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2016 DIGILAW 1141 (JHR)

Upendra Singh v. State of Jharkhand

2016-07-26

RONGON MUKHOPADHYAY

body2016
ORDER : 1. Heard Mr. Kaushik Sarkhel, Learned counsel for the petitioner and Mr. Vikash Kishore, learned J.C. to AAG, appearing for the respondents. 2. This application is directed against the order dated 01.02.2016 passed by the respondent No. 3 (Deputy Commissioner cum District Magistrate, East Singhbhum, Jamshedpur) by virtue of which an order of preventive detention against the petitioner for a period of three months had been passed. A further prayer has been made for quashing the orders dated 8.02.2016 and 14.03.2016 passed by respondent No. 2 (Under Secretary, Govt. of Jharkhand, Department of Home, Prison & Disaster Management), whereby and where under the detention order passed by the respondent No. 3 has been confirmed and a further confirmation was made by the respondent No. 2 after the order was passed by the Advisory Board. 3. It has been submitted by the learned counsel for the petitioner that immediately after the grounds of detention were served upon the petitioner, he had made his representation u/s 17 of the Jharkhand Control of Crimes Act before the competent authority, but even after expiry of more that five months the said representation was never considered nor any explanation was given with respect to the delay in considering such representation. It has further been submitted that the respondents have acted against the constitutional mandate of considering and disposing of the representation at the earliest since the same involves the liberty of an individual. It has further been submitted that the counter affidavit filed on behalf of the respondent No. 2 specifically states about non-consideration of the representation submitted by the petitioner and such being the admitted position the order of preventive detention of the petitioner is liable to be set aside. In support of his contention, learned counsel has referred the judgment passed in the case of Abdul Nasar Adam Ismail v. State of Maharashtra and others reported in (2013) 4 SCC 435 . 4. Learned State counsel has referred to the counter affidavit filed by the respondent No. 2 and has stated that once when the Advisory Committee has approved the order of detention there was no question of consideration of the representation submitted by the petitioner and of reviewing its own orders. 4. Learned State counsel has referred to the counter affidavit filed by the respondent No. 2 and has stated that once when the Advisory Committee has approved the order of detention there was no question of consideration of the representation submitted by the petitioner and of reviewing its own orders. The learned State Counsel therefore submits that since the procedural aspect as has been laid down under the Jharkhand Control of Crimes Act has been properly followed and only on the question of non-consideration of the representation of the petitioner, the preventive detention as ordered by the respondent No. 2 on 01.02.2016 cannot be interfered with. 5. It appears that in terms of Section 12(2) of the Jharkhand Control of Crimes Act, an order was passed by the respondent No. 2 on 01.02.2016 directing the petitioner to be kept under preventive detention for a period of three months i.e. till 30.04.2016, subject to confirmation by the State Government. Subsequently vide order dated 08.02.2016 the order of preventive detention as has been passed by the respondent No. 2 had been approved by the State Government. The petitioner, as it seems that after receiving the grounds of detention, had preferred a representation on 14.02.2016 before the respondent No. 2. The representation of the petitioner was kept pending and subsequent to the order of the Advisory Board, the State had since again approved the preventive detention of the petitioner vide order dated 14.03.2016. Since the tenure of three months was going to expire on 30.04.2016, the detention of the petitioner was further extended vide order dated 14.03.2016. It is an admitted fact that the representation of the petitioner which was filed almost immediately on being served with the grounds of detention in terms of Section 17 of the Jharkhand Control of Crimes Act, but the said representation was neither considered nor was disposed of by the authorities. The counter affidavit very clearly specifies that the representation was never considered as it would tantamount to reviewing the order of the authorities. 6. Section 17 of the Jharkhand Control of Crimes Act 1991 deals with the procedural aspect when a detenu is served with an order of preventive detention. It lays down that when an order of detention is made such detenu shall be given an earliest opportunity of making representation against the order of the State Government. 6. Section 17 of the Jharkhand Control of Crimes Act 1991 deals with the procedural aspect when a detenu is served with an order of preventive detention. It lays down that when an order of detention is made such detenu shall be given an earliest opportunity of making representation against the order of the State Government. The representation which finds place at Section 17 of the Act has its own purposes and the same cannot be taken lightly as it involves the personal liberty of the detenu. It is incumbent upon the State Government to consider the representation at the earliest moment it is received and thereafter pass necessary orders on the same. Merely keeping the representation pending without assigning any reasons for doing so would virtually amount to thwarting the personal liberty granted to an individual. 7. In the case of Abdul Nasar (supra), the Hon'ble Supreme Court after considering the earlier precedent on the subject had culled out the legal application thrust on the State with respect to delay in consideration of the representation submitted by the detenu and has held as follows:- "16. The principles which have been laid down by the Constitution Bench and the other judgments which we have referred to earlier can be summarized. Article 22(5) of the Constitution casts a legal obligation on the Government to consider the detenu's representation as early as possible. Though no time limit is prescribed for disposal of the representation, the constitutional imperative is that it must be disposed of as soon as possible. There should be no supine indifference, slackness or callous attitude. Any unexplained delay would be a breach of the constitutional imperative and it would render the continued detention of the detenu illegal. That does not however, mean that every day's delay in dealing with the representation of the detenu has to be explained. The explanation offered must be reasonable indicating that there was no slackness or indifference. Though the delay itself is not fatal, the delay which remains unexplained becomes unreasonable. The court can certainly consider whether the delay was occasioned due to permissible reason or unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or the range of delay, but how it is explained by the authority concerned. The court can certainly consider whether the delay was occasioned due to permissible reason or unavoidable causes. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or the range of delay, but how it is explained by the authority concerned. If the inter- departmental consultative procedures are such that the delay becomes inevitable, such procedures will contravene the constitutional mandate. Any authority obliged to make order of detention should adopt a procedure calculated towards expeditious consideration of the representation. The representation must be taken up for consideration as soon as such representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu." 8. In the case under reference on account of delay in disposal of the representation of the detenu by the State Government such detention was rendered illegal. It is categorically held in the judgment under reference that the representation must be taken into consideration since the same is received and is dealt with continuously until a final decision is taken and communicated to the detenu. Unfortunately the respondents after acceptance of the representation submitted by the petitioner had merely sat over it without making any effort to get the same disposed of. The legal obligation cast on the State Government under Article 22(5) of the Constitution has not been followed in this particular case and such non-consideration of the representation even after expiry of more than five months from the date of its submission renders the order of preventive detention unsustainable. 9. Accordingly having found merit in this application the same is allowed and the impugned order of detention dated 01.02.2016 passed by the respondent No. 3 (Deputy Commissioner cum District Magistrate, East Singhbhum, Jamshedpur) as well as the subsequent orders dated 8.02.2016 and 14.03.2016 passed by respondent No. 2 (Under Secretary, Govt. of Jharkhand, Department of Home, Prison & Disaster Management) in 5/CCA/01/05/2016-678 by which the said detention order was approved, are hereby quashed and set aside. 10. The petitioner shall be released forthwith, if not wanted in any other case. Application allowed.