Amit Kumar @ Quintal Rai vs The State of Bihar and Others

S.N. Jha and A.K. Verma, JJ.—The Petitioner has been detained under the Bihar Control of Crimes Act, 1981 (in short the Act) by the District Magistrate, Samastipur vide his memo No. 1215/LCCA dated 12.6.2002. The detention was approved by the State Government u/s 12(3) of the Act on 22.6.2002 and confirmed u/s 21(1) read with Section 22 of the Act on 16.8.2002. The Petitioner seeks quashing of the said order and release from detention.

The detention order alongwith the grounds of detention were served upon the Petitioner on the date of the order itself i.e. 12.6.2002. He filed representation on 29.6.2002. The representation was rejected on 25.7.2002 which was communicated on 28.7.2002.

Mrs. Anjana Prakash, learned Counsel for the Petitioner, raised three contentions. Firstly, the grounds of detention are stale and in view of the decision of this Court in Ram Kishore Singh @ Kale Singh Vs. The State of Bihar and Others , the same is fit to be quashed on this ground alone. It was pointed out that the Petitioner has been detained on the basis of four incidents, the last of which took place on 22.9.2002 i.e. about 9 months prior to the detention. In the absence of any explanation of the delay by the detaining authority, there was no justification to detain the Petitioner after such a long gap. Secondly, it was submitted, the detention is also fit to be quashed on the ground of delay in disposal of representation. Whereas the representation was filed on 29.6.2002 the Government took about four weeks to decide the same. It was contended that expeditious decision on the representation is statutory and constitutional right of a detenue and where such right is violated, he is entitled to have his detention quashed, Lastly, it was submitted, though preventive detention depends upon subjective satisfaction of the detaining authority, in the instant case the detention suffers from non-application of mind inasmuch as the Petitioner was already in jail at the relevant time and therefore there was no compelling reason to detain him.

Shri Amar Nath Singh, learned Standing Counsel No. 8 controverted the submissions of the counsel. He produced the file to explain the time taken by the Government to decide the representation.

Having heard counsel for the parties, we are of the view that the detention is fit to be quashed on the ground of delay

in disposal of representation and therefore, it is not necessary to go into the details as regards the other two points.

So far as the representation is concerned from the records of the Home Department, it appears that the representation filed by the Petitioner on 29.6.2002

was received in the Department on 1.7.2002. On 2.7.2002 the comments of the District Magistrate was called for and

the same was received on 6.7.2002. On 9.7.2002 the Under Secretary dealt with the matter. On 13.7.2002 the Deputy Secretary put up his note. Agreeing with those notes on 16.7.2002 the Secretary recommended that the representation be rejected. On 25.7.2002 the Minister Incharge i.e. the Chief Minister passed the order.

It would thus appear that there was delay at every level of consideration. While the Under Secretary took three days time to deal with the representation, the Deputy Secretary and the Secretary too contributed to the delay at their level. Nine further days time elapsed before the Minister Incharge approved the notes of the officials to reject the representation.

It has been held by the Supreme Court, while dealing with the question of delay in disposal of representation, what is important is not the period of delay but the explanation therefor. While a longer delay can be condoned provided there is cogent explanation for the same, in the absence of a satisfactory explanation, a shorter delay may not be condoned. In the instant case there is no explanation for the delay. In our view delay could occur at one level, but there can be no justification for the delay at every level. We are satisfied that the valuable right of the Petitioner to have his representation considered expeditiously has been violated and therefore, on this solitary ground, the continuance of detention can not be said to be in accordance with law.

In the result, the writ petition is allowed. The order of detention dated 12.6.2002 contained in Annexure-1 as also the consequential orders mentioned hereinbefore are quashed and the Petitioner is directed to be set free forthwith, if not wanted in any other case.