Lucy Singh v. The State of Bihar

State confirming the detention order dated 19-10-2012 passed by -2- the District Magistrate, Begusarai.

3. It has been contended on behalf of petitioner that the order dated 19-10-2012 passed by District Magistrate on its perusal clearly speaks non-application of mind and on account thereof happens to be an outcome of mechanical scrutiny of the facts for basing its satisfaction leading to order of preventive detention. It has further been argued that the learned District Magistrate was not even aware with the fact whether petitioner stood granted bail in all the case which happens to be the basis of satisfaction nay the District Magistrate had incorporated the fact whether any bail petition was pending on his behalf. In absence thereof, it cannot be construed that petitioner was anxiously proceeding for in getting himself enlarged on bail and on account thereof the observation of the District Magistrate to the effect that petitioner is taking all sincere efforts to get himself released on bail is not at all correct.

4. In likewise manner it has also been contended that there is abnormal delay in disposing of representation of the petitioner at the level of State without having any cogent explanation. So, having the cumulative effect the successive orders passed against the petitioner with regard to his preventive detention and its confirmation are bad. -3-

5. On the other hand, the learned G.P.-17 while sticking with the finding recorded by the learned District Magistrate submitted that after taking into account all the relevant materials justifying preventive detention of the petitioner, the learned District Magistrate passed the same which has been subject to minute scrutiny at all level that means to say at the level of State while approving the detention order, scrutiny by the Advisory Board as well as at the stage of confirming the order by the State. It has further been submitted that there happens to be no delay during course of consideration of representation filed on behalf of petitioner at the level of State. Hence, the prayer made on behalf of petitioner is untenable in the eye of law.

6. As sponsored by the S.P., Begusarai, background of the criminal antecedent of the petitioner as well as his continuing anti-social activities resulting into institution of Barauni (Chakia) P.S. Case No.196/2012, Barauni (Chakia) P.S. Case No.304/2012 as well as relevant sanha entries has been taken into account as justifying ground by the District Magistrate, Begusarai for passing preventive detention of the petitioner vide order dated 19-10-2012 which was approved at the level of State within the stipulated period vide order dated 29-10-2012 and then thereafter passing through Advisory Board lastly the order finds -4- confirmation at the level of State Government vide order dated 27- 11-2012. It has also been averred that during midst thereof representation petition was filed by the petitioner which was taken into consideration at the level of State and was rejected.

7. From the counter affidavit filed on behalf of State (respondent nos.1 and 2) para-11, it has been averred that the representation of the petitioner was placed before the Advisory Board but same is found to be negativated from Annexure-B of the counter affidavit filed on behalf of respondent nos. 1 and 2 which happens to be the letter address to ex officio Secretary of the Advisory Board, Patna High Court, dated 30.10.2012 containing the disclosure with regard to documents sent by the State to be placed before the Advisory Board. After going through the same it is found that conspicuously there happens to be absence of reference of representation filed on behalf of petitioner. Therefore, whatever been disclosed under para-11 of the counter affidavit is found negativated by Annexure-B of the counter affidavit.

8. Whether placement of representation filed on behalf of detenu happens to be mandatory one, for that it looks better to incorporate Section 19 of the Act. “19. Reference to Advisory Board. – Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the Government shall, within three weeks from -5- the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 18, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and n case where the order has been made by the District Magistrate mentioned in sub- section (2) of Section 12 also the report by such officer under sub- section (3) of that section”.

9. That means to say whenever there is representation in terms of Section 17 of the Act, the law requires its placement before the Advisory Board for its proper appreciation which in the facts and circumstances of the case has not been done.

10. Because of the fact that the application of preventive detention though identified under Article 22 of the Constitution, is an exception where under the fundamental right of a citizen is to be seized and on account thereof the law requires following of each and every mandate of law, so prescribed, during consideration thereof. The same also happens to be the finding of the Hon’ble Apex Court in a case of Union of India and Another Versus Chaya Ghoshal (SMT) and Another reported in (2005) 10 SCC 97 and the relevant para happens to be para-15. “15. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday and Kubic Darusz v. Union of India.) But at the same time, a person’s greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described -6- as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of individual liberty. (See Ayya v. State of U.P.) To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State’s security and national economic discipline as a to be administered under strict constitutional necessary evil has restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.

11. Thus, taking into account the totality of the event it is found and held that on account of non-presentation of representation filed on behalf of petitioner before the Advisory Board which was already available at the end of State till then, the mandate of law has been violated and on account thereof, it is difficult to concur with the ultimate successive findings. Accordingly, the successive orders passed by the District Magistrate, Begusarai as well as State is hereby quashed. Petition is allowed.

12. Petitioner is directed to be released forthwith if not wanted in any other case. PN/- (Shyam Kishore Sharma, J.) (Aditya Kumar Trivedi, J.)