JITENDRA KUMAR @ BABLOO GOPE v. STATE OF BIHAR & Ors.

on 22.01.2009. The detention order has been issued by the District Magistrate, Patna on 18.01.2010 vide letter no. 151 under the provisions of Section 12(2) of the Bihar Control of Crimes Act, hereinafter referred to as the Act. The detention order was approved by Under Secretary to Govt. of Bihar, Department of Home (Police) on 28.01.2010 and it was served upon the petitioner on 02.02.2010. Same day representation was filed by the petitioner against the detention before the District Magistrate, Patna apprising him about his acquittal in cases which have been included long list of his criminal history for passing the detention order. No order was passed by the District Magistrate on the 3 detention of the petitioner. On 23.03.2010, the Advisory Board was constituted and the detention order passed against the petitioner was placed before the Advisory Board for its opinion. The representation filed by the petitioner on 02.02.2010 remained pending for consideration till 09.03.2010. The State Government finally confirmed the detention order under section 21(1) and 22 of the Act considering the opinion of the Advisory Board. Counsel the petitioner has assailed the order of detention issued under section 12(2) of the Act on the ground that there being no sufficient material before the detaining authority for his subjective satisfaction to this effect that the matter relates to public order and the petitioner is the anti-social element, the detention order to be quashed. The order of 4 confirmation dated 09.03.2010 has been challenged by the petitioner on the ground of delay of his representation and being violative of article 22(5) of the Constitution of India. The detention order was passed by the District Magistrate, Patna taking into consideration cases instituted against the petitioner in past as his criminal history and two criminal cases instituted in the year 2009 as immediate ground for passing detention order. The two cases which have been taken as immediate ground as Fatuha P.S. case no. 133 of 2009 and Fatuha P.S. case no. 134 of 2009. Both instituted on the same day i.e. 14.4.2009. Fatuha P.S. case No. 134 of 2009 was instituted against unknown for offence under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. The name of petitioner was impleaded in this case on the basis of the confessional 5 statement of co-accused Sanni Thakur. The other case i.e. Fatuha P.s. case No. 133 of 2009 relates to offence under Section 307/34 of the Indian Penal Code and 27 of the Arms Act, in which the petitioner has been charge- sheeted. Counsel for the petitioner submits that both the cases which have been taken as ground for passing the detention order by the District Magistrate, Patna could not have been a ground as the facts do not reveal that any of the cases relates to public order. These cases are purely criminal cases for which there was no reason for passing any detention order under Section 12(2) of the Act. These cases could have been considered under the normal procedure of Code of Criminal Procedure. Counsel for the petitioner submits that there being insufficient ground for 6 passing detention order, which is illegal and fit to be quashed. In reply to this, counsel for the State has made general comments in its counter affidavit that the petitioner has a long history and he has been frequently involving himself in criminal cases. There is no specific averment that in fact the offences for which the petitioner has been detained under the Act, relates to public order. There is complete silence in the counter affidavit on this point; as such there is no reason for accepting the statement in the counter affidavit sufficient grounds were available for subjective satisfaction of the District Magistrate, Patna for passing an order of detention. The Apex Court in its reported decisions maintenance of law and order is a conception much wider conception of 7 maintenance of public order. The later is the prevention of this order of grave nature. Every Act that affects law and order need not be public order. Public order is the even tempo of the life of the community taking the country as a whole or even specified locality. Disturbance of public order to be distinguished of the act directing against the individual, which do not disturb the society to the extent of causing a general disturbances of public tranquility. It is the degree of disturbance and its affect on the life of the community of the locality which amount to disturbances of law and order. Since the allegation is mainly individualistic in nature, the requirement under Section 12(2) of the Act is not satisfactory. I find much in the contention of the counsel appearing for the petitioner. 8 The ground taken by the petitioner for challenging the confirmation order is unexplained delay by the respondents in consideration of his representation and its confirmation by the State under Section 21(1) and 22 of the Act. In this regard, there is no specific reply in the counter affidavit. It is settled law that in case of detention of a citizen of a country under Control of Crimes Act, even without a trial, the State is required to display promptness in the disposal of the matter relating to the detention of a person, sought to be detained. The procedural safeguards provided under the Act in order to protect the liberty of the citizen, has to be observed strictly by the authorities. The representation made by the Detenu has to be considered within the statutory time. The respondent authority had to consider the representation of the 9 detenu independently without being guided by any opinion expressed by the Advisory Board. The respondent District Magistrate had no reason to wait for the Advisory Board for consideration of the representation of the petitioner. The petitioner had filed his representation on 2.2.2009. The detention order had been issued on 18.1.2009, served

22.1.2009. The Advisory Board mandatorily to be constituted within three weeks from the date of detention but it was constituted beyond that period on 23.2.2010. In terms of the mandatory requirement under the Act the representation of the petitioner must have been considered and decided within three weeks but it was not done and finally it was confirmed by the State Government, without disposal of petitioner’s representation. It was confirmed by the State under Section 21(1) and 22 of 10 the Act on 9.3.2010. Counsel for the petitioner submits that the detention under Control of Crimes Act is not same as detention under the general criminal law of the land in case of facing the trial and being convicted for the offence. The provision under the Crimes Control Act special provision distinguishable from detention in connection with a general criminal cases. Considering this it has been decided by the High Court and Supreme Court in catena of decisions that each and every provision under the Act must be observed with full seriousness and discipline. That has not been done in the present case. There is lacuna in passing detention order as well as its confirmation by the State Government; as such we are of the the detention order is not sustainable. 11 The impugned

18.1.2010 vide letter no. 151 issued by the District Magistrate, Patna under section 12(2) of the Bihar Control of Crimes Act and its confirmation by the State Government dated 9.3.2010 vide letter No.7/COA-103/10 H (P)1950, are quashed. The writ application stands allowed. (Mridula Mishra,J.) (Dharnidhar Jha,J.) A.Kumar