Jharkhand High Court
Gaurav Vaksh @ Lucky Singh vs The State Of Jharkhand on 28 May, 2020
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 428 of 2019
----
Gaurav Vaksh @ Lucky Singh ... Petitioner
-versus-
1. The State of Jharkhand
2. The Chief Secretary, Govt. of Jharkhand, Office at Project Bhavan, P.O. &
P.S. Dhurwa, Dist. Ranchi.
3. The Home Secretary, Dept. of Home, Jail and Disaster Management, Govt.
of Jharkhand, Office at Project Bhavan, P.O. & P.S. Dhurwa, Dist. Ranchi.
4. The Under Secretary, Department of Home, Jail and Disaster Management,
Govt. of Jharkhand, Office at Project Bhavan, P.O. & P.S. Dhurwa, Dist.
Ranchi.
5. The Deputy Commissioner, Dhanbad cum The District Magistrate,
Dhanbad.
6. The Senior Superintendent of Police, Dhanbad.
7. The Officer-in-Charge, Sindri P.S., Dhanbad.
... Respondents
----
CORAM : HON'BLE MR. JUSTICE ANANDA SEN
----
For the Petitioners : Mr. Vikram Sinha, Advocate
For the Respondents : Mr. Brijj Bihari Sinha, G.A.II
----
ORDER
Reserved On 19.05.2020 Pronounced on 28/05/2020 8/ 28.05.2020 In this criminal writ application filed under Article 226 of the
Constitution of India, petitioner has prayed for the following reliefs: -
(i) For quashing of the detention order issued vide order no.12, dt.
07.08.2019 against the petitioner passed by District Magistrate at Dhanbad (respondent No.5), whereby and whereunder an detention order against the petitioner was passed and he was directed to be kept in confinement at Divisional Jail at Dhanbad and further for quashing the order of the Under Secretary (Respondent No.4) of Department of Home, Jail and Disaster Management, Govt. of Jharkhand vide Memo No.4443/Ranchi dt. 14.08.2019 whereby and whereunder the detention order against the petitioner had been confirmed and approved. At present the case is pending before the District Magistrate at Dhanbad.
(ii) For quashing of the order passed vide memo no.
05/C.C.A./01/40/2019-5706/Ranchi, dt. 06.11.2019 passed by Under Secretary (Respondent No.4) of Department of Home, Jail 2 and Disaster Management, Govt. of Jharkhand, whereby and whereunder the detention order against the petitioner has been extended for a period of three months, i.e., from 07.11.2019 to 07.02.2020.
(iii) For any other appropriate relief(s) to which the petitioner may be found entitled in law and equity..
2. The Senior Superintendent of Police, Dhanbad vide his letter No.2885/Crime Branch dated 24.07.2019 addressed to the Deputy Commissioner-cum-District Magistrate, Dhanbad recommended for detention of the petitioner in terms of Section 12(2) of the Jharkhand Control of Crimes Act, 2002. Acting upon the aforesaid letter, the Deputy Commissioner, Dhanbad vide order dated 07.08.2019 being order No.12/2019 passed a detention order directing the petitioner to be confined to the Divisional Jail at Dhanbad. Vide memo No.1015/Confidential dated 07.08.2019 the basis/ grounds of detention of the petitioner was mentioned. Details of three criminal cases / First Information Reports (FIRs) lodged against the petitioner and a list of 7 Sanhas was supplied to the petitioner as a ground of detention. Vide memo No.4443/Ranchi dated 14.08.2019, the Under Secretary, Department of Home, Prison and Disaster Management, Government of Jharkhand approved the detention order passed by the Deputy Commissioner, Dhanbad. The detention period of petitioner later was extended vide his order dated 06.11.2019.
3. Aggrieved by the aforesaid order of detention passed under the Jharkhand Control of Crimes Act, petitioner approached this Court and prayed for quashing the said order on the ground that the same is illegal, has been passed without application of mind and the allegations levelled against the petitioner are baseless and none of the pending cases can be said to disturb public order. It is his case that no prejudice is caused to the public order, which would be evident from a bare perusal of the FIRs. It is his case that there must be some proximity of the cases referred and the date of detention and in this case, there is a clear time lag of seven months between the list of cases referred to by the State and the impugned order of detention. According to the petitioner, the FIRs against him is dated 22.10.2018, 05.11.2018 and 13.01.2019, whereas the detention order has been passed on 07.08.2019. As per the petitioner, this delay is fatal and there being no proximity between the cases referred and the date of the impugned order, the impugned order could not have been passed. It is his further case that in all the cases which is 3 registered against the petitioner, he is on bail, thus, he could not have been detained. It is also the case of the petitioner that his representation was disposed of after much delay, which vitiates the impugned order of detention and its confirmation. It is his further case that, in fact, his representation was not considered before the Advisory Board has passed their order. He submits that this lapse is very serious and on this ground the detention order is liable to be set aside.
4. The State has appeared and filed counter affidavit. It is admitted that an order has been passed under Section 12 of the Jharkhand Control of Crimes Act, 2002, detaining the petitioner. It is also admitted that the State has affirmed the order. The State had taken a plea that all the procedures have been followed and thus, the detention order should not be interfered with. The State claims that petitioner is a known criminal and an antisocial and is extremely busy in antisocial activities causing disturbance to peace and tranquility. State contended that the petitioner extorts money from the contractors from HURL Company. Due to the antisocial acts of this petitioner, there is a surge of fear among the management of HURL Company and there is apprehension that the petitioner may create nuisance and disturb the peace and tranquility, if he comes out of jail. The State apprehends that there would be severe disturbance of law and order, peace and tranquility and public order will be severely disturbed. To prevent the same, an order under Section 12 of the Jharkhand Control of Crimes Act has been passed detaining the petitioner. It is also the contention of the State that keeping in view the criminal antecedent of the petitioner, it was decided to proceed in terms of Section 12 of the Jharkhand Control of Crimes Act, 2002 in place of earlier proposal, which was in terms of Section 3 of the said Act. The State also mentioned in the counter affidavit that the order under Section 12 of the Jharkhand Control of Crimes Act was duly served upon the petitioner. It is contended that after approval of the Government, the detention order was placed before the Advisory Board for consideration and after considering the entire matter, the Advisory Board found the detention order to be justified.
5. During course of argument, it was contended by the petitioner that his statutory representation was not at all disposed of by the State, which vitiates the order of detention and the order confirming the detention. On the aforesaid plea taken by the petitioner, a specific time was given to the State to file an affidavit informing this Court as to whether the representation of the petitioner was disposed of or not and if yes, the date thereof. In reply to the 4 aforesaid query, a supplementary counter affidavit was filed by the Under Secretary, Department of Home on 06.05.2020 (sworn on 05.05.2020). The State claimed that the representation of the petitioner dated 17.08.2019 was received in the Office of the respondents on 28.08.2019 and the same was disposed of as rejected on 01.10.2019, after approval of the competent authority. It is also admitted that the case of the petitioner was kept before the Advisory Board, who considered the same on 31.08.2019 and opined that there are sufficient grounds to detain him. It is submitted that since the representation of the petitioner was disposed of as rejected, the petitioner cannot have any grievance.
6. I have heard counsel for the petitioner and the counsel for the State. Both the parties argued their respective cases through Video Conferencing. They were also given opportunity to file their respective written notes of arguments, which they had already filed.
7. The main contention of the petitioner and the State and their submissions in the written notes of arguments are same, as has been narrated hereinbefore. I am not repeating the said submissions again.
8. The order under Section 12(2) of the Jharkhand Control of Crimes Act, 2002 was passed on 07.08.2019 vide order No.12/2019. The grounds have been enumerated in memo No.1015/Confidential dated 07.08.2019. Three criminal cases being Sindri Police Station Case No. 74 of 2018 dated 22.10.2018, Sindri Police Station Case No.81 of 2018 dated 05.11.2018 and Sindri Police Station Case No.2 of 2019 dated 13.01.2019 are the main grounds for detaining the petitioner. Further, there appears to be 7 Sanhas, which are registered against the petitioners, numbers of which have been mentioned in the grounds of detention. Further, it has been mentioned that the petitioner has criminal antecedent. The detention order along with the grounds was served upon the petitioner. It is pertinent to mention here that in last paragraph of memo No.1015, which contains the grounds, the petitioner was informed that he can represent against the said order before the Additional Chief Secretary, Home, Prison and Disaster Management, Government of Jharkhand. As per the petitioner, he represented before the said authority, but, according to him, the said representation was not disposed of and rather the order of detention was confirmed and extended.
9. Bihar Control of Crimes Act, 1981 was adopted by the State of Jharkhand and now it is read as Jharkhand Control of Crimes Act, 2002. Section 12 of the Jharkhand Control of Crimes Act gives power to pass an 5 order detaining certain person. By virtue of the said Section, an antisocial element can be detained. Sub section 3 of Section 12 provides that when any order is made by District Magistrate, he shall report the facts to the State Government with the grounds on which the order has been made and any such order shall remain in force for more than 12 days after making of the same, unless the same is approved by the State Government. The proviso to the aforesaid sub section provides that when under Section 17 the grounds of detention are communicated by the Officer making the order after 5 days, but, not later than 10 days, the period of 12 days should be read as 15 days. Upon analysing Section 12, I find that the detaining authority must be satisfied that the concerned person is an antisocial, as defined in Section 2(d) of the Act of 2002, and it is necessary to prevent the person from acting in any manner prejudicial to the maintenance of public order and such activity of the antisocial element cannot be prevented otherwise, than by the immediate arrest of such person. Section 17 is a very important provision of the Act, which provides that the grounds of the order of detention has to be disclosed to the person, who is affected by the order. For better appreciation, Section 17 of the Jharkhand Control of Crimes Act is quoted hereinbelow: -
17. Grounds of order of detention to be disclosed to person affected by the order - (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.
(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
10. From the aforesaid Section, it is clear that the grounds of detention has to be supplied/communicated to the detainee not later than 5 days after the passing the order of detention. This has two purpose: -
(i) to bring to the notice of the detainee the reasons for his detention and the grounds thereof;
(ii) to given an opportunity of making representation against such detention.6
These are the constitutional rights guaranteed to the detainee.
11. Section 19 of the Jharkhand Control of Crimes Act deals with reference to Advisory Board. It reads as follows: -
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 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 in 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.
12. In the instant case, I find that the order of detention and the grounds were served to the petitioner. The petitioner also filed his representation. The State also admitted that the representation was filed, but, as per the arguments of the counsel for the petitioner and also as per the counter affidavit, the same was disposed of as rejected. The said rejection, as per the State is on 01.10.2019, i.e., after the order passed by the Advisory Board. Be it noted that the Advisory Board had taken a decision on 31.08.2019. Though there is some dispute between the petitioner and the State on the date of receipt of said representation, yet even if the submission of the State is accepted, then also as per them, the representation was received on 28.08.2019 and the same was disposed of on 01.10.2019, thus, there is a delay of 34 days from the date of receipt of representation in rejecting the same. This delay is not properly explained.
13. From the aforesaid section 19 of the Act, it is quite clear that the representation of the person so detained should be placed before the Advisory Board. In this case, I find that the Advisory Board has given its report on 31.08.2019 whereas the representation in terms of Section 17 of the Jharkhand Control of Crimes Act was disposed of by the Government on 01.10.2019, which is after the Advisory Board had given its report.
14. Now the point is that when the statute has provided for filing of representation, the same cannot be treated to be a mere formality. When a statute calls for a representation from the detainee, it means that the said representation has to be disposed and it cannot be kept pending.
715. The Hon'ble Supreme Court, in the case of Raj Kishore Prasad versus the State of Bihar reported in (1982) 3 SCC 10 had quashed the detention order on the ground that there was a delay of 28 days in considering the representation. Further, similar view was taken by the Hon'ble Supreme Court in the case of Devi Lal Mahto versus Union of India reported in (1982) 3 SCC 328.
16. In the instant case, not only there was delay in disposing of the representation, but, the said representation was disposed of after the Advisory Board had given their report. This is a serious lapse on the part of the State. When a valuable right of a person, in this case the right to life and liberty, is taken away, all the procedures of law, which is framed for the said purpose have to be meticulously followed. As mentioned earlier, when there is a right to file a representation, the same cannot be formal in nature and the same is for a particular purpose. The purpose is to consider the same and pass an order as early as possible. In this case, not only there was an inordinate delay, but, surprisingly, the representation was not even disposed of before the Advisory Board had given its report.
17. Thus, in this case, I find that the representation of the petitioner was disposed after an inordinate delay, not explained. This lapse on the part of the State goes to the roots of the case and makes the detention order bad in view of the aforesaid judgments. Thus, on this ground alone, the detention order needs to be quashed and set aside.
18. In view of what has been held above, I am inclined to allow this writ application. The impugned detention order No.12, dated 07.08.2019 issued by the District Magistrate at Dhanbad (respondent No.5), and the order of the Under Secretary, Department of Home, Jail and Disaster Management, Government of Jharkhand vide Memo No.4443/Ranchi dated 14.08.2019 whereby and whereunder the detention order against the petitioner had been confirmed and approved are hereby quashed and set aside. Accordingly, the petitioner, namely, Gaurav Vaksh @ Lucky Singh, who was detained pursuant to the order No.12 dated 07.08.2019 and Memo No.4443/Ranchi dated 14.08.2019, is directed to be released from detention forthwith.
(Ananda Sen, J.) Kumar/Cp-03