Rama Nand v. The State of Bihar

Judgment

1. 2. 3. .... .... Respondent/s ====================================================== Appearance: For the Petitioner/s : Mr. Kamal Kishore Jha, Adv. For the Respondent/s : Mr. Vikash Kumar, AC to AG. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)

14. 10-04-2013 Petitioner has challenged order of detention dated

22.08.2012 passed by District Magistrate / Detaining Authority, Monghyar in accordance with Section 12(2) of Bihar Control of Crimes Act (for brevity act) as well as its approval in terms of Section 12(3) of the Act at the level of State dated 29.08.2012 and order dated

03.10.2012 at the level of the State confirming the order of detention in terms of Section 21(1), 22 of the Act.

2. During course of continuance of petitioner being under custody in connection with Bariyarpur P.S. Case No.118 of 2011, the Sponsoring Authority (S.P., Munger) placed relevant information before the Detaining Authority on account of which after initiation of case no.2/12-13 an objection was invited which was served upon petitioner through Jail Superintendent and after having -2- the objection at the end of petitioner and further taking into account the contents thereof in consonance with the chequered criminal history as well as having previously detained for a period of

25.09.2010 to 24.09.2011 in connection with case no.3/10-11 and on being released subsequently indulgence in murder on 06.12.2012 on account of which Bariyarpur P.S. Case No.118 of 2011 was instituted and further coming to know about that petitioner is taking sincere effort to be bailed out and along with consideration of surrounding circumstances coupled with the fact that release of the petitioner will be at the cost of public order as well as will also indulge in nefarious activities after being released on bail and on being subjectily satisfied passed an order of Preventive Detention on 22.08.2012 which was properly served upon the petitioner. The aforesaid preventive detention order was approved at the level of the State vide order dated

29.08.2012 which was also communicated. Petitioner was given liberty to file representation if he so desires. During midst thereof on 04-09-2012 the matter was placed before Advisory Board. Subsequently thereof petitioner’s representation was received on 11- 09-2012 over which comment was sought for from the District Magistrate, Munger which was also received by the concerned Department on 17-09-2012. On 20-09-2012 the Advisory Board convening its meeting wherein representation of the petitioner was also placed and after considering the materials, the Advisory Board opined presence of sufficient material for confirmation whereupon -3- initial order of detention dated 22.08.2012 was confirmed on

03.10.2012. During midst thereof, it is also evident that representation of the petitioner was considered and rejected on 25.09.2012 which too was served.

3. It has been contended on behalf of petitioner that the initial detention order passed by the District Magistrate, Munger dated

22.08.2012 clearly shows non-application of mind because of the fact that the same lacks with the factual aspect i.e. in which case petitioner happens to be under custody and whether any steps was taken by the petition for getting bail. It has further been submitted that there happens to be inordinate delay in consideration of representation filed on behalf of petitioner without cogent and reasonable explanation. It has also been submitted that petitioner had already been acquitted vide judgment dated 22.09.2012 in Bariyarpur P.S. Case No.118 of

2011. So the sole ground used as basis of satisfaction no more exists. As such, petitioner has been illegally detained at the hands of respondents. Therefore, the successive orders are fit to be set aside.

4. On the other hand, the learned A.C. to A.G. referring the initial order dated 22.08.2012 submitted that the detaining authority was well aware with the fact that petitioner happens to be under custody and further he was trying to get bail. The detaining authority in the background of status of the petitioner being habitual offender as well as even after release from previous preventive detention, indulged in subsequent criminal activity causing murder for -4- which Bariyarpur P.S. Case No.118 of 2011 was registered and so acknowledging and perceiving his conduct to be deterrent relating to public order after his release had subjectively satisfied himself on this very score and then passed the order of preventive detention vide order dated 22.8.2012. As such neither there happens to be any lacuna nor violation to procedural law while passing the order of preventive detention dated 22.08.2012 which was subsequently approved as well as confirmed at the end of State after getting opinion of the Advisory Board, which, during course thereof had also considered representation filed on behalf of petitioner along with other relevant document including personal hearing of the petitioner.

5. While a detenu being under custody could also be put under preventive detention which had already stood adjudicated upon by a constitution bench in a case Rameshwar Shaw, vs. District Magistrate, Burdwan, reported in AIR 1964 SC 334. “[12] As abstract proposition of law, there may not be any doubt that S. 3 (1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. …Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.”

6. The same view with certain limitations to be followed up by the detaining authority was endorsed in the case of Binod Singh vs. District Magistrate, Dhanbad, reported in (1986) 4 SCC 416. “7. It is well settled in our constitutional framework that the power of -5- directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.”

7. Again the matter came up before the Hon’ble Apex Court in Kamarunnissa vs. Union of India, reported in (1991) 1 SCC 128, wherein certain guidelines were prescribed to be followed by the detaining authority while passing order of preventive detention against detenu being under custody. “13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court.”

8. Again the issue has been dealt with by the Hon’ble Apex Court in a case Union of India v. Paul Manickam reported in (2003) 8 SCC 342 wherein it has been held: “14. … Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their -6- mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. and Dharmendra Suganchand Chelawat v. Union of India.) The point was gone into detail in Kamarunnissa v. Union of India. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail.”

9. That means to say from the aforesaid judicial verdict, it is apparent that if the detaining authority while passing the order of preventive detention was aware of the relevant fact that the detenu was in custody and he would be released or likely to be released and if an order is passed after due satisfaction in that regard, undoubtedly the order appears to be valid on account of having complied with the mandate of law as laid down time-to-time so referred herein before.

10. From the order impugned, it is evident that the -7- learned detaining authority while passing the order dated 22.08.2011 took the relevant fact to his notice while forming subjective satisfaction and that happens to be on the basis of the report submitted by the Sponsoring Authority.

11. In a case G. Reddeiah vs. Government of Andhra Pradesh reported in (2012) 2 SCC 389 the Hon’ble Apex Court had dealt with the matter in following way: “20. The grounds of detention running into 60 pages and the order of detention to 5 pages clearly demonstrate various details about the involvement of the detenu violating the provisions of IPC, the A.P. Act and the Rules. The details furnished in the grounds of detention clearly show the application of mind on the part of the detaining authority. It is not the case of the detenu or the appellant that the required relevant and relied-on materials have not been furnished which prevented him from making an effective representation to the Government. The detailed report of the Inspector of Police and the sponsoring authority clearly show that the detenu was a mastermind in organising the felling of red sanders trees owned by the Government and also providing vehicles for illegally transporting the red sanders wood, hiring of labourers from the fringe forest villages and responsible for destruction of valuable governmental property. It also shows that it was he who operated a gang for destruction of the national wealth causing deforestation leading to ecological imbalance affecting the community as a whole.

21. The grounds of detention also show that the detaining authority, after scrutinising all the details including various orders of arrest and release, bail on various dates and noting that he is habitually indulging in trespass in forest area, illicit cutting, felling, smuggling and transporting of red sanders wood from the reserved forest owned by the State, arrived at a definite conclusion that the provisions of normal law were not sufficient in the ordinary course to deal firmly because of his habitual nature and after satisfying all aspects including the fact that the detenu was in jail from 9-10-2010 to 10-11-2010 and the factum of release from the jail in 4 criminal cases, passed an order of detention with a view to prevent him from further indulging in such offences.

22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order. Once the detaining authority is subjectively satisfied about the various offences labelled against the detenu, habituality in continuing the same, difficult to control him under the normal circumstances, he is free to pass an appropriate order under Section 3 of the 1986 Act by fulfilling the conditions stated therein. We have already concluded that there is no infirmity either in the reasonings of the detaining authority or the procedure followed by it. We are also satisfied that the detenu was afforded adequate opportunity at every stage and there is no violation of any of the -8- safeguards. In these circumstances, we reject the contention raised by the learned Senior Counsel for the appellant”

12. Now coming over plea of representation. It is an admitted fact that the representation was received on 11.09.2012 over which a comment was sought for from the detaining authority which was received on 17-09-2012 at the end of State and then the same was placed before Advisory Board which concluded its meeting of

20.09.2012 and then the matter was considered and was rejected on

29.09.2012. From para-9 of the counter affidavit filed on behalf of State which has not been controverted at the end of petitioner detail of day-to-day affair over consideration of representation filed on behalf of petitioner has been mentioned and it was ultimately rejected on

26.09.2012.

13. Neither under Article 22(5) of the constitution of India nor under Bihar Control of Crimes Act any time frame has been prescribed for consideration of representation but as by having the preventive detention order an embargo is put over the detenu from enjoying the fundamental right guaranteed under constitution, hence it was expedient at the proper level to consider and decide the representation filed on behalf of detenu at an earliest without any undue delay so that fervour of arbitrariness, callousness, slackness on the part of the competent authority should not visualize. The delay, whatever tenure may be found unexplained, then in that event, the same could be treated as good ground for revocation of preventive -9- detention order. In case the delay in consideration of representation filed by the detenu is found to be properly explained then in that event it should not adversely affect upon preventive detention order.

14. In a case K.M. Abdulla Kunhi and B.L. Abdul Khander vs. Union of India & Ors., reported in (1991) 1 SCC 476, it has been held: “12. ………there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.”

15. From para-9 of the counter affidavit filed on behalf of respondent no.1 and 2 as referred above, it is apparent that the State had already explained the time so consumed at their end during course of consideration of representation which has not been controverted by the petitioner. Thus, in the backdrop of aforesaid discussions instant petition is found to be devoid of merit. Consequent thereupon is dismissed. (Aditya Kumar Trivedi, J.) (Shyam Kishore Sharma, J.) (Shyam Kishore Sharma) I agree Patna High Court Dated, the 10th day of April, 2013 Prakash Narayan /A.F.R.