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2020 DIGILAW 249 (PAT)

Manoj Kumar Singh v. State of Bihar

2020-04-15

ANJANI KUMAR SHARAN

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JUDGMENT : ANJANI KUMAR SHARAN, J. 1. This case has been posted before me for hearing through video-conferencing, under the orders of Hon'ble the Chief Justice, in view of Nation going through lock down as an aftermath of the outbreak of COVID-19 pandemic. 2. Learned counsel for the petitioner submits that despite of the acquittal of the petitioner in Dhoreiya (Banka) P.S. Case No. 2 of 2016, vide judgment dated 04.10.2019 passed by the learned Judicial Magistrate 1st Class, Purnia, G.R. Case No. 22 of 2016/3842 of 2018 (Trial No. 35 of 2019), the petitioner has yet not been released from the Jail. 3. This Court vide order dated 09.01.2020 has directed the respondent nos. 2 & 3 to file counter affidavit and, pursuant thereto, the Superintendent of Central Jail, Purnia has filed its counter affidavit which is on record. The stand taken by the Jail Superintendent in his counter affidavit is that, after receiving the release order in the aforesaid case, the petitioner was released on 04.10.2019 in this case, but was not released physically and is detained in custody on the strength of production warrant issued by the Certificate Officer, Banka in Certificate Case No. 2 of 2015-16. 4. Thereafter, the petitioner has filed I.A. No. 1 of 2020, on 31.01.2020 before this Court, for modification in the prayer made in Cr.W.J.C. No. 1778 of 2019 to the following effect-- i. For releasing the petitioner from the illegal custody of the respondent authorities in certificate case no. 02/2015-16 pending before the Certificate Officer, Banka in which the petitioner had already filed his objection and the same is pending since 10.06.2016. ii. For release of the petitioner who was in detention in Banka Jail since 17.11.2016 till 14.09.2016, thereafter in Purnea Jail since 15.09.2018 till 04.01.2020 and at present in illegal detention in Banka Jail since 04.01.2020 in violation of the fundamental rights enshrined under Article 21 of the Constitution. iii. In view of gross illegalities committed by the authorities by way of detaining the petitioner in Banka Jail an award by way of cost may also be passed. 5. Learned counsel for the petitioner further submits that the detention of the petitioner in judicial custody in connection with Certificate Case No. 2 of 2015-16 is illegal and without jurisdiction as the Certificate Officer has no authority to issue production warrant for bringing the petitioner before him. 5. Learned counsel for the petitioner further submits that the detention of the petitioner in judicial custody in connection with Certificate Case No. 2 of 2015-16 is illegal and without jurisdiction as the Certificate Officer has no authority to issue production warrant for bringing the petitioner before him. Firstly, recovery of an alleged amount without deciding his objection filed under Section 9 of the Bihar & Orissa Public Demand Recovery Act (hereinafter in short referred to as the Act') and secondly there is no provision conferring power to the Certificate Officer to issue production warrant under the Act. Thus, he submits that the detention of the petitioner in judicial custody is without valid order, having no force of law and, accordingly, prayed that the petitioner may be directed to be released forthwith. 6. The petitioner has brought on record the order-sheet of the entire Certificate Case No. 2 of 2015-16 (Annexure-8 to the writ application). From bare perusal of Annexure-8, it transpires that a certificate proceeding was initiated at the instance of Bihar State Food and Civil Supplies Corporation Limited (BSFC), by taking recourse of Section 5 & 6 of the Act, to recover Rs. 3,12,89,683.00 (Rupees Three Crores Twelve Lakhs Eighty Nine Thousand Six Hundred and Eighty Three only). The Certificate Officer Banka, vide its order dated 20.12.2015, issued notice to the petitioner on 08.03.2016. Pursuant thereto, the petitioner appeared before the Certificate Officer and the Certificate Officer directed for payment of Rs. 50 Lakhs by the certificate debtor (the petitioner) and further directed that in case of failure to make payment by the next date, distress warrant will be issued against the petitioner and on 31.03.2016 distress warrant was issued against the petitioner. It further manifest from perusal of the order sheet of Certificate Case No. 2 of 2015-16 that the petitioner had filed his objection on 16.06.2016 under Section 9 of the Act and denied his liability. 7. The Certificate Officer, Banka vide its order dated 22.11.2016, without deciding the objection petition in terms of Section 10 of the Act, issued production warrant to the Superintendent of Jail, Banka to produce the petitioner before him as the petitioner was arrested and taken into custody by that time in connection with Banka PS. Case No. 2 of 2016. 7. The Certificate Officer, Banka vide its order dated 22.11.2016, without deciding the objection petition in terms of Section 10 of the Act, issued production warrant to the Superintendent of Jail, Banka to produce the petitioner before him as the petitioner was arrested and taken into custody by that time in connection with Banka PS. Case No. 2 of 2016. It may be noted here that both the proceedings i.e. the criminal case and certificate case are in respect of same commission and omission of alleged defalcation of Rs. 3,12,89,683.00 by the petitioner working as Jan Sevak-cum-Block Agriculture Officer and also as in charge of BSFC godown situated at Dhoreiya (Banka). 8. The petitioner has been, subsequently, acquitted in criminal case i.e. Dhoreiya (Banak) PS. Case No. 2 of 2016 by judgment and order dated 04.10.2019 and is still being detained in custody for last six months in Purnia Central Jail and presently in Banka Jail, on the basis of production warrant, which has brought the petitioner to this Court complaining that his detention is illegal as no person can be either remanded or detained in custody without valid authority of law. 9. Thus, the uncontroverted facts lies, in narrow compass, is that the Certificate Officer, without deciding the objection filed by the petitioner under Section 9 of the Act, denying the liability by the certificate debtor, cannot insist for production of the petitioner before him from the judicial custody as the Act does not mandate the presence of the petitioner for deciding the objection and, thus, the action of the Certificate Officer is manifestly arbitrary and in gross violation of principles of natural justice, as the power was exercised beyond the statutory provisions of the Act. Further Section 40 of the Act prescribes the maximum period of six months of civil prison, which could not be extended beyond that in any circumstance. In the present case, the petitioner is remained in regular custody for more than six months on the basis of the production warrant issued by the Certificate Officer, Banka. 10. Per contra, learned counsel for the State submits that there are two separate proceedings going on against the petitioner. The petitioner has been released in criminal case and he has not challenged the certificate proceeding. 11. 10. Per contra, learned counsel for the State submits that there are two separate proceedings going on against the petitioner. The petitioner has been released in criminal case and he has not challenged the certificate proceeding. 11. Having heard both the sides and perusing the materials available on record, in my considered opinion, the Certificate Officer, Banka failed to notice the interdict contained in Section 14 of the Act, which bars the Certificate Officer from taking any steps for execution of a certificate once an objection under Section 9 of the Act has been filed and until such petition has been heard and decided. In the present case, up till now, no decision has been taken on the objection filed under Section 9 of the Act. Further, the only power vested in the Certificate Officer to detain a person in civil prison is provided under Section 15 of the Act which is one of the modes for execution of the certificate and not as a mode of punishment. In the present case, no order under Section 15 of the Act has been passed conferring power to detain a person to justify the order for issuance of production of warrant. 12. The Bihar & Orissa Public Demand Recovery Act nowhere conferred power to a Certificate Officer to issue production warrant and to direct a prison authority to produce a detainee in custody before him and thus the continued detention of the petitioner for the last six months is without any authority of law and is arbitrary, illegal and unlawful. I.A. No. 1 of 2020 stands disposed of. 13. In the result, this writ application is allowed to the extent as indicated above and the Superintendent of Jail, Bank is directed to release the petitioner forthwith and submit a compliance report to this Court within two weeks from today, unless the petitioner is liable to be detained in any other case. 14. Since there is a lockdown, the Court has considered it appropriate to adopt following procedure for communication of the present order:-- (i) The order, which has been dictated during the course of the proceedings of virtual Court, shall be communicated to me on my e-mail I.D. by the Secretary. 14. Since there is a lockdown, the Court has considered it appropriate to adopt following procedure for communication of the present order:-- (i) The order, which has been dictated during the course of the proceedings of virtual Court, shall be communicated to me on my e-mail I.D. by the Secretary. (ii) The corrected copy of the order shall be transmitted by me from my email I.D. to Registrar List, Patna High Court, which shall be treated to be the authentic copy of the order passed by this Court today in the present proceeding. (iii) Hard copy of the order signed by me, shall be preserved in my residential office for documentation and for future use, if any. Let appropriate steps be taken by the Registry for uploading of the present order without compromising with the norms of social distancing.