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2013 DIGILAW 137 (PAT)

Md. Shahjahan, son of Md. Kalim v. State of Bihar

2013-01-30

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

body2013
ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 1. Petitioner by way of instant writ has prayed for setting aside the order dated 09-09-2012 passed by District Magistrate, Madhepura which has been approved by the State Government vide order dated 18.09.2012 in token of Section 12(3) of the Act and confirmed in terms of Section 21 of the Act vide order dated 03.10.2012. 2. An information placed by S.P., Madhepura incorporating criminal antecedent of the petitioner was considered by the learned District Magistrate, Madhepura and the activities of the petitioner was found to be prejudicial to public order on account of his involvement in Chausa P.S. Case No.23/2012, Chausa P.S. Case No.97/2012, Chausa P.S. Case No.98/2012 in the background of having criminal antecedent as Chausa P.S. Case No.30/2002, Chausa P.S. Case No.75/2004, Chausa P.S. Case No.79/2002, Chausa P.S. Case No.34/2007 vide order dated 09.09.2012 hence the DM directed the petitioner to be kept under preventive detention in terms of Section 12(2) of the Bihar Control of Crime Act. The aforesaid order was subject to approval by the State Government on 18-09-2012 in accordance with Section 12(3) of the Bihar Control of Crime Act. As directed, petitioner had filed representation on 14-09-2012 which was sent to the Government for its consideration which was rejected on 26-09-2012 and subsequently thereof after having reference at the end of Government to the Advisory Board which concurred vide resolution dated 20.09.2012 confirmed the same vide order dated 03.10.2012. 3. It has been submitted on behalf of petitioner that the order impugned happens to be bad in law as well as on facts hence is fit to be set aside. It has further been submitted that District Magistrate was not at all authorized to pass order of preventive detention for a period of one year in terms of Section 12(2) of the Act as the same was to be made effective only for a period of three months during which the District Magistrate was delegated with the power. Putting further emphasis on this point, it has been submitted on behalf of petitioner that the District Magistrate was competent to exercise such power within the period of three months from the date of delegation of power and in likewise manner the period of preventive detention should have been made. Putting further emphasis on this point, it has been submitted on behalf of petitioner that the District Magistrate was competent to exercise such power within the period of three months from the date of delegation of power and in likewise manner the period of preventive detention should have been made. The period beyond the delegated power happens to be bad because of the fact that after expiry of the period concerned, the delegation of power would not have survived, consequent thereupon the period of detention in likewise manner will become nonest in the eye of law. 4. It has further been submitted that the order dated 09.09.2012 clearly shows non-application of judicial mind to the facts and circumstances of the case and therefore the process of subjective satisfaction happens to be contrary to the settled principle of law. 5. At the other hand, the learned A.G. while refuting the submission raised on behalf of petitioner submitted that the period of detention was not at all guided by the period of delegation of power. Delegation of power is a process by which the power is vested to act and exercise the powers on his behalf during stipulated period confirming its validity. Therefore, passing of preventive detention for a period beyond that could not be construed illegal because of the fact that on the relevant day the District Magistrate was already enjoying the delegated power in accordance with law. 6. It has further been submitted that subjective satisfaction of the detaining authority is beyond judicial scrutiny. Unless and until there happens to be flagrant violation, in normal course, process of subjective satisfaction would also goes out of judicial scrutiny. Therefore, the finding arrived at by the learned District Magistrate approved and confirmed subsequently by the State Government do not require any sort of interference. 7. It has further been urged that when the order of detention passed by the District Magistrate is being approved and subsequently confirmed by the State Government, the initial order merged with the order of confirmation passed by the State Government and because of the fact that the order of confirmation happens to be in accordance with law, therefore any sort of infirmities as raised and pleaded now no more exists. 8. Therefore, there is no hitch with regard to application of preventive detention while the detenu being under judicial custody. 8. Therefore, there is no hitch with regard to application of preventive detention while the detenu being under judicial custody. The mechanism on this score have been prescribed by the Hon’ble Apex Court, times without number. In a case reported in (2003) 8 SCC 342 Union of India v. Paul Manickam, it has been observed under para-14. “14. … Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v. Union of India. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.” 9. From the order impugned, it is evident that the learned District Magistrate had not detailed the subsequent event that means to say with regard to status of the petitioner in its order dated 09-09-2012 satisfying the requirements as laid down by the Hon’ble Apex Court referred above. 10. Because of the fact that preventive detention has been seen to be extraordinary situation where under there happens to be permissibility of curtailment of fundamental right as enshrined under Part-III of the Constitution which the State is under obligation to abide with, therefore, encroachment made by the State over the constitutional inherent right of a citizen should be carefully exercised after having proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizen, or seek to disturb public law and order, warranting the issuance of such an order. It should not be passed in casual manner rather the same should be exercised in accordance with law, procedure so laid down and that happens to be the mandate of Article 21 of the Constitution which reads as follows:- Article 21 Protection of Life and Personal Liberty - “No person shall be deprived of his life or personal liberty except according to procedure established by law” 11. With regard to procedure to be followed up by the authority concerned for the purpose of passing of preventive detention is itself enumerated in the act. The preventive detention should be passed upon subjective satisfaction of the detaining authority on the point of public safety which was to be alive only for a period of 12 days (in exceptional circumstances 15 days) within which it was subject to approval. The detaining authority during the intervening period was required to furnish a copy thereof to enable the detenu to file his representation before the authority concerned in terms of Section 17 of the Act. Within three weeks from the date of detention the matter was to be referred to the Advisory Board in terms of Section 19 of the Act along with all the relevant documents and the representation, if any, filed on behalf of detenu. In terms of Section 20 of the Act within seven weeks from the date of detention, the Advisory Board has to report whereupon the State was to base for confirmation of the order. Now coming to the facts of the case in hand, admittedly representation was filed on 14.09.2012 and as per disclosure made in para-6 of counter affidavit of respondent no.1, the same was received at his end on 17.09.2012 but surprisingly enough nowhere it has been pleaded that the representation of detenu was ever placed before the Advisory Board for its consideration. Therefore, there has been utter violation of Section 19 of the Act at the end of respondent apart from persisting infirmities in terms of principle laid down by the Hon’ble Apex Court in Paul Manickam case as referred above. As such, the successive orders are set aside. Consequent thereupon, petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case.