Baiju Rai v. Ministry Of Home Affairs, Bihar Patna

Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 74/2012 H(P) 7851 dated 3.10.2012 (Annexure-3) by which the Government has approved the detention order issued by respondent no. 3 under Section 12(3) of the Act. (iii) To quash the order vide Memo No. 07/C.C.A. -10- 74/2012 H (P) – 8564 (Annexure-5) by which the State Government has been pleased to confirm the detention order dated 24.9.2012 passed by respondent no. 3 and the petitioner has been directed to remain in detention till 23.9.2013. (iv) To quash Letter No. 7/ C.C.A.-10-74/2012 by which the representation of the petitioner has been rejected by the State Government (Annexure- 6) and to direct the respondents to release the petitioner henceforth.

2. On the basis of report submitted by the Superintendent of Police (respondent no. 4), District Magistrate (respondent no. 3) has passed the detention order of the petitioner as contained in Annexure-2. The detention order passed by respondent no. 3 has been confirmed by the State Government in exercise of power under Section 12(3) of the Act against the petitioner vide Memo No. 7851 dated 3.10.2012 as contained in Annexure-3. Thereafter, the petitioner made a representation on

5.10.2012 (Annexure-4) before the State Government through the proper channel requesting him to recall the detention order passed Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 by the District Magistrate (respondent no. 3). Thereafter, the matter was placed before the Advisory Board under Section 19 of the Act and considering the sufficient cause held by it the State Government confirmed the detention order passed by respondent no. 3 and directed the petitioner to be in detention till 23.9.2013 vide Memo No. 8564 dated 30.102012 as contained in Annexure-5.

3. Learned counsel for the petitioner has submitted that firstly the material document referred to the grounds of detention order was not furnished to the petitioner meaning thereby he was prevented from making a representation before the concerned authority prior to passing the detention order. Secondly, the petitioner was already in judicial custody and facing trial and thirdly, prior to passing the order of detention there was no material before the District Magistrate that the petitioner is making efforts to be released on bail.

4. In support of the aforesaid contention, learned counsel for the petitioner has referred to the following decisions:- (i) Anant Sakharam Raut vs. State of Maharashtra, reported in AIR 1987 SC 137. In this case it has been found that there was no mention in the order about the fact that the petitioner was an under trial prisoner. He was arrested in Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 connection with three cases. The applications for bail were pending and that he was released on three successive date in three cases indicates total absence of application of mind on the part of detaining authority while passing the order of detention. (ii) Binod Choudhary vs. State of Bihar & Ors. reported in 2006(2) PLJR 497; in that case it was found that there was no material on the record to satisfy the authorities about the likelihood of the petitioner being released on bail and it was held that the petitioner’s detention was illegal. (iii) Binod Yadav vs. The State of Bihar & Ors. reported in 2007 (Suppl.) PLJR 936. In this case it was found that detenue was not apprised of his right to file a representation against the order of detention before the District Magistrate and as such it was held that the detention of the petitioner was illegal as the State Government was directed to circulate fresh guidelines in view of paragraph 13 to 15 of that decision.

5. Learned counsel for respondents has filed counter affidavits. Counter affidavit (A) has been filed on behalf of respondent nos. 1 and 2 and counter affidavit (B) has been filed on behalf of respondent nos. 3 (District Magistrate).

6. Learned counsel for the State has submitted that detention order was passed by respondent no. 3 on the basis of Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 recommendation made by Superintendent of Police vide Letter No. 3982 dated 12.7.2012 (Annexure-1).The District Magistrate has considered the grounds for detention of the petitioner, thereafter has passed the order of detention vide Memo No. 2486 dated 24.9.2012 and the aforesaid order has been communicated the petitioner vide Memo No. 2487 dated 24.9.2012 (Annexure- A/1) and it has been received by the petitioner through the Superintendent of Jail on 27.9.2012. It is apparent from Annexure- A/1 that the petitioner is involved in as many as 17 cases pending in different police stations in the district of Samastipur and Muzaffarpur and he is a notorious criminal. It is also apparent from the contents of Memo No. 2487 that the petitioner has been making efforts to be released on bail and the public prosecutor has given information the District Magistrate. He has further submitted that after service of detention order and grounds of detention order the petitioner has filed his representation on 9.10.2012 through the Superintendent of Jail, Samastipur which has been sent to the Home Police Department, Bihar Patna, which is apparent vide Letter dated

9.10.2012 (Annexure-B). It has further been submitted that the petitioner has been heard by the Advisory Board on 11.10.2012 and the petitioner was given full opportunity to represent and Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 explain his defence to prove himself innocence. After considering the matter the Advisory Board has found that in the ground of detention several incidents have been mentioned which justified that activities of the detenue (petitioner) are prejudicial to public order and has opined that there are sufficient grounds for detention of the petitioner. Again, the matter was considered by the Government and the Government has been pleased to confirm the detention order No. 2486 dated 24.9.2012 passed by respondent no. 3 vide order dated 30.10.2012 as contained in Annexure 5 to the writ petition. He has further submitted that since the facts and circumstances of this case are different from the facts and circumstances mentioned in the aforesaid cited decisions on behalf of the petitioner and as such they are not applicable in the facts and circumstances of this case.

7. Considering the facts and circumstances stated above, it appears that the contention of learned counsel for the State is correct. In our opinion, the aforesaid decisions cited on behalf of the petitioner are not helpful in the case of the petitioner. It appears from the statement made in supplementary affidavit that 17 cases are pending against the petitioner of serious and heinous nature and several cases are against the public order. There is sufficient material on the record to justify the detention Patna High Court CR. WJC No.465 of 2013 (4) dt.04-07-2013 of the petitioner. We do not find any ground to quash the aforesaid impugned orders and to pass the order for release of the petitioner. Accordingly, this writ application is dismissed. Shyam Kishore Sharma, J :- I agree N. A. F. R. Kanchan/- (Amaresh Kumar Lal, J) (Shyam Kishore Sharma, J)