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2013 DIGILAW 745 (PAT)

Pappu @ Shahjada v. State of Bihar

2013-07-03

ADITYA KUMAR TRIVEDI, SHYAM KISHORE SHARMA

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ORDER ADITYA KUMAR TRIVEDI, J.:–Petitioner has challenged validity of his preventive detention having been passed in pursuance of order dated 14.11.2012 in terms of Section 12(2)of the Bihar Control of Crimes Act(for brevity henceforth used as Act), having approved at the end of State vide order dated 26.11.2012 in terms of Section 12(3) of the Act as well as order of confirmation dated 27.12.2012 at the end of State in terms of Section 21(1),22 of the Act. 2. Taking into account the facts incorporated in a report submitted by the sponsoring authority(S.P.),Patna requesting therein to keep the petitioner under preventive detention, the detaining authority initiated case no.10 of 2012 and after having been subjectively satisfied with the facts so disclosed, passed the order of preventive detention in terms of Section 12(2) of the Act on 14.11.2012 which was approved in terms of Section 12(3) of the Act at the end of State vide order dated 26.11.2012. The representation of petitioner, as is evident from supplementary affidavit was placed in folder before the Advisory Board on account of its late submission at the end of petitioner and after having considered and assented at the end of Advisory Board, the preventive detention was confirmed vide order dated 27.12.2012 permitting the petitioner to be under preventive detention from 14.11.2012 to 13.11.2013. 3. Challenging the validity of the successive orders, it has been urged on behalf of the petitioner that presence of criminal antecedent is not sine qua-non for passing of an order under preventive detention because of the fact that all the criminal cases having been shown against the petitioner is outcome of frivolous action of the prosecution. It has also been submitted that the subjective satisfaction of the detaining authority for passing of preventive detention order is based upon pendency of two cases bearing Khajekala P.S.Case No.68 of 2011 dated 27.08.2011 and Khajekala P.S.Case No.110 of 2011 dated 24.11.2011 while the order impugned is dated 14.11.2012 that means to say there happens to be considerable interval delay in between the date of incident of the cases which have been considered as a ground for passing the order impugned in consonance with the order impugned. It has further been submitted that no explanation is coming out for such long apparent delay so visualizing and on account thereof the order impugned happens to be non-maintainable. 4. It has further been submitted that no explanation is coming out for such long apparent delay so visualizing and on account thereof the order impugned happens to be non-maintainable. 4. It has also been submitted that the detaining authority acted in mechanical manner without considering the fact that in Fatuha P.S.Case No.22 of 2001 petitioner already stood acquitted while in remaining cases petitioner has already been granted bail. It has further been submitted that in the order impugned there happens to be reference of Khajekala P.S.Case No.40 of 2011 but the detaining authority failed to consider that petitioner had already been released on bail in connection thereof. It has also been submitted that petitioner’s status as an accused in Chawk P.S.Case No.119 of 2005 had also been shown while the truth is that the petitioner does not happens to be an accused in the aforesaid case. Therefore, submission is that the facts which led to subjective satisfaction of the detaining authority on account of being misleading did not justify the action of the detaining authority. 5. It has further been submitted that petitioner had already filed representation on 28.11.2012 but he had not been informed whether his representation was considered either by the State or was placed by the State before Advisory Board in terms of Section 19 of the Act for its consideration as the matter had already been placed before the Advisory Board much before filing of representation by the petitioner. As such, it has been submitted that the order of the preventive detention is not at all justifiable. 6. At the other hand, the learned AC to AG-V contended that the detaining authority was already aware with the fact that petitioner happens to be under custody in connection with Khajekala P.S.Case No.40 of 2011 and was taking every steps for getting himself bailed out. It has further been submitted that taking into account the criminal antecedent being an accused in altogether 14 cases and further indulgence in Khajakala P.S.Case No.68 of 2011 as well as 110 of 2011 let the detaining authority with a speculation that in case petitioner is released on bail, his presence will be deterrent to public safety and order and being subjectively satisfied therewith, passed the order impugned dated 14.11.2012. It has further been submitted that actually petitioner had filed representation which was received at the end of respondents no.l and 2 on 01.12.2012 and the same was considered by State and was rejected on 08.12.2012 and was communicated on 11.12.2012. The representation for its consideration in terms of Section 19 of the Act was placed before the Advisory Board in a folder and the Advisory Board considered the matter on 14.12.2012 forced sufficient material to justify preventive detention of the petitioner in pursuance of which vide order dated 27.12.2012 the order of detention was confirmed in terms of Section 21(1) and 22 of the Act extending the preventive detention of the petitioner from 14.11.2012 to 13.11.2013. 7. The basic theme of the preventive detention which is an exception to the fundamental right enshrined under constitution to a citizen under part-III of the constitution, is to provide a power to the executive to keep an individual under preventive detention in case his presence became unwholesome to public order and safety. The ambit and scope of preventive detention has been tested by a Constitutional Bench in Haradhan Saha Vs. State of The State of West Bengal and others reported in (1975) 3 SCC 198 and the following principle has been formulated:– “34. … First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate [sic] the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.” In Sunil Fulchand Shah Vs. Union of India reported in (2000) 3 SCC 409 , the majority view of the court on the issue has been explained under para-20. “20. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. Since, preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as “a necessary evil” and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.” 8. That means to say the status of preventive detention stood recognized by the constitution under part-III itself whereunder the personal liberty and individual freedom has also been recognized to be exercised without conduction of enquiry or trial. That means to say the status of preventive detention stood recognized by the constitution under part-III itself whereunder the personal liberty and individual freedom has also been recognized to be exercised without conduction of enquiry or trial. Its placing under part-III is indicative of the fact that at on occasion the constitution gifts to an individual the most cherished valuable right-personal liberty and also providing for its safeguard side by side, also prescribes preventive detention as a potential solution to prevent the danger to the State security which happens to be the legitimate action and on account thereof, the law of preventive detention has been upheld under the banner of Article 22 of the Constitution. In other words, individual’s fundamental right has been put at lower ladder than the interest of society, state, and in case, the activity of an individual is found detrimental to the interest of State, subject could be fairly dealt with action of preventive detention. 9. Admittedly, from the order impugned, it is evident that petitioner’s presence behind bar is found to be fully acknowledged and further he is trying to get himself bailed out is also manifest therefrom. This part is itself found supported with Annexure-8, the status report of the petitioner disclosing that petitioner happens to be on bail in connection with Sutanganj P.S.Case No.256 of 2005, Sultanganj P.S.Case No.240 of 2005, Sultanganj P.S.Case No.196 of 2005,Chawk P.S.Case No.67 of 2005, Khajekalan P.S.Case No.103 of 2009 while his prayer for bail has been rejected in connection with Khajekalan P.S.Case No.03 of 2011, Sultanganj P.S.Case No.257 of 2005, Sultanganj P.S.Case No.71 of 2011 by the different courts and show his sincere effort to get himself bailed out. 10. The order of preventive detention even can be passed against a detenu under custody and for that certain specification has been laid down by the Hon’ble Apex Court time to time. All those principles have been taken into consideration and explained in Union of India Vs. Paul Manickam & Anr reported in (2003) 8 SCC 342 and for better appreciation relevant paragraphs is quoted below.– “14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. Paul Manickam & Anr reported in (2003) 8 SCC 342 and for better appreciation relevant paragraphs is quoted below.– “14. So far as this question relating to the procedure to be adopted in case the detenu is already in custody is concerned, the matter has been dealt with in several cases. 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 Vs. Govt. of T.N.6 and Dharmendra Suganchand Chelawat Vs. Union of India7.) The point was gone into detail in Kamarunnissa Vs. Union of India8. 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 Vs. Govt. of T.N.6 and Dharmendra Suganchand Chelawat Vs. Union of India7.) The point was gone into detail in Kamarunnissa Vs. Union of India8. 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.” 11. In Huidrom Konungjao Singh Vs. State of Manipur and others reported in (2012) 7 SCC 181 while acknowledging the earlier decisions over the fact that a person even under custody since before would be liable for preventive detention in para-9 formulated following points to be fulfilled while passing the detention order in case the detenu happens to be under custody:- (i) The authority was full aware of the fact that the detenu was actually in custody,(ii) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudiously to public order, (iii) In view of the above, the authority failed it necessary to prevent from indulging in such activities and therefore, detention order was necessary. It has further been laid down that in case either of these facts does not exist the detention order would stand vitiated. 12. The real possibility of his being on bail has further been explained in Rekha Vs. State of Tamilnadu reported in 2011(5) SCC 244 and the relevant para-27.– “27. It has further been laid down that in case either of these facts does not exist the detention order would stand vitiated. 12. The real possibility of his being on bail has further been explained in Rekha Vs. State of Tamilnadu reported in 2011(5) SCC 244 and the relevant para-27.– “27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed.” 13. As such in sum & substance the question of real possibility of release of a person on bail who is already in custody arises only when he moves a bail application. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail whereupon the detention order will be illegal as it will not cater the needs. However, there can be an exception to this rule, in case having a co-accused, whose case stands on the same footing, had been granted bail. In such case, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application on his behalf is pending, since most courts normally grant bail on this ground. 14. From the supplementary affidavit filed on behalf of the petitioner, it is apparent from Annexure-B series that his persistent endeavour to get himself enlarged on bail was going on and even during intermediary period, he has been granted bail. 15. Therefore, the requirements as directed is found to be fully satisfied on this score. 16. 14. From the supplementary affidavit filed on behalf of the petitioner, it is apparent from Annexure-B series that his persistent endeavour to get himself enlarged on bail was going on and even during intermediary period, he has been granted bail. 15. Therefore, the requirements as directed is found to be fully satisfied on this score. 16. Now coming to the another aspect, though the status of the petitioner happens to be that of possessing chequered history however was taken in the background while passing the order of preventive detention which is found to be based upon presence of two cases that means to say Khajekala P.S.Case No.68 of 2011 dated 27.08.2011 as well as Khajekala P.S.Case No.110 of 2011 dated 24.11.2011. Admittedly, the order of preventive detention happens to be dated 14.11.2012 that means to say approximately consuming period of 12 months from the date of occurrence relating to Khajekalan P.S. Case No. 110/2011. It is also apparent from the order impugned, from the counter affidavit filed on behalf of respondents that there happens to be no material on the record to show that petitioner had ever indulged in similar illegal activities during intervening period. There should be proximity in having order of preventive detention passed in consonance with the incident so alleged, and considered for passing an order and in case, it is found that there happens to be complete absence in between without having sufficiently and reasonably explained, then in that event, the order of preventive detention could not justify its continuance. Delay in passing of the preventive detention order has elaborately been considered in a case Saeed Zakir Hussain Malik Vs. State of Maharashtra and others reported in (2012) 8 SCC page 233 wherein the detention order was passed after 15 months of the incident so alleged. For better appreciation, the relevant paras are quoted below.– “16. In Lakshman Khatik Vs. State of W.B. a three-Judge Bench of this Court, while considering the detention order under the Maintenance of Internal Security Act, 1971 has concluded that prompt action in such matters should be taken as soon as the incident like those which are referred to in the grounds have taken place. In Lakshman Khatik Vs. State of W.B. a three-Judge Bench of this Court, while considering the detention order under the Maintenance of Internal Security Act, 1971 has concluded that prompt action in such matters should be taken as soon as the incident like those which are referred to in the grounds have taken place. In the said decision, it was pointed out that all the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August 1971. The first incident of unloading five bags of rice took place in the afternoon of 3-8-1971. The second incident took place on 5-8-1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. That also related to the removal of some rice from loaded trucks. In this factual scenario, this Court concluded that the District Magistrate could not have been possibly satisfied about the need for detention on 22-3-1972 having regard to the detenu?s conduct some seven months earlier. The following conclusion is very relevant: (Lakshman Khatik case, SCC p. 3, para 5) “5. … Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some seven months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about seven months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid.” 17. In T.A. Abdul Rahman Vs. In our opinion, the order of detention is invalid.” 17. In T.A. Abdul Rahman Vs. State of Kerala, in similar circumstance, this Court held: (SCC pp. 748-49, paras 10-11) “10. … the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” After holding so, this Court quashed the order of detention. 18. In Pradeep Nilkanth Paturkar Vs. S. Ramamurthi the effect of delay in passing the detention order has been considered in detail. After analysing various earlier decisions, this Court held that: (SCC p. 63, para 10) “10. … ‘16. … Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. [However,] what is required by law is that the delay must be satisfactorily explained by the detaining authority.” 19. In Manju Ramesh Nahar Vs. … ‘16. … Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. [However,] what is required by law is that the delay must be satisfactorily explained by the detaining authority.” 19. In Manju Ramesh Nahar Vs. Union of India there was a delay of more than one year in arresting the detenu. This Court, while rejecting the vague explanation that the detenu was absconding, found that the detention order is vitiated. 20. In Adishwar Jain Vs. Union of India this Court held that delay must be sufficiently explained. In that case, lapse of four months between the proposal for detention and the order of detention was not explained properly, hence, this Court quashed the detention order. 21. It is clear that if the delay is sufficiently explained, the same would not be a ground for quashing an order of detention under COFEPOSA. However, delay at both stages has to be explained and the Court is required to consider the question having regard to the overall picture. In Adishwar Jain case, since a major part of delay remained unexplained, this Court quashed the detention order. 22. In Rajinder Arora Vs. Union of India this Court considered the effect of passing the detention order after about ten months of the alleged illegal act. Basing reliance on the decision in T.A. Abdul Rahman the detention order was quashed on the ground of delay in passing the same.” 17. At the cost of repetition, it is manifest from the order impugned that the same was passed on 14.11.2012 on the basis of the incident so reported on 27.08.2011 as well as 24.11.2011 without having cogent and reasonable explanation and therefore, did not justify its continuance. Consequent thereupon, the successive orders are set aside. Petition is allowed. The petitioner is directed to be released forthwith, if not wanted in any other case. SHYAM KISHORE SHARMA, J.:–I agree.