commissioner, public order and peace. 20. Learned Counsel for the State submitted that in prosecution of CCA No. 1 of 2007 the detention of the petitioner by order dated 6.2.2007 passed by the District Magistrate, Pakur (D.C.) could not reach the State Government for approval within time stipulated and hence it was refused since barred by limitation. The subsequent preventive detention order of the petitioner dated 7.4.2007 was approved by the State Government under Section 12(3) of the Act as also by the Advisory Board consisting of a sitting High Court Judge and two other members. It was found by the Advisory Board that there were sufficient cause for the detention of the petitioner. 21. Learned Counsel for the State attracted the attention that the affidavit filed on behalf of the Department of Home depicted that the petitioner was hardened criminal whose activities terrorized the area and that he was menace to public order and peace. The petitioner made his representation on 25.4.2007 which was forwarded by the Jail Superintendent on 27.4.2007 and the Home Department after considering the materials on the record and the representation petition of the petitioner, rejected the same. The detention of the petitioner did not violate in any manner Section 23 of the Act in view of the fact that CCA Case No. 1 of 2007 dated 6.2.2007 was not revoked by the State Government rather it was not approved since barred by limitation. Similarly, petitioners right of representation at no point of time was violated as he was served the copy of the grounds of his detention at the first point in time but according to the report of the Jail Superintendent he refused to accept with mala fide intention to make out a ground no plea was taken before the Advisory Board that the copies of the FIR were not supplied to him with the grounds of detention. 22. Learned Counsel exhorted that no prejudice was caused to the petitioner as he was physically produced and heard by the Board. 22. Learned Counsel exhorted that no prejudice was caused to the petitioner as he was physically produced and heard by the Board. It was not a fact that the petitioner was lodged in a Jail under preventive detention and then six criminal cases where imposed against him. As a matter of fact, the preventive detention order was passed by the District Magistrate, Pakur during the detention of the petitioner in custody. 23. Even no case of mala fide and dishonest intention was made out and there was no impediment to file a case when the petitioner was in judicial custody as his name appeared during the investigation of the case. Similarly, non- application of mind on the part of the detaining authority could not be attributed. Subsisting custody of the detenu by itself did not invalidate an order of his preventive detention which depends upon the facts and circumstances of the case and the detaining authority had subjective satisfaction before the preventive order was passed on the basis of materials that the personal liberty of the petitioner in view of the antecedent and activities which were in near proximity of the time were likely to imperil and endanger the lives of people of the locality and their properties so as to prevent him from indulging in prejudicial activities. The petitioner failed to show any ground that his detention in custody by preventive orders was violative of Articles 14, 19, 21 and 22(5) of the Indian Constitution so as to set him at liberty. This writ petition is therefore liable to be dismissed. 24. Having regard to the facts and circumstances of the case, appreciation of the argument advanced on behalf of the parties, I find that the questions as formulated and raised by the petitioner have been met out in the answers of the State counsel. 25. The main thrust of the petitioner was that the grounds of detention were not served upon him with the notice of preventive detention though he was already in judicial custody, his detention order was mala fide brought about with dishonest intention and that he was deprived of making adequate and effective representation and that his representation was neither considered by the State Government in the Home Department nor by the Advisory Board. 26. 26. In the counter-affidavit filed on behalf of the respondent-Deputy Commissioner, it was categorically explained that a series of criminal cases were pending against the petitioner much before promulgation of the preventive order and he with sincere attention on each police case came to conclusion that the petitioner was directly and indirectly involved in number of cases affecting the lives and property of the people of locality so he was required to be detained and prevented in exercise of jurisdiction vested to him under Section 12(2) of the Bihar (Jharkhand) Control of Crimes Act, 1981 and for that no preliminary notice was required to be given to the detenu before the detention order. I do not find any illegality therein the order which speaks a lot and I am satisfied that the order does not depict any mala fide against the petitioner. It was consistently argued on behalf of the petitioner that only a month prior to the present case the District Magistrate, Pakur had initiated CCA Case No. 1 of 2007 on 6.2.2007 by recording preventive detention of the petitioner by similar exercise of jurisdiction under Section 12(2) of the Act on the report of the Superintendent of Police, Pakur but the State refused to grant approval under Section 12(3) of the Act. I find that as a matter of fact, CCA Case No. 1 of 2007 was revoked not on merit but in view of barred by limitation since the orders could not be forwarded within the period of limitation. Petitioners right of representation, in my view, at no point of time was infringed as he was served with the copies of the grounds of his detention at the first point in time but, according to the report of the Jail Superintendent, he refused to accept, though he received the same at the later stage and the arguments for the respondents that such ground was not taken before the Advisory Board when he was physically produced, could not be controverted on behalf of the petitioner. 27. The consistent submission made on behalf of the petitioner was that during his detention in judicial custody he was implicated in six more criminal cases by the police, though not named in any of such cases and for that he was highly prejudiced. 27. The consistent submission made on behalf of the petitioner was that during his detention in judicial custody he was implicated in six more criminal cases by the police, though not named in any of such cases and for that he was highly prejudiced. The State counsel convincingly explained that admittedly the petitioner was not named in those six criminal cases but in course of investigation his active participation in those cases as accomplice reflected and hence there was no illegality, it was not the case that six fresh criminal cases were instituted against him after recording of the order of his preventive detention. 28. I find substance in the argument that subsisting custody of detenu by itself did not invalidate an order of his preventive detention which depends upon the facts and circumstances of the case and the discretion of the detaining authority to his subjective satisfaction upon the materials produced before him before passing the preventive order. I further find substance in view of the extensive arguments on behalf of the parties and on its appreciation that the preventive order was passed against the petitioner to prevent the petitioner who was likely to imperil, in the opinion of the authority, and endanger lives of the people and their properties so as to prevent him from indulging in prejudicial activities. 29. Now the facts remains as to whether the preventive detention order passed by the District Magistrate, Pakur against the petitioner was violative of Articles 14, 19, 21 and 22(5) of the Indian Constitution. The essence of Article 14 is equality before the law or the equal protection of law within the territory of India viz. amongst equals, the law should be equal and should be equally administered and that like should be treated alike. The petitioner failed to prove as to under what manner he was discriminated and denied the equal protection of laws. Similarly, Article 19 envisaged certain rights regarding freedom of speech, to assemble peacefully without arms, to form association, to move freely throughout the territory of India and settled there and to practice any profession or to carry on any occupation, trade or business. Similarly, Article 19 envisaged certain rights regarding freedom of speech, to assemble peacefully without arms, to form association, to move freely throughout the territory of India and settled there and to practice any profession or to carry on any occupation, trade or business. In that manner the Indian Constitution guarantees to the citizens of India the above fundamental freedoms but in my view none of the aforesaid freedom of the petitioner has been curtailed except according to the procedure established under Bihar (Jharkhand) Control of Crimes Act, 1981 which is the essence of Article 21 also. It was decided by the Apex Court in A.K. Gopalans case reported in AIR 1950 SC 27 , that there must be a law justifying interference with the persons life or personal liberty and secondly, the law should be a valid law and thirdly, the procedure laid down by the law should have been strictly followed. If similar order is passed in absence of any procedure established by law, sustaining the deprivation of personal liberty, shall act in violation of Article 21 if it interferes with the life or personal liberty of the Individual. That golden rule as propounded by the Apex Court herein above still holds good and I do not find that the respondent-District Magistrate, Pakur in any manner infringed the basic principle and tenets of the essence of Article 21. 30. Similarly, I find that the grounds of detention were served upon the petitioner at the appropriate time as reported by the Jail Superintendent, though, at the first instance, he refused to accept for the reasons best known to him but the serving of notice with the explaining the contents of the grounds to the petitioner by the Jail Superintendent convincingly speaks affording the petitioner an earliest opportunity of making his representation against the order. In that manner also I do not find violation of Article 22(5) of the Indian Constitution. 31. To sum up, I find and observe that the learned Counsel for the petitioner failed to show any ground so as to call for interference under Article 226 of the Constitution of India in the preventive order passed by the District Magistrate, Pakur on 7.4.2007 against the petitioner in CCA Case No. 2 of 2007. 32. There being no merit, this petition is dismissed.