Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No.257 of 2013 ====================================================== Dilip Kumar Singh @ Dilip Singh, Son of Rajeshwar Prasad Singh, Resident of Village – Singhia, P.S. – Singhia, District – Samastipur. .... .... Petitioner. Versus 1. The State of Bihar Through The Principal Secretary, Home(Police) Govt. Of Bihar, Patna 2. The Under Secretary, Home (Police) Govt. of Bihar, Patna 3. The District Magistrate, Samastipur. 4. Supdt. of Police, Samastipur. 5. Dy. Suptd. of Police, Rosera 6. Superintendent of Jail, Sub-Jail Rosera 7. Superintendent of Mandal Kara, Madhubani .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. N.K. Agrawal, Senior Advocate. Mr. Vijay Anand, Advocate. : Mr. Prabhu Narayan Sharma, J.C. to A.G. For the Respondent ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) 7 14-05-2013 Heard learned Counsel for the petitioner as well as learned J.C. to A.G. The petitioner, on account of having under preventive detention vide order dated 28.06.2012 passed in terms of Section 12 (2) of the Bihar Control of Crimes Act (henceforth used as an ‘Act’) subsequently approved in terms of Section 12(3) of the Act vide order dated 05.07.2012 at the end of the State Government as
Legal Reasoning
well as its confirmation vide order dated 31.07.2012 in terms of Section 21, 22 of the Act, has challenged the validity of the successive orders by filing instant petition of habeas corpus. Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 2 It is needless to say that on an information furnished by the S.P., Samastipur divulging the criminal antecedent of the petitioner along with the fact that being under custody he is running pillar to post to get himself bailed out and further in case he is bailed out his presence will be prejudicial to the public safety and order, the District Magistrate, being subjectly satisfied therewith, passed the order of detention in terms of Section 12 (2) of the Act vide order dated 28.06.2012 and the same happens to be confirmed in terms of Section 12 (3) of the Act on 05.07.2012. After having concurrence at the end of Advisory Board on 19.07.2012, the State Government confirmed in terms of Section 21 as well as 22 of the Act on 31.07.2012. On behalf of petitioner it has been submitted that the respondents have played dubious role during course of passing of the successive orders so that, anyhow, petitioner be illegally detained and for that they have prepared so many documents which, after having the counter affidavit available on the record exposes its creation. It has further been submitted that much before passing of the order impugned dated 28.06.2012 petitioner was already transferred to Madhubani jail. From the own document of the respondents coupled with counter affidavit filed on behalf of respondents nos. 6 and 7, it is evident that petitioner Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 3 was transferred and his entry at district jail Madhubani was recorded on 16.05.2012. In the aforesaid background, it has been submitted that as the order dated 28.06.2012 was not at all served upon the petitioner therefore he could not be able to file representation and on account thereof, his detention happens to be in utter violation of Section 17 of the Act. At the other hand the learned J.C. to A.G. submitted that it is an admitted fact that petitioner was already transferred from sub jail Rosera to district jail Madhubani on 16.05.2012. It has further been submitted that the order dated 28.06.2012 had already been served upon petitioner on 30.06.2012 and as he failed to file representation therefore he has taken a plea that he was not at all served with the copy of the order of the detention dated 28.06.2012. He has also referred Annexure-C which shows signature of petitioner in token of receipt of the order. Hence, the prayer is that petitioner has got no leg to stand by consequent thereupon petition is fit to be rejected. In the background of the admitted fact that petitioner was languishing at district jail Madhubani since 16.05.2012, the genuineness of Annexure-C has become in doubt on account of the fact that it contains the seal of superintendent sub jail, Rosera dated 30.06.2012. When the petitioner was not at all at sub jail, Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 4 Rosera on 30.06.2012 and when a copy of the order was received by the Superintendent sub jail, Rosera on 30.06.2012 then really it looks a mysterious situation how was the petitioner able to receive copy of the order of the detention dated 28.06.2012 to 30.06.2012. At this moment the learned J.C. to A.G. submits that the order was served through Superintendent district jail, Madhubani and a copy thereof was furnish to Superintendent sub jail, Rosera by the Superintendent district jail, Madhubani. The aforesaid contention is neither found supported with any document nor the counter affidavit sworn by respondent no. 7 Superintendent district jail, Madhubani confirming the same. For better appreciation the relevant para of counter affidavit sworn by respondent no. 7 is quoted below: “05. That it is stated that the detenue petitioner Dilip Kumar Singh was brought under the aforesaid case was brought to the District jail, Madhubani under the orders of Learned Chief Judicial Magistrate, Madhubani on 16.05.2012 in which he was remanded since then he was lying in the District Jail, Madhubani. 06. That it is stated that the detention order passed by the District Magistrate, Samastipur was served through Superintendent of Police, Samastipur was serving the same to the detenue in terms of requirement of law and accordingly the said copy of the order served upon to the detenue on Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 5 30.06.2012. 07. That it is further stated that from perusal of copy of the order was handed over to the deponent it would be apparent that one copy of the said order was also served to Superintendent Sub-Jail, Rosera on 30.06.2012. 08. That from the fact stated above it is submitted that present writ application has no merit and fit to be dismissed. Side by side it also looks pertinent to state the averments of the counter affidavit sworn on behalf of respondent no. 6 and relevant para happens to be para 6 – 7. “06. That it is stated that the detenue originally was brought to the Sub-Jail, Rosera in connection with Harthouri (Shiv Nagar) P.S. Case No. 24/12 on 26.04.2012 and thereafter in another case having been registered against him under the same police station being P.S. Case No. 28/12 the said detenue again taken into custody in connection with second case dated 9.05.2012 and further on remand order having been issued by learned Chief Judicial Magistrate, connection with Madhubani P.S. Case No. 158/2012. The said detenue was transfer to Madhubani District Jail on 16.05.2012 thereafter and he is lying in District Jail, Madhubani. 07. That it is stated that the order of detention issued by District Magistrate, Samastipur as contained in memo no. 1583 dated 26.06.2012 a copy of which was also served to the Superintendent Sub-Jail, Rosera through Superintendent of Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 6 Police, Samastipur on 30.06.2012.” Thus, after having analytical approach of the documents Annexure-C in consonance with the averments of the counter affidavit filed on behalf of respondent nos. 6, 7 respectively it is found that the assertion of the State that petitioner was served with the order of detention on 30.06.2012 appears to be doubtful. The aforesaid facts is further found supported with para-4 of the counter affidavit filed on behalf of respondent nos. 1 and 2 wherein there happens to be specific admission that the order of detention dated 28.06.2012 was served upon petitioner through the Superintendent of sub jail, Rosera on 30.06.2012. For better appreciation para-4 of the counter affidavit filed on behalf of respondent nos. 1 and 2 is incorporated below: 04. That the aforesaid detention order alongwith the ground of detention has been served upon the petitioner through the Superintendent of Sub Jail, Rosera on 30.06.2012 and thus conflicting stand taken on behalf of State it is apparent that service of order of detention along with its grounds become subject to seldom acceptance and in the aforesaid background, the finding of the Advisory Board that the order of detention along with the ground dated 28.06.2012 was served upon the detenue on 30.06.2012 appears to be full of spell. After having parallel scrutiny of the document so annexed, Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 7 the contents of the counter affidavit of the respective respondents it is crystal clear that the detention order dated 28.06.2012 along with the grounds of detention was not ever served upon the petitioner on 30.06.2012 as claimed by the respondents. As per Article 22 sub-clause 5 of the Constitution of India, it is an obligation on the part of the detaining authority to communicate the order of detention along with the grounds justifying preventive detention upon the detenue as early as possible which has further been explained under Section 17 of the Act which runs as : “17. Grounds of order of detention to be disclosed to person affected by the order. – (1). When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government. (2). Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.” Because of the fact that no detention order along with Patna High Court CR. WJC No.257 of 2013 (7) dt.14-05-2013 8 the grounds had ever been served upon the petitioner therefore the order of detention happens to be bad in law. Consequent thereupon of the successive orders are set aside. Petition is allowed. Petitioner is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) KKSINHA/- (Aditya Kumar Trivedi, J.)