PAPPU GOPE @ SHAILENDRA KUMAR v. THE STATE OF BIHAR & ORS.

dated 15.6.2010, confirming the order of detention by the Government under Sections 21(1) and 22 of the Act. By this order the detention of petitioner till 11.5.2011 has been confirmed. The impugned orders have been assailed by the petitioner on different grounds which are as follows:- (i) The order of detention under Section 12(2) of the Act has been issued by the District Magistrate, Patna without considering relevant facts, which made basis for detention. (ii) The ground of detention referred by the Detaining authority was of instituted on 4.8.2009 connection with Gandhi Maidan P.S. case no. 309 of 2009 under Sections 3 399/402 of the Indian Penal Code and 25 (1-B)A, 26/35 of the Arms Act. On the basis of this case the detention order was passed on

11.5.2010, which goes to show that there was imminent danger of maintenance of public security and safety at the hands of the petitioner and thereby to pass an order of detention against him. (iii) The first order of detention for maximum period of one year could not have been passed by the District Magistrate, Patna as the period could not have exceeded three months under Section 12(2) of the Act. (iv) Non consideration representation filed by the petitioner expeditiously has effect of the violation of provisions as contained in Article 4 22(5) of the Constitution of India. The grounds for detention do not disclose any action affecting the public order. The criminal cases simply being relating to law and order. For this, the detention order is completely without jurisdiction. Counsel for the petitioner submits that there is not a single case against the petitioner which suggests the public disturbance. The petitioner was taken into custody on 3.8.2009 and the detention order was passed on 11.5.2010 after nine months. In the meanwhile, no other criminal or complaint case was reported against him. There was no proximity in between the offence alleged to be committed by the petitioner and the order of detention. Till now the petitioner has not been communicated any case by any Court of law and in all four cases referred as ground of detention the 5 petitioner has already been granted bail. The detention order has been passed when the petitioner has already been granted bail in all four cases but this fact was purposely suppressed by the Sponsoring Authority and the detention order was passed without any consideration of this relevant fact. The detention order as such was passed without any application of mind and for this reason; it is fit to be quashed. In support of this contention the petitioner has placed reliance on several decisions, such as 2008(4) PLJR 286 (Pramod Jaiswal Vs. State of Bihar), 2002(1) PLJR 419 ( Umesh Singh), 2006(3) PLJR 359 (Pramod Jaiswal Vs. State of Bihar) as well as AIR 1999 SC 684 ( Rajammal Vs. State of Tamil Nadu). In all these decisions it has been held that an authority passing a detention order is 6 obliged and bound to address itself to all the relevant facts and circumstances and the materials taken into consideration, seriously, so that the detention order, which results into deprivation of rights and liberty and restriction on the movement of an individual, can be justified. Aim and design of provisions of section 12 has been to see that order of preventive detention has to be passed upon consideration of relevant materials and full application of mind to the factual facts since detention order results into serious civil and evil consequence, before a person is visited with such consequences and is subjected to deprivation of the liberty and movements, authority must consider, seriously and apply its mind to the vital fact of enlargement of the detenu on bail in criminal cases, which is consideration for his detention, must result into quashment of the detention order. 7 Petitioner has also raised an objection regarding passing of the detention under Section 12(2) of the Act initially for one year when the Acts provide that first year of detention under Section 12(2) of the Act cannot be for a period beyond three months. Certainly the order passed by the District Magistrate, Patna is completely in violation of Section 12(2) of the Act; the initial order unless approved by the competent authority could not have been for a period of more then three months. Counsel for the petitioner has placed reliance on a decision reported in AIR 1999 SC 684 (Rajammal Vs. State of Tamil Nadu), in order to substantiate his contention regarding non-consideration representation by the respondent. In this decision the Apex Court while considering this issue has held that "it is a constitutional 8 obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution the decision to be taken on representation the words "as soon as may be" in Clause (5) of Article 22 convey the message that the representation, should be considered and disposed off at the earliest". In this very decision it has been held that the Court can consider explanation submitted by the respondent authority as to whether delay was occasioned due permissible reasons or unavoidable cause but the delay of each and every date has to be explained. Simply making some vague excuse for causing delay will not be sufficient for holding the detention order as legal and valid. All provisions under the Control of Crimes Act has to be observed diligently and 9 strictly by the respondent considering the fact that a liberty of citizen guaranteed under Article 21 of the Constitution is involved. There cannot be delay of even one day which is an unexplained. In the present case the contention of the petitioner is that his representation was not considered till the date the detention order was confirmed by the State Government. There is no reply to this statement either in the counter affidavit filed by the State or the counter affidavit filed by the District Magistrate, Patna. There are many reasons for holding that the order of detention passed by the District Magistrate, Patna under Section 12(2) of the Act dated 11.5.2010 is illegal and bad. One of them being that there is complete non-application of mind, suppression of material facts and initial order 10 being passed for a period of more than three months, which is not legally provided under Section 12(2) of the Act. The order of approval by Under Secretary

17.5.2010 and the order of confirmation by the Government under sections 21(1) and 22 of the Act are also not in accordance with the provisions of the Act on account of delay and also total non application of mind. For these reasons, all three orders are quashed. The writ application is allowed. (Mridula Mishra,J.) (Dharnidhar Jha,J.) A.Kumar