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2011 DIGILAW 1665 (PAT)

Ashok Kumar Singh v. State of Bihar

2011-08-09

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2011
ORDER By the Court.-By this writ application, the petitioner has challenged, at a pre-detention stage, the order of preventive detention. He has not yet been taken into preventive detention and seeks to challenge Memo No. 219/Law dated 25.4.2011 (Annexure-2) issued by the District Magistrate, Jamui, whereby and whereunder he, while exercising the power under sub-section (2) of Section 3 of the National Security Act, 1980 read with notification No. S.O.-3005 dated 30.3.2011 of the Govt. of Bihar, Home (Spl.) Department has ordered and directed that the petitioner be detained and be placed in detention in Jamui Jail on the grounds and backgrounds of criminal history of the criminal cases against the petitioner contained in Memo No. 220/Law dated 25.5.2011 (Annexure-3) served to the petitioner. 2. Learned counsel for the State raised a question as to the maintainability of the writ petition at this stage. 3. In our view the question of maintainability does not arise inasmuch as it is now settled by the judgment in the case of Additional Secretary, Govt. of India v. Alka Subhash Gadia, reported in 1992 Supp.(1) SCC 496 and cases thereafter including the case of Hare Ram Pandey v. State of Bihar, reported in 2005 (3) East Cr C 31 (SC) : (2004) 3 SCC 289 and of this Court in Naresh Kumar Goel v. Union of India, reported in 2004 (1) East Cr C 89 Pat : 2004 (1) PLJR 298 that pre-detention challenge is permissible, though, within a very narrow compass. Virtually, there are only five grounds available for challenge of this nature. They are : (i) that the impugned order is not passed under the Act which it is purported to have passed, (ii) that it is sought to be executed against a wrong persons (iii) that it is passed for a wrong purpose (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. 4. Thus, it is for the petitioner to first satisfy this Court that his case comes within these five situations. 5. Before proceeding to consider this part, we desire it proper to notice some other facts of this case. The detention order was passed by the Collector, Jamui in purported exercise of powers conferred under Section 12 of the National Security Act. In the grounds there are two cases relevant to be mentioned. 5. Before proceeding to consider this part, we desire it proper to notice some other facts of this case. The detention order was passed by the Collector, Jamui in purported exercise of powers conferred under Section 12 of the National Security Act. In the grounds there are two cases relevant to be mentioned. Both these cases reflect interference in railway works. In the background there is something which is actually the main issue that is mentioned in annexure-3 to the writ petition which is as follows : "it is also reported by Rail S.P., Jamalpur that in each month, rack of goods Train laden with essential articles of different trader comes in Railway yard Jamui and goods requires to the unloaded within stipulated period and failing which extra amount has to be paid to the traders by Railway Department. But Ashok Kumar Singh by putting pressure on Railway employee got the time of unloading of goods changed and by doing so he earns a huge amount from traders. On refusal by Railway employee in changing the period of unloading of rack Ashok Kumar Singh entered in of the office of S.M., and assaulted the S.M., Jamui." 6. The order of detention having been passed by the Collector, Jamui was sent to Superintendent of Police (Railway), Jamalpur for execution. What is most curious is that apparently without first executing warrant of detention on the petitioner and then serving the grounds, the grounds have been served on the petitioner and returned without detaining him. That was done in May, 2011. The Collector protested and also pointed out that in the mean time the State Government had also affirmed the order of detention. He pointed out that how come without executing the warrant the grounds were served upon him. This, it is submitted, shows the clout that exists when it comes to the petitioner. 7. Be that as it may, Mr. N.K. Agrawal, learned senior counsel for the petitioner, submits that so far as his challenge is concerned he would come under the head that it was passed for a wrong purpose and that it is passed on vague, extraneous and irrelevant grounds. So far as wrong purpose is concerned Mr. Agrawal drew the attention of this Court that the petitioner is a labour contractor, a friend of traders. So far as wrong purpose is concerned Mr. Agrawal drew the attention of this Court that the petitioner is a labour contractor, a friend of traders. He had been protesting against the action of railway authority in aid of traders and therefore all this is being done by the authority. He then submits that grounds are vague, extraneous and irrelevant inasmuch as though in both the grounds it is stated that respective Station Master upon being threatened had abandoned their work the fact is not correct. He drew the attention of this Court to what is stated by the petitioner in paragraph 11 of the writ application. He states that in fact both Station Masters were reporting to duty. Lastly, Mr. Agrawal submits that problem which emanates from reading of detention order is a "law and order" problem and not a "public order" and, as such, there is non-application of mind by the authority before detention order was passed. The detention order though challenged at a pre-detention stage, thus, stands vitiated. 8. We have considered the matter. In our view, it is not a fit case where interference by this Court is called for and more so at a pre-detention stage. In our view, firstly, distinction between "public order" and "law and order" problem is now well established. If one looks to the grounds of detention as specified in the detention order what is revealed is that it is not one to one fight between the petitioner and the Station Master as an individual which would have made it a "law and order" problem but it is clearly a problem for the masses being created by the petitioner. The railway administration as a whole is being affected as also the traders in general that surely is a "public order" problem. This ground cannot be accepted. 9. Now, we come to specific ground with regard to challenge at a pre-detention stage. It is submitted that the purpose with which the detention order is issued is different from purpose as contemplated under the National Security Act. To my mind, once this Court has found that the problem is a public order problem and not law and order problem that itself is sufficient to satisfy that purpose is justifiable and it cannot be said that it is either mala fide in fact or mala fide in law. To my mind, once this Court has found that the problem is a public order problem and not law and order problem that itself is sufficient to satisfy that purpose is justifiable and it cannot be said that it is either mala fide in fact or mala fide in law. The purpose is to restore peace and harmony at the respective stations. It is the defence of the petitioner that he is a social worker and is being ousted by the railway authority. It is well established that in a matter of preventive detention and jurisdiction exercised by this Court, this Court cannot go into these disputed question off acts and assess them. The purpose is shown in the ground for detention being legally and otherwise valid, it is not open for this Court to adjudicate about the mala fide use thereof. 10. Now, we have to come to the challenge with regard to order having been passed on vague, extraneous and irrelevant grounds is a matter of pre-detention stage challenge. The reference to the grounds would show that they are neither vague nor extraneous and irrelevant. There are specific cases. In one where the petitioner has already been charge-sheeted and in another where investigation is pending. It is not extraneous for reasons, as already indicated above, that it has been passed for the purpose of restoring peace and harmony at railway station. It is not irrelevant because it is passed on relevant consideration where it is found that the petitioner by coercing the railway authority is seeking change in time which would be detriment to the traders thus giving him opportunity to unfairly make money. It is the subjective satisfaction of the detaining authority though based on objective findings which are present in the case and are valid. 11. In view of aforesaid, we find that no ground is made out for interference at pre-detention stage and the Writ petition is liable to be dismissed. It is, accordingly, dismissed. 12. It is the subjective satisfaction of the detaining authority though based on objective findings which are present in the case and are valid. 11. In view of aforesaid, we find that no ground is made out for interference at pre-detention stage and the Writ petition is liable to be dismissed. It is, accordingly, dismissed. 12. Before parting, we would like to observe that the detention order was issued by the Collector, Jamui being satisfied but once a detention order was sent for execution either because of clout enjoined by the petitioner or disrespect on the part of the executing officer instead executing warrant of detention first and then serving ground of detention on the detenu and taking his signature and sending it to the Collector, what was done is that the detenu was called to Malaypur Thana, who appears in presence of officer incharge and grounds of detention was served, signature of the petitioner taken and returned to the Collector without warrant being executed. This is a serious matter where the authority of the Collector and the State stands totally undermined. The sooner such situation is remedied by suitable action the better it would be. Otherwise, Junior officer would frustrate the order and action taken by the senior responsible officer especially in matters as serious as preventive detention. While dismissing the Writ petition, we direct that a copy of this order should be immediately sent to the Secretary, Department of Home Affairs, Government of Bihar, Patna for information and necessary action. Petition dismissed.