Ranjeet Kumar @ Ranjit Bind v. The State Of Bihar

Heard Mr. Ashok Kumar Chaudhary learned counsel appearing on behalf of the petitioner as well as Mr. Prabhu Narayan Sharma, AC to AG. Petitioner has prayed for issuance of Habeas Corpus writ for quashing the order of detention dated 4.6.2012 contained in Memo No. 399 passed by the District Magistrate, Lakhisarai in 1 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 terms of section 12 (2) of the Bihar Control of Crimes Act, 1981 (hereinafter for the brevity referred to as the Act) followed with its approval in terms of section 12 (3) of the Act as well as order of confirmation in terms of section 21 of the Act. The parties have exchanged their pleadings. It has been submitted on behalf of the petitioner that the order dated 4.6.2012 passed by the learned District Magistrate, Lakhisarai on its cursory perusal, gives indication of non- application of mind. It has further been submitted that there is inordinate delay in considering the representation filed on behalf of the petitioner- detenu at the level of the State Government without having any cogent valid reason. So, it has been submitted that these two grounds are sufficient to undo the successive orders having under challenge. Per contra, it has been submitted by Mr. Prabhu Narayan Sharma, AC to AG that initial order dated 4.6.2012 passed by the District Magistrate on account of its approval in terms of section 12 (3) of the Act has merged therewith and on account thereof any deficiency persisting therein will be deemed to be rectified/corrected in terms of section 12 (3) of the Act on the principle of merger. It has further been submitted that when the matter has been referred to the Advisory Board and having 2 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 report therefrom confirmation of the order in terms of section 21 happens to be an additional ground and so, the petitioner detenu would not be entitled to challenge the initial order of detention for want of proper appreciation. It has also been submitted that the order of detention dated 4.6.2012 was served upon the detenu on the same day in spite of that the detenu did not respond in positive manner rather it proceeded leisurely and filed representation on 28.6.2012 which was sent to the State Government by the Jail Superintendent, Lakhisarai vide letter No. 800 dated 29.6.2012 and the same was received on 2.7.2012. There has been further denial (paragraph 6 of the counter affidavit filed on behalf of respondent no. 1) over submission of the representation on 8.6.2012. That means to say that the representation was filed on behalf of detenu after having order of detention dated 4.6.2012 approved on 12.6.2012 as well as having the matter referred to the Advisory Board. It has also been submitted that in terms of section 21 of the Act there was no scope left for the Government to ask for comment from the concerned District Magistrate over the representation filed by detenu but as a precautionary measure and to appreciate the grounds taken up by the detenu in his representation, the Government thought it expedient to call for comment and after 3 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 having the same on record as well as upon duly considered, rejected the representation and confirmed the order of detention. So, it has been submitted that during course of consideration of representation filed on behalf of the detenu at that stage some delay have occurred but the same cannot be consideration because of the fact that order of confirmation in terms of section 21 of the Act was not to be based thereupon rather the same has to be guided by the opinion of the Advisory Board. So, the plea raised on behalf of the petitioner did not at all appreciable. From the order dated 4.6.2012, it is evident that the learned District Magistrate, Lakhisarai had passed the order on being the petitioner an accused (1) Jhajha P.S. Case No. 29 of 2010 under section 392 of the Indian Penal Code, (2) Jhajha Rail P.S. Case No. 34 of 2010 under section 394 of the Indian Penal Code, (3) Lakhisarai P.S. Case No. 499 of 2011 under section 25 (1-B)A, 26/35 of the Arms Act, though also incorporated criminal antecedent of the petitioner to be an accused in Jhajha P.S. Case No. 33 of 2010. Section 2 (d) of the Act identifies the following to be known as antisocial elements:- “2 (d) “Anti-Social element” means an order 4 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 made under section 12; (i) either by himself or as a member of or leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code: or (ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956; (iii) who by words or otherwise promotes or attempts to promote, on grounds of religion, race, language, caste or community or other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language, groups or castes or communities; or (iv) has been found habitually passing indecent remarks to, or teasing women or girls; or (v) who has been convicted of an offence under sections 25, 26, 27, 28 or 29 of the Arms of

1959.” As per section 2 (d) (v), the consideration of cases to be covered under the Arms Act has to be taken up only when there happens recording conviction against accused/antisocial element. Certainly, the order impugned did not specify status of the petitioner to be convicted one. As such, in terms of section 2 (d) (v) reference of Lakhisarai P.S. Case No. 5 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 499 of 2011 would not justify the opinion of the District Magistrate to the extent of considering the petitioner to be antisocial element. This is sufficient to infer non-application of mind to the facts attracting preventive detention as well as also put question mark over authentication of correct way with regard to subjective satisfaction. True it is that by subsequent amendment section 12 (a) has been incorporated to be safeguard upon the order of detention in a way that the aforesaid order should not be declared invalid when it happens to be based upon more than one grounds even if one of the grounds is found wrong and illegal as in that event, each ground has to be viewed independent to other. In the aforesaid background, one may consider that appreciation of the District Magistrate with regard to Lakhisarai P.S. Case No. 499 of 2011 will not encourage upon illegality of the order impugned but certainly this theme is found to be sufficient to scrutinize the process of appreciation of the material having before the District Magistrate while passing the order impugned. Non-appreciation of valid legal ground while passing the order impugned is clear indication of the fact that the process followed by the District Magistrate while arriving at a conclusion justifying the detention of the petitioner, was not at all based under settled norms as well 6 Patna High Court CR. WJC No.946 of 2012 (7) dt.24-01-2013 as without having proper application of mind. Accordingly, the order impugned appears to be bad as well as contrary to the sprit of law. Consequent thereupon the same is set aside, petition is allowed. The petitioner is ordered to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) avin/- 7