Patna High Court
Surendra Singh @ Doctor vs State Of Bihar And Ors. on 1 September, 2005
Equivalent citations: 2005(3)BLJR2030
Author: V.N. Sinha
Bench: V.N. Sinha
ORDER V.N. Sinha, J.
1. Heard learned counsel for the petitioner and the State.
2. Petitioner, who on the relevant date i.e. 13/15.1.2005 was lodged in Adarsh Central Jail, Beur, Patna, has filed this writ application questioning the correctness and validity of the order No. 16 dated 13.1.2005, Annexure-1 to this application,.passed by the District Magistrate, Begusarai, whereunder he has been detained in terms of the provisions contained in Sub-section (2) of Section 12 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as 'the Act'). He has further questioned the correctness and validity of the order dated 22.1.2005, as contained in Memo No. 143 dated 22.1.2005, Annexure-4 to this application, whereunder his detention has been approved by the State Government in terms of the power conferred under Sub-section (3) of Section 12 of the Act.
3. The ground of challenge raised against the aforesaid two orders in the writ application as also during the submission made before this Court is that the two orders have been passed contrary to the provisions contained in sub-clause (5) of Article 22 of the Constitution of India as also Section 17 of the Act, which, inter alia, provides that when a person is detained, pursuant to an order passed under the Act, the authority making the order should, as soon as may be, communicate to the detenue the grounds on which he has been detained and the authority should also afford the detenue the earliest opportunity of making representation against the detention order. The further ground of challenge raised against the two impugned orders is that from facts pleaded in the writ petition and admitted in the counter affidavits, it would appear that the two impugned orders are reminiscent of non-application of mind by the detaining authority as also by the State Government.
4. In support of the aforesaid submission, Sri Rana Pratap-Singh, learned Senior Advocate has invited our attention to the averments made in the writ application, the two counter affidavits filed on behalf of the State Government and the detaining authority as also to the rejoinder filed by the petitioner together with the Annexures appended thereto. With reference to the statement made in paragraph Nos. 7 and 8 of the counter affidavit, affirmed on behalf of the State Government by Sri Adalat Singh, Deputy Secretary to the Government in the Home (Police) Department, it has been submitted by the learned counsel for the petitioner that petitioner was taken in custody in connection with Teghra P.S. Case Nos. 66 of 2003 and 200 of 2004 on 31.7.2004 and was lodged in District Jail, Begusarai, wherefrom he was transferred to Adarsh Central Jail, Beur, Patna on 29.11.2004, while petitioner remained lodged at Adarsh Central jail, Beur, Patna on 15.1.2005 he was served with the detention order, bearing letter No. 16 dated 13.1.2005, Annexure-1 to this application, perusal whereof indicates that the petitioner was directed to be detained at Begusarai District Jail and for ensuring compliance of the said order, the same was forwarded in quadruplicate to the Superintendent of District Jail, Begusarai as is evident from the Hindi translation of the order bearing Letter No. 16 dated 13.1.2005, as contained in Annexure-1/A to the counter affidavit duly affirmed by Sri Rakesh Kumar Singh, Deputy Collector, Incharge of Legal Section, Begusarai filed on behalf of the detaining authority. It further appears from perusal of the detention order, bearing Letter No. 16 dated 13.1.2005, as contained in Annexures-1 and 1/A that one of the four copies of the detention order was to be used as custody warrant for the detention of the petitioner in the Begusarai District Jail. On 18.1.2005, while the petitioner remained lodged in Adarsh Central Jail, Beur, Patna, he was served with another Letter, bearing Memo No. 23/legal . dated 15.1.2005, Annexure-2 to this application which contained the grounds in support of the detention order, bearing Memo No. 16 dated 13.1.2005, Annexure-1. In the last paragraph of the said order dated 15.1.2005, Annexures-2 and 1-B, the petitioner was further informed that if the petitioner desires to make any representation against the grounds of his detention, then he should address the representation to the Joint Secretary, Home (Police) Department through the Superintendent of District Jail, Begusarai. While the petitioner remained lodged at Adarsh Central Jail, Beur, Patna and had no opportunity to file representation against the grounds of detention dated 15.1.2005, Annexures-2 and 1-B through the Superintendent of District Jail, Begusarai, the State Government confirmed his detention in terms of the provisions of Sub-section (3) of Section 12 of the Act and issued order dated 22.1.2005, as contained in Memo. No. 143 dated 22.1.2005, Annexure-4 to this application issued under the signature of the Deputy Secretary to the Government in the Home (Police) Department, which was served on the petitioner in the Adarsh Central Jail, Beur, Patna on 12.2.2005. Perusal of the said confirmation order also indicates that the same was forwarded in triplicate to the Superintendent of District Jail, Begusarai for immediate service on the petitioner with direction to the petitioner that if he so desires, he may file representation against the detention order in the Home (Police) Department. The Superintendent of District Jail, Begusarai was directed to send such representation to the State Governmentand the concerned District Magistrate immediately through the special messenger. It appears in between issue of the confirmation order dated 22.1.2005 and its service on the petitioner on 12.2.2005 petitioner was produced before the Advisory Board on 10.2.2005 and the Board was pleased to further confirmed his detention as in the opinion of the Board there was sufficient grounds to detain him.
5. Learned counsel for the petitioner, with reference to the aforesaid facts and the instructions contained in the order dated 15.1.2005, Annexures-2 and 1-B as also the confirmation order dated 22.1.2005, Annexure-4, submitted that in terms of those orders petitioner was instructed to address his representation to the Joint Secretary, Home (Police) Department through the Superintendent of District Jail Begusarai and as the petitioner remained lodged at Adarsh Central Jail, Beur, Patna, he had no opportunity to file his representation against the grounds of the detention dated 15.1.2005 and the confirmation order dated 22.1.2005 and detention of the petitioner is violative of Sub-clause (5) of the Article 22 of the Constitution of India and Section 17 of the Act, which inter alia, mandates that the detenue shall be afforded the earliest opportunity of making the representation against the detention order and the grounds of detention. In the instant case, petitioner remained lodged in the Adarsh Central Jail, Beur, Patna and had no opportunity to file his representation against the detention order and the grounds of detention as he had no opportunity to file the representation through the Superintendent of District Jail, Begusarai so submitted the learned counsel for the petitioner and according to him on this ground alone the detention order dated 13.1.2005, Annexure-1 as also the confirmation order dated 22.1.2005, Annexure-4 should be quashed.
6. He further submitted that from the impugned orders and the order communicating the grounds of detention, it appears that the detaining authority was not even aware about the state of affairs as regards the petitioner, as detaining authority had no information about the place of lodgement of the petitioner, which according to the learned counsel for the petitioner indicates non-application of mind by the detaining authority.
7. In support of the aforesaid two submissions the learned counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court rendered in the case of Lallubhai Jogibhai Patel v. Union of India and Ors., to emphasize the point that the mandate contained in sub-clause (5) of Article 22 of the Constitution of India should be communicated to the petitioner with utmost expedition and if there is any laxity on the part of the authorities in permitting the petitioner to avail his rights under Sub-clause (5) of Article 22 of the Constitution of India in matters of preventive detention then the detention order should be quashed.
8. On the other hand, learned counsel for the State, Sri Amarnath Singh, S.C. 8 submitted, with reference to the two counter affidavits filed on behalf of the State Government and the detaining authority that if the petitioner was so inclined to file representation against the detention order and the grounds, of detention, he could have availed the opportunity and filed the same through the Superintendent of Adarsh Central Jail, Beur Patna, but it does not appear either from the writ application or from the rejoinder affidavit that petitioner ever made any attempt to file any such representation. In this connection, he further submitted that in any case petitioner was shifted to Begusarai District Jail on 9.7.2005 and thereafter he should have availed the opportunity and should have filed the representation through the Superintendent of District Jail, Begusarai, but he having not filed any such representation, the ground that he had no opportunity to file the representation until he was shifted to Begusarai District Jail should be rejected.
9. In regard to the other submission of the learned counsel for the petitioner that the detaining authority was not aware of the place of custody of the petitioner, which indicates non-application of mind at the instance of the detaining authority, learned State counsel, Sri Amarnath Singh, SC 8 submitted that while passing the detention order, the detaining authority in only required to consider the sufficiency of the grounds of detention as also the fact as to whether the detenue is behind the bars and is likely to be released on bail or is roaming at will. According to him, it is not necessary for the detaining authority to be aware of the place of custody of the detenue on the date of issue of the detention order and the grounds of detention.
10. Having heard learned counsel for the parties and having appreciated the import of the aforesaid submissions, I am of the view that the detention order and the order confirming the detention dated 13.1.2005 and 22.1.2005, Annexures-1, 1/A and 4 respectively is violative of the provisions contained in Sub-clause (5) of Article 22 of the Constitution of India, as petitioner was not afforded the earliest opportunity to file representation against the two orders, as he remained confined in Adarsh Central Jail, Beur, Patna until 8.7.2005 and during the period between 15.1.2005, when the detention order was served on him until 8.7.2005 the date he remained at Adarsh Central Jail, Beur, Patna, he had no opportunity to file representation against the two orders as the petitioner was under instruction to file representation through the Superintendent of District Jail, Begusarai.
11. The other submission of the counsel for the parties regarding the awareness of the detaining authority about the place of custody of the detenue before issue of the detention order, it is observed that had the detaining authority been aware of the place of custody of the petitioner prior to the issue of the detention order and the confirmation order, the anomalous situation which has arisen in the instant case ought not have arisen at all.
12. In view of the facts and circumstances as discussed above this Court has no option, but to quash the detention and confirmation order dated 13.1.2005 and 22.1.2005, as contained in Annexures-1, 1/A and 4 to this application, which is accordingly quashed and this writ application is allowed.
I.P. Singh, J.
13. I agree.