Ravi Jha v. The State Of Bihar

Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 3 issuance and enforcement of the detention order. In this regard he has placed reliance on the judgment of the Apex Court in the case of Huidrom Konungjao Singh vs. State of Manipur & ors., reported in (2012)7 SCC 181.

4. Expanding his submission on the aforesaid premises he has submitted that the impugned order of detention refers to only three grounds being pendency of Muffasil P.S.Case No. 350/2010 dated 10.9.2010 under section 392 I.P.C., Muffasil P.S.Case No. 15.2010 dated 15.1.2010 under section 392 I.P.C. and Barauni Refinery P.S.Case No. 45/2011 dated 26.2.2011 under sections 395/412 I.P.C., apart from the previous criminal history of the petitioner in the following eight cases, namely, (i) Matihani P.S.Case No. 2/2010 dated 4.1.2010 under sections 447/384/386 I.P.C. and section 27 of the Arms Act amended under section 394 I.P.C. (ii) Muffasil P.S.Case No. 87/2001 dated 3.4.2001 under section 414 I.P.C. and section 25(1-B)A/26 Arms Act. (iii) Muffasil P.S.Case No. 83/2001 dated 1.4.2001 under sections 392/411 I.P.C. (iv) Muffasil P.S.Case No. 54/2001 dated 2.3.2001 under sections 392/411 I.P.C. (v) Muffasil P.S.Case No. 101/99 dated 23.4.1999 Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 4 under section 25(1-B)A/26/35 of the Arms Act. (vi) Garhpura P.S.Case No. 14/2010 dated 25.3.2010 under sections 386/387/307/506/34 I.P.C. and section 27 of the Arms Act. (vii) Barauni P.S.Case No. 355/2010 dated 10.11.2010 under section 395 I.P.C. (viii) Town P.S.Case No. 295/2011 dated 20.8.2011 under section 25(1-B)A/26/35 of the Arms Act

5. In this regard he has submitted that while in aforesaid all the eight cases cited as criminal antecedents of the petitioner he had already been granted bail and/or had been acquitted, inasmuch as by the judgment of the competent court his acquittal was recorded in Muffasil P.S.Case No. 83/2001, Muffasil P.S.Case No. 54/2001 and Muffasil P.S.Case No. 101/1999, in rest five cases being Matihani P.S.Case No. 2/2010, Muffasil P.S.Case No. 87/2001, Garhpura P.S.Case No. 14/2010, Barauni P.S.Case No. 355/2010 and Nagar P.S.Case No. 295/2011 bail had been granted to him under the orders of the competent court.

6. He has also explained that the three criminal cases constituting grounds on which actually the order of detention was passed even in those cases also the petitioner was released on bail under the orders of the competent Court. According to the learned Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 5 counsel for the petitioner while the petitioner was granted bail in Begusarai Muffasil P.S.Case No. 350/2010 by an order dated

26.3.2012 passed by the Addl. Sessions Judge IV, Begusarai, he had also been granted bail in Begusarai Muffasil P.S.Case No. 15/2010 on 29.9.2010 by the court of Addl. Sessions Judge II, Begusarai and in the third and last case, Begusarai Muffasil P.S.Case No. 45/2011 such bail was granted to the petitioner on

27.2.2012 by the Addl. Sessions Judge V, Begusarai. He has also in this regard invited attention to an order of this Court dated

21.5.2012 in Cr.Misc.No. 19492/2012 wherein he was granted bail in connection with Phulwariya P.S.Case No. 118/2010 lodged under section 394 I.P.C which is a separate case not included in the impugned order of detention.

7. On the basis of these facts learned counsel for the petitioner has submitted that when the petitioner was about to be released from the jail custody on bail on 25.05.2012 in view of the order of this Court dated 21.5.2012 in Cr.Misc.No. 19492/2012, the order of detention dated 25.5.2012 was issued and served on him without disclosing cogent materials for satisfaction of the detaining authority i.e., District Magistrate, Begusarai as to the likelihood of the petitioner being released on bail which in turn would vitiate impugned order of detention and Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 6 consequential confirmatory orders of the Govt. of Bihar dated

29.6.2012 approving such order of detention as also the order dated 29.6.2012 passed by the State Government confirming the order of detention for continuance of his such detention till

24.5.2012.

8. Mr. Vikas Kumar, learned counsel appearing on behalf of the State, on the other hand, having filed the counter affidavits both on behalf of the State Government and the District Magistrate has submitted that the writ application is premature and in fact not maintainable because the petitioner had never filed any representation bringing the aforementioned facts to the notice of the detaining authority and/or the State Government. In this regard he has submitted that a copy of the representation enclosed by the petitioner addressed to the Joint Secretary of Home Department, as contained in Annexure 5, as a matter of fact was never filed as would stand supported from the letter of Jail Superintendent, Begusarai dated 10.9.2012, as contained in Annexure „B‟ to the counter affidavit filed by the District Magistrate, Begusarai stating that after service of the order of detention on the petitioner no representation was filed by him through the jail authorities.

9. He has also submitted that from the history sheet of the petitioner it would be clear that he was a terror in the locality Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 7 necessitating passing of the order of detention by the District Magistrate, Begusarai in exercise of his power under section 12 of the Act to maintain the public order. In this connection he has also stated that the State Government had also approved such order of detention passed by the District Magistrate, Begusarai by an order dated 4.6.2012 whereafter the matter was referred to the Advisory Board under section 19 of the Act on 5.6.2012 and the Advisory Board had heard the petitioner in person on 20.6.2012 and had given its opinion for continuation of detention of the petitioner and on receipt of such opinion of the Advisory Board on 21.6.2012 the order conforming detention of the petitioner was passed by the State Government on 29.6.2012 for his detention till 24.5.2013.

10. Mr. Kumar has also submitted that there would be no difficulty in supporting the impugned order of detention, inasmuch as the District Magistrate, Begusarai in the impugned order dated 25.5.2012 had clearly mentioned that the petitioner was in jail custody and trying for bail which would be sufficient to show application of mind with regard to subjective satisfaction recorded by the District Magistrate, Begusarai, the detaining authority. In this regard he has drawn attention to the order of detention, relevant portion whereof reads as follows: “ Collectorate Begusarai Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 8 (Legal Section) ORDER No. 1261/Legal, Dated 25.5.2012 Whereas I am satisfied that Ravi Jha, S/o Anil Kumar Jha, Village Shahpur, P.S. Mufasil, District Begusarai is an anti-social element and habitual offender and it is necessary to detain him in public interest. As present he is in jail custody and trying for bail. With a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained immediately. Now, therefore, in exercise of power conferred by sub-section 2 of section 12 of the Bihar Control of Crime Act, 1981 (7, 1981) read with the Notification No. 2831 dated 26.3.2012 of the Govt. of Bihar, Home (Police) Department, Patna I hereby direct that the said Ravi Jha be detained. He shall be placed in detention at Begusarai jail and classified as Class 1B and in division-X. Sd/- District Magistrate Begusarai”

11. He has also referred to the main order of detention dated 25.5.2012 for supporting himself that the District Magistrate while passing the order of detention was well aware of the petitioner being in jail custody in connection with Barauni Refinery P.S.Case No. 45/2011 dated 26.2.2011 under sections Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 9 395/412 I.P.C. and when he had also stated that the petitioner was making serious efforts for getting bail in the aforesaid case, it cannot be even remotely suggested that the order passed by the District Magistrate, Begusarai, the detaining authority, lacks subjective satisfaction and for this purpose he has referred to the following passages of the impugned order of detention: “vkns”k csxwljk; ds fcgkj vijk/k fu;a=.k vf/kfu;e 1981 …7] 1981½ dh /kkjk 17 ds vuq”kj.k esa dq[;kr vijk/kdehZ jfo>k firk vfuy dqekj >k] lk0 & “kkgiqj] Fkkuk & eqQfly] ftyk & csxwljk; dks lwfpr fd;k tkrk gS fd mUgsa vkns”k la[;k 1261 @ fof/k] fnukad 25-5-2012 }kjk fuEukafdr vk/kkjksa ij fu:) fd;k x;k gSA iqfyl v/kh{kd] i=kad 3204@lh0vkj0] fnukad 15-5-2012 }kjk izfrosfnr fd;k x;k gS fd dq[;kr vijk/kdehZ jfo >k vijk/kdehZ ,oa ywVsjk gS vijk/k djuk gh mldk eq[; is”kk gSA mlds vkijkf/kd dkjukeksa ls vke tuthou vLr&O;Lr gks x;k gS ,oa mlds Hk; ls {ks= ds yksx vkrafdr gS rFkk viuk tkueky vlqjf{kr eglwl djrs gSA o(cid:217)kZeku esa vijk/kh jfo >k fofHkUu vkijkf/kd dk.Mksa esa U;kf;d vfHkj{kk esa eaMy dkjk] csxwljk; esa dkjk/khu gSA mDr vijk/kh U;kf;d vfHkj{kk esa jgdj Hkh vke yksxksa dks Mjkus] /kedkus ,oa jaxnkjh ds :i esa :i;s ekWxus dk dk;Z djrk gSA vkeyksx mlds Mj ls [kqy dj lkeus cksyus dh fgEer ugha tqVk ikrs gS] ijUrq tuekul esa bl ckr dh ppkZ gS fd ;fn vijk/kh jfo >k tsy ls NqVsxk rks iqu% muyksxksa dk thuk nqyHkZ gks tk;sxkA vijk/kh jfo >k lnj vuqeaMy esa vkrad dk i;kZ; cu pqdk gSA mldh vkijkf/kd lf(cid:216);rk ds dkj.k tuekul ds tkueky ,oa yksdfgr dks [krjk mRiUu gks x;k gSA vijk/kh jfo >k U;k;ky; ls tekur ikus gsrq dkQh iz;kljr gSA vijk/kdehZ jfo >k dks cjkSuh fjQkbZujh Fkkuk Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 10 dk.m la0 45@11 fnukad 26-2-2011 /kkjk 395@412 Hkk0na0fo0 esa fxjQ~rkj dj tsy Hkstk x;k gSA iwoZ vijkf/kd bfrgkl --------- ---------- --------- ----------- fu:)kns”k dk vk/kkj --------- ---------- --------- ----------- vi;qZDr rF;ksa dh foospuk ls ;g Li’V gS fd dq[;kr vijk/kdehZ jfo >k firk vfuy dqekj >k] lk0 “kkgiqj] Fkkuk & eqQfly] ftyk& csxwljk; ds }kjk fujarj vijk/k fd;k tkrk jgk gSA buds }kjk dkfjr vijkf/kd ?kVukvksa ls turk dkQh Hk;(cid:216)kar gSA vk;s fnu lekt esa ;s vijkf/kd ?kVukvksa dks vatke fn;k djrs gSA budh funZ;rkiw.kZ dkjZokbZ ls tuthou =Lr jgrk gSA buds Hk; vke ukxfjd dk “kkafriw.kZ thou esa [kyy iM+rk gS ,oa ckgj ds vijkf/k;ksa dh xfrfof/k cuh jgh gSA lekt esa ;g cnuke ,oa nks’kh pfj= ds O;fDr gSA vr,o budh xfrfof/k ,oa buds d`d`R; ij vadq”k yk;k tkuk furkar vko”;d gSA orZeku esa ;g tsy esa gSA vr% eSa larq’V g¡w fd jfo >k flag ;fn Lora= jgsxsa rks fQj t/kU; vijk/k djsxsa vkSj bl izdkj buds d‘d‘R;ksa ls yksd&O;oLFkk ij izfrdwy izHkko iMs+xkA vr% jfo >k dks lwfpr fd;k tkrk gS fd ftu vk/kkjksa ds v/khu mUgsa fu:) fd;k x;k gS mlds fo:) os viuk vH;kosnu ns ldrs gS ;fn mUgsa dksbZ vH;kosnu nsuk gks rks mls v/kh{kd] eaMy dkjk] csxwljk; ds ek/;e ls ljdkj ds la;qDr lfpo] x‘g …vkj{kh‰ foHkkx] fcgkj] iVuk dks lEcksf/kr djrs gq, mldh ,d izfr bl dk;kZy; dks Hkh Hkstuk lqfuf”pr djsaxsA** (Underlining for emphasis)

12. From the reading of the aforesaid detention order and specially its underlined portion it would be clear that while passing the order of detention the District Magistrate was aware of the petitioner being in jail custody only in connection with Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 11 Barauni Refinery P.S.Case No. 45/2011 dated 26.2.2011 under sections 395/412 I.P.C. in reference of which he had also mentioned that the petitioner was making serious efforts to obtain bail. As with regard to the aforesaid case the petitioner has annexed the order dated 27.2.2012 passed by the Addl. Sessions Judge V, Begusarai from which it becomes clear that the petitioner was in custody in connection with that case with effect from

18.10.2011 and the Addl. Sessions Judge, Begusarai having considered the facts and circumstances of the case as also on perusal of the case diary had granted him bail by his order dated

27.2.2012. It would, therefore, be clear that the order of detention when it had referred to the petitioner making serious efforts to obtain bail in connection with Barauni Refinery P.S. Case No. 45/2011 dated 26.2.2011, that was factually incorrect, inasmuch as the petitioner was already granted bail on 27.2.2012. The very fact that the District Magistrate, Begusarai did not make any enquiry and was not even aware of the aforesaid order dated 27.2.2012 granting bail in Barauni Refinery P.S Case No. 45/2011 would speak of his complete mechanical application of mind if not incompetence. As a matter of fact when he had not even referred to any cogent detail much less bail petition number filed by the petitioner in connection with Barauni Refinery P.S.Case No. Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 12 45/2011 it would only go to show that he had acted mechanically on an incorrect information given by the Superintendent of Police, Begusarai in his letter no. 3204 dated 15.5.2012, inasmuch as it was also expected of the police authorities as also the District Magistrate to make full enquiry as with regard to the status of bail of the petitioner in respect of Barauni Refinery P.S.Case No. 45/2011.

13. From the averments made in paragraph no. 9 and 11 as with regard to status of grant of bail to the petitioner in all the three cases constituting the ground of his detention including Barauni Refinery case no. 45 of 2011 which have also not been controverted in the counter affidavit it would become clear that even when the petitioner was granted bail in connection with Barauni Refinery P.S.Case No. 45/2011 by an order dated

27.2.2012 passed by the Addl. Sessions Judge V, Begusarai, he was not released from the jail custody on account of his being wanted in connection with Phulwariya P.S.Case No. 118/2010 under section 394 I.P.C. As a matter of fact the petitioner was granted bail by this Court by an order dated 21.5.2012 in Cr.Misc.No. 19492/2012 vide Annexure 4 to this writ application. It has to be however kept in mind that there is no reference of Phulwariya P.S.Case No. 118/2010 in the order of detention either Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 13 in the criminal history or in the three grounds and as such, when the District Magistrate was not even aware of the petitioner being accused in Phulwariya P.S.Case No. 118/2010, it cannot be even remotely suggested that when he had referred that the petitioner was trying to get bail he had actually meant this it to be Phulwariya P.S.Case No. 118/2010.

14. There is no difficulty in accepting the submission of the learned counsel for the State that a person in jail custody can be subjected to a detention under the Act. However, in such cases there has to be a clear application of mind and the resultant satisfaction has to be expressed in the order that the detaining authority has reason to believe on the basis of reliable and cogent material that there is a possibility of his being released on bail and after being so released on bail he would be in all probability indulging in prejudicial activities affecting the public order which cannot be prevented save and except without passing the order of detention.

15. Law in this regard has already been settled by the Constitution Bench of the Apex Court in the case of Rameshwar Shaw vs. District Magistrate, Burdwan, reported in AIR 1964 SC 334, wherein it was held as follows: “[12] As an abstract proposition of law, there may not Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 14 be any doubt that Section 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.”

16. The same view was reiterated and also explained by the Supreme Court in the case of Binod Singh vs. District Magistrate, Dhanbad, reported in (1986)4 SCC 416, wherein it was held as follows: “7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various the different statutes dealing with provisions of 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 Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 15 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 freedom of our citizens.” (underlining for emphasis)

17. The question whether a person who is in jail custody can be detained under detention law was also gone into by the Apex Court in an elaborate manner in the case of Dharmendra Suganchand Chelawat v. Union of India, reported in (1990)1 SCC 746, wherein it was held as follows: “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression „compelling reasons‟ in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 16 he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” (underlining for emphasis).

18. The Supreme Court again the case of Kamarunnissa vs. Union of India, reported in (1991)1 SCC 128, while dealing with this very aspect of a person who is in jail had laid down a law in a more elaborate manner wherein it was held as follows: (2) (3) “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; 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 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.” (underlining for emphasis)

19. In the case of Amritlal v. Union Govt., reported in (2001)1 SCC 341, a similar issue had arisen before the Apex Court as the detaining authority in that case had recorded its satisfaction for detention under the National Security Act in view Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 17 of the fact that the person who was already in jail was going to move a bail application. In the ground of detention it has been also mentioned that there was “likelihood of the detenu moving an application for bail” and hence the detention was necessary. The Apex Court however setting such an order of detention had held that there must be cogent materials before the authority passing the detention order that there was likelihood of his release on bail.

20. The aforesaid view in fact remains still a good law as they have been followed without any exception by the Apex Court also in the long line of cases including Rajesh Gulati vs. Govt. of NCT of Delhi & anor., reported in (2002)7 SCC 129, K. Varadharaj vs. State of T.N., reported in (2002)6 SCC 735, Amritlal vs. Union Govt., reported in (2001)1 SCC 341, T.V.Sravanan @ S.A.R.Prasana Venkatachaariar Chaturvei vs. State through Secretary and anor., reported in (2006)2 SCC 664.

21. The Apex Court in the case of A. Geetha v. State of T.N., reported in (2006)7 SCC 603, relying on its earlier judgments had also held as follows: “10. .... that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority.” Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 18

22. In the case of Rekha vs State of Tamil Nadu, reported in 2011 (3) B.B.C.J 289 (S.C) it was held as follows :- “if no bail application was pending and the detenu was already in fact in jail in a criminal case the detention order under the Preventive Detention Law is illegal”.

23. The Apex Court in fact in the aforesaid case of Rekha (supra) had also clarified that there has to be also a full detail about the possibility of bail being granted and in this regard it was held as follows: “11. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail orders in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored.”

24. All these judgments were recently again scanned by the Apex Court in the case of Huidrom Konungjao Singh vs. State of Manipur & ors., reported in (2012)7 SCC 181, and while reiterating the same view it was held as follows: Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 19 “9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fac that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.”

25. In the light of the aforementioned settled position in law when we look to the facts of this case as has already been discussed above, we are satisfied that mere mention of the fact by the District Magistrate in his order that “the petitioner is in jail custody and trying for bail” would be mere ipse dixit of the Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 20 detaining authority. There is infact complete lack of any cogent and reliable material on the basis of which the District Magistrate on 25.05.2012 had recorded his such satisfaction. As noted above, only the case referred by him in the detention order in connection of which the petitioner was said to be in jail custody, was, Barauni Refinery P.S.Case No. 45/2011 but the petitioner had already been granted bail on 27.2.2012 and therefore, his satisfaction recorded in the main order of detention is itself vitiated.

26. We have already indicated above that the petitioner on the date of detention i.e., 25.05.2012 was in jail custody in connection with Phulwariya P.S.Case No. 118/2010 of which there is no even mention in the order of detention and as such, when he was already granted bail in that case by an order of this Court dated 21.5.2012 in Cr.Misc.No. 19492/2012, we will have no difficulty in holding that the satisfaction expressed as with regard to detention of the petitioner already in jail custody did not disclose the cogent and reliable material, inasmuch as the detaining authority, namely, the District Magistrate, Begusarai was not even aware of the fact that the petitioner was in jail custody in connection with Phulwariya P.S.Case No. 118/2010 or had already been granted bail by this Court by an order dated

21.5.2012. Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 21

27. We, therefore, will have no difficulty in holding that the impugned order of detention of the petitioner in absence of cogent materials relating to release of the petitioner on bail lacks the required satisfaction of the detaining authority, namely the District Magistrate and the State Government which has only confirmed the order of detaining authority dated 25.05.2012.

28. We must, however, notice one of the submissions of the learned counsel for the State as with regard to the petitioner not filing a representation to the State Government. The provision for filing of the representation as provided under the Act is an optional clause and it is not necessary for a detenu to file the representation. Mere non-filing of a representation by a detenu cannot justify an illegal order of detention. As indicated above, the Apex Court itself in the case of Huidrom Konungjao Singh (supra) had held that whenever an order of detention of a person in jail custody is questioned it would be the duty of the detaining authority and the competent Government to satisfy the court as with regard to validity of the order of detention. We, therefore, would proceed with the assumption that the petitioner did not file the representation but even then the respondents were under obligation to justify passing of the order of detention.

29. Filing of representation under the Act in fact is an Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 22 additional opportunity extended to the detenu but if a detenu does not avail such an opportunity and straightway approaches this Court by filing a writ petition, his fundamental right under Articles 14, 21 and 22 of the Constitution of India cannot be defeated only on the ground of his not filing a representation under the relevant preventive detention Act. By-now it is well settled that there would be no question of waiver of a fundamental right guaranteed to a citizen under Part III of the Constitution of India. In each and every case of detention under the preventive detention law it is the duty of the State and the detaining authorities to justify the correctness of such order of detention which encroaches upon the fundamental right of freedom of a citizen. We, therefore, will have no difficulty in rejecting the submission of the learned counsel for the State as with regard to maintainability of the writ application on the ground of petitioner not filing the representation before filing this writ application.

30. Thus, having given our anxious consideration to the materials on record as also the submissions of the parties we are of the opinion that the order of detention against the petitioner is bad both on fact and in law and is fit to be set aside.

31. In the result, this writ application is allowed. The impugned order of detention dated 25.5.2012 passed by the Patna High Court CR. WJC No.880 of 2012 (5) dt.12-10-2012 23 District Magistrate, Begusarai, as contained in Annexure 1 and its confirmatory order passed by the State Government dated

29.6.2012, as contained in Annexure 2, are quashed. The petitioner must be released forthwith unless he is wanted in any other case. (Mihir Kumar Jha, J) Surendra/- (Aditya Kumar Trivedi, J)