ORDER ADITYA KUMAR TRIVEDI 1. The petitioner has challenged order dated 09.07.2012 passed by District Magistrate, Munger / Detaining Authority in terms of Section 12(2) of the Bihar Control of Crimes Act (for brevity act) as well as order dated 16.07.2012 passed by the State Government approving order of detention dated 09.07.2012. However by way of Supplementary Affidavit he has also challenged order dated 31.08.2012 passed by the State confirming the order dated 09.07.2012 in terms of Section 21(1), 22 of the Act. 2. On receiving request at the end of S.P., Munger a proceeding bearing no.2/2012-13 was initiated against the petitioner purported to be under the Act, whereupon an objection was sought for from the petitioner “why not he be put under preventive detention” which was served upon the petitioner through Jail Superintendent, Munger followed with submission of explanation and the same was considered by the learned Detaining Authority while passing the order of preventive detention dated 09.07.2012 which got approval at the end of State vide order dated 16.07.2012. Even having information, the petitioner failed to file representation. The State placed the matter before the Advisory Board on 25.07.2012 and the Advisory Board opined that there exists sufficient material to justify preventive detention of the petitioner on 23.08.2012. In view thereof the State confirmed the order dated 09.07.2012 vide order dated 31.08.2012. 3. After going through the order impugned, it is evident that the concerned authorities instead of fulfilling, satisfying, complying the criteria so fixed by the Hon’ble Apex Court from time-to-time by judicial pronouncements proceeded with the matter half heartedly giving the executive flavour which not at all found to be subject of approval during course of judicious scrutiny because of the fact that by putting a citizen under preventive detention, backbone of constitution visualizing under part-III thereof is found to be completely barricaded. That happens to be reason behind to keep the proceeding under tight compartment whenever it relates to preventive detention, so that the detenue could not feel victimized. 4. Preventive detention is a method for keeping a person at jail by way of prevention whenever his presence in the society hurts the public order as well as his activities found to be prejudicial to the interest of State. Application of preventive detention has been made permissible not with regard to persons roaming around but also against a person having been under custody. 5. Application of preventive detention has been made permissible not with regard to persons roaming around but also against a person having been under custody. 5. The aforesaid liberty was acknowledged by a Constitutional Bench decision of the Hon’ble Apex Court in the case of Rameshwar Shaw, vs. District Magistrate, Burdwan, reported in AIR 1964 SC 334 . “[12] As abstract proposition of law, there may not be any doubt that S. 3 (1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. …Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.” 6. The Hon’ble Apex Court in the case of Binod Singh vs. District Magistrate, Dhanbad, reported in (1986) 4 SCC 416 while acknowledging the aforesaid privilege put certain restrictions. For better appreciation paragraph 7 thereof is incorporated below:- “7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.” 7. The aforesaid point has again came out for adjudication before the Hon’ble Apex Court in Kamarunnissa vs. Union of India, reported in (1991) 1 SCC 128 , wherein certain principles have been formulated which the detaining authority was expected to discharge during course of passing of detention order against the detenue who at the relevant time was under custody. “13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court.” 8. The aforesaid view has further been reiterated by the Hon’ble Apex Court in Rajesh Gulati vs. Govt. of NCT of Delhi & another reported in (2002) 7 SCC 129 , Union of India v. Paul Manickam reported in (2003) 8 SCC 324, T.V. Sravanan @ S.A.R. Prasana Venkatachaariar Chaturvel vs. State through Secretary and another reported in (2006) 2 SCC 664 . In a case Rekha vs. State of Tamil Nadu reported in 2011(3) BBCJ 289. of NCT of Delhi & another reported in (2002) 7 SCC 129 , Union of India v. Paul Manickam reported in (2003) 8 SCC 324, T.V. Sravanan @ S.A.R. Prasana Venkatachaariar Chaturvel vs. State through Secretary and another reported in (2006) 2 SCC 664 . In a case Rekha vs. State of Tamil Nadu reported in 2011(3) BBCJ 289. Apart from observing that if no bail application was pending and the detenue was already languishing behind bar in connection with substantial criminal case, the detention order passed under preventive detention law happens to be illegal. Further elaborated the issue under para-11. “11. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail orders in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored.” 9. Now coming to the order dated 09.07.2012, it is apparent that the learned detaining authority had detailed the criminal antecedent as well as had based his subjective satisfaction on account of involvement of petitioner in two more cases failed to acknowledge the status of the petitioner to be under custody and further, whether any step was taken on his behalf for being bailed out. 10. To explain the situation, learned AC to AG has submitted that once service of asking for an objection against the petitioner was through Jail Superintendent, Munger then in that event there was no need for the detaining authority to mention the fact that petitioner happens to be under custody. 11. 10. To explain the situation, learned AC to AG has submitted that once service of asking for an objection against the petitioner was through Jail Superintendent, Munger then in that event there was no need for the detaining authority to mention the fact that petitioner happens to be under custody. 11. In likewise manner, it has also been submitted that petitioner, by way of supplementary affidavit, had himself disclosed that he got bail order in connection with Kharagpur P.S. Case No.104 of 2011 on 14.12.2012 by this Court. In the aforesaid backdrop, the effort of petitioner in getting himself bailed out is itself apparent. Therefore, the limitations whatever been imposed by a catena of decisions by the Hon’ble Apex Court is found to be fully exhausted. 12. The aforesaid submission appears to be fallacious one. The submission raised on behalf of learned AC to AG is not at all conceivable because of the fact that it is the order of preventive detention which happens to be the subject matter of challenge. It is the order of preventive detention which cast embargo upon the fundamental right of a citizen. It is the order of the preventive detention which happens to be the subject matter of adjudication and in the aforesaid background, the aforesaid order is to be judged on the scale prescribed by series of judicial pronouncement. The procedure adopted contrary to law is not at all permissible. Being in custody of an accused a hardened criminal, anti-social element, habitual offender but as a citizen he possesses a fundamental right enshrined under constitution which is bound to be preserved. However, its seizure is found permissible subject to adaptation of law and procedure so prescribed. Any sort of deviation on this very score appears to be derecognized at the pretext of non-compliance of the statutory provisions of law. Therefore, the detaining authority should be vigilant as well as cautious during course of passing of preventive detention order that the procedure prescribed have been properly followed with as well as the requirement thereupon have also been satisfied. 13. The order of detention should not be passed in hypothetical manner as well as should suffer from any sort of illusion, rather the same should speak proper appreciation of the facts conductible to subjective satisfaction leading to passing of an order under preventive detention. 14. 13. The order of detention should not be passed in hypothetical manner as well as should suffer from any sort of illusion, rather the same should speak proper appreciation of the facts conductible to subjective satisfaction leading to passing of an order under preventive detention. 14. At this juncture, non-filing of representation as indicated under para-8 of petition by the detenu has also to be taken note of. According to learned AC to AG, petitioner has got no legal right to challenge the order as barred by law of estoppel as well as waiver which has been contorverted by petitioner. 15. Provision to represent is an opportunity provided to detenu to place his objection regarding his preventive detention. That does not mean that in case of non-availing the aforesaid opportunity will deprive him to challenge validity of the preventive detention order which is suffering from inherent infirmities. So, in our considered view, non-filing of representation will not put any hurdle in filing writ fro habeas corpus. 16. Now coming to the order dated 09.07.2012, it is evident that there happens to be complete lacking of application of mind on this score. Such deficiency happens to be inherent lacuna so persisting which makes the order invalid. In the backdrop, the order impugned could not survive with the aid of Section 12(A) of the Act. Consequent thereupon the successive orders that means to say the order of detention dated 09.07.2012, order of approval dated 16.07.2012 and order of confirmation dated 31.08.2012 are set aside. Petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case.