Butan Sharma @ Butan Singh v. The State of Bihar

Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 2 terms of Sections 21, 22 of the Act confirming the order dated

25.05.2012. Exposing the criminal antecedent of the petitioner as well as his nefarious activities during the period whereunder he was enjoying privilege of bail, the S.P. Arwal had reported the matter to the District Magistrate for keeping the petitioner under preventive detention in the background of the fact that in case he obtains bail, the public order and safety will be at stake. Being subjectly satisfied therewith, the District Magistrate passed the order of preventive detention on 25.05.2012 which got approval on 31.05.2012 and confirmation on 29.06.2012 after having concurrence at the end of advisory board. It has been submitted on behalf of petitioner that he has been targeted by the administration since long and anyhow administration is bent upon to keep the petitioner behind bar. In the year 2008 the petitioner had faced similar treatment against which CR.WJC No. 768 of 2008 was filed and the same was allowed by order dated 23rd September, 2008. Again the petitioner has been subjected to face similar sequence which was brought under challenge under CR.WJC No. 193 of 2011 and the same was allowed vide order dated 20th May, 2011 and this happens to be the third attempt of the administration to keep the petitioner under preventive detention on those grounds which were subject matter Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 3 of CR.WJC No. 193 of 2011. Which, by having allowed, nullified the same. It has also been submitted that on 25.05.2012, the day of passing of preventive detention order, the detaining authority that means to say the District Magistrate, Arwal, was well aware of the fact that petitioner was under custody but he did not care to incorporate nor there happens to be a definite/conclusive finding at his end that petitioner was taking all sincere efforts to get himself bailed out justify the application of preventive detention. So, in absence thereof the mandate of law has been violated. At the other hand the learned Standing Counsel submitted that it is not necessary for the detaining authority to incorporate the fact that the petitioner was taking all sincere efforts to get himself bailed out in the order impugned because of the fact that the order impugned happens to be based upon the facts placed by the S.P. Arwal, the sponsoring authority leading to subjectly satisfaction. Once the averment is there in the report then in that situation, incorporating the fact in the order is not sine qua non. It has also been pleaded that subjective satisfaction of the detaining authority happens to be out of purview of judicial arena and as such cannot be challenged unless and until some sort Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 4 of malafide is found to be apparent or so alleged. Therefore, in normal phenomena the subjective satisfaction of the detaining authority cannot be put under challenge. It has also been submitted that taking into account the criminal history of the petitioner as well as indulgence in anti- social activities whenever remains outside as is apparent from the police report, continuance of the order impugned is found to be fully justified. So, instant petition should be rejected at its threshold. Now, referring the earlier two order passed at an earlier occasion, it has been submitted that CR.WJC No. 768 of 2008 was allowed only on account of violation of Section 17 of the Act having the order of detention and grounds thereof served upon the petitioner beyond statutory period while CR.WJC No. 193 of 2011 was allowed on account of delay during consideration of the representation filed on behalf of the petitioner. Therefore, the grounds over which the orders were passed still survive and that can be taken into account and rightly been taken into account while passing the order impugned. Hence, it is submission of the learned Standing Counsel that the order impugned needs no interference. Preventive detention is a precautionary measure by Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 5 which the activities of the detenue is forbidden in case it happens to be prejudicial to the interest of State. Therefore its applicability has been found to be permissible in accordance with the mandate of Part –III of the Constitution but with some rigour and the rigour so prescribed, has to be followed in its true sense and spirit. Preventive detention can be passed against a person remaining outside as well as having under custody. There happens to be no difference in between while exercising the application of preventive detention. However, the persons having under judicial custody and in case is found to be continuing with the same has been taken into account by the Hon’ble Apex Court at an earlier occasion and time to time explained the methodology to be adopted for that purpose. All those decisions have recently been taken into consideration in a case G. Reddeiah V. Govt. of Andhra Pradesh and Others reported in 2012 (2) SCC page 389 – Para-11- “The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. Even, as early as in 1975, a Constitution Bench of this Court considered the procedures to be followed in view of Articles 19 and 21 of the Constitution. In Haradhan Saha v. State of W.B.(1975) 3 SCC 195, a Constitution Bench of this Court, on going through the order of preventive detention under the Maintenance of Internal Security Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 6 Act, 1971 laid down various principles which are as follows: (SCC p. 209, para 34) “34. … First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate [sic.] the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.” Para-16- “The incident relating to the procedure to be adopted in case the detenu is already in custody has been dealt Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 7 with in several cases. In Union of India v. Paul Manickam (2003) 8 SCC 342 this Court has held as under: (SCC pp. 352-53, para 14) “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 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. …The point was gone into detail in Kamarunnissa v. Union of India Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 8 (1991) 1 SCC 128. 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 released on bail.” Para-17- “It is clear that if the detaining authority was aware of the relevant fact, namely, that the detenu was under custody from 9-10-2010 and he would be released or likely to be released or as in this case released on 10-11-2010 and if an order is passed after due satisfaction in that regard, undoubtedly, the order would be valid. Before answering this point, Mr. R. Sundaravardan, learned Senior Counsel for the State has brought to our notice that the said objection was neither raised before the Advisory Board nor in the representation to the Government and was not mentioned in the grounds of challenge and argued before the High Court. He also pointed out that even before this Court, this ground was not raised in the special leave petition.” In the aforesaid background, when the order Patna High Court CR. WJC No.73 of 2013 (8) dt.14-05-2013 9 impugned has been gone through it is evident that the learned detaining authority in spite of being well aware with the fact that petitioner was under going custody in connection with Karpi P.S. Case No. 88 of 2011 failed to acknowledge the fact whether petitioner was taking all sincere efforts to get himself enlarge on bail. At this juncture the prayer of the learned Standing Counsel that the police report does contain the relevant averment, will not justify continuance of the order impugned because of the fact that it is the detaining authority who has to satisfy himself and not the S.P. or any other sponsoring authority. By having such lapses on the part of the detaining authority, certainly mandates of the law has been violated and on account thereof, the successive orders under challenge would not justify its continuance. Consequent thereupon the same are set aside. Petition is allowed. The petitioner is directed to be released forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) KKSINHA/- (Aditya Kumar Trivedi, J.)