Ram Sakal Rai vs The State of Bihar and Others

S.K. Homchaudhuri and Narayan Roy, JJ.—This petition under Articles 226 and 227 of the Constitution of India is directed against the order No. 813 dated 6.5.1994 of detention of the Petitioner (Annexure 1), passed by the District Magistrate, Samastipur, in the exercise of power u/s 12 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as ''the Act'').

The grounds of detention was supplied to the Petitioner on 8.5.1994. The Government approved the order of detention by order No. 3538 dated 17.5.1994 (Annexure 3). On 21.5.1994, the supplementary narration of grounds (Annexure 4) was served on the Petitioner. The Petitioner made a representation on 2.6.1994 against the order of detention.

In paragraphs 8 and 20 of the petition, it is stated that the representation filed by the Petitioner on 2.6.1994, was not disposed of till the filing of this petition on 26.10.1994.

We have heard learned Counsel for the Petitioner and learned standing Counsel No. 6 for the Respondents.

Learned Counsel for the Petitioner submits that non-disposal of the Petitioner''s representation dated 2.6.1994 is sufficient ground for setting aside the order of detention. In support of this submission, learned Counsel for the Petitioner has placed reliance on a Full Bench decision of this Court in the case of Raj Kumar Gupta Vs. State of Bihar and Others, . In paragraph 12 of the said decision, this Court has held that the unexplained delay in disposal of the representation by even one month, vitiates that detention.

In paragraph 9 of the counter-affidavit filed on behalf of Respondents No. 3 to 6, the assertion of filing of the representation by the Petitioner has been admitted, but his assertion ''that the Petitioner has no knowledge about the disposal of the same'', has been denied. In paragraph 19 of the said counter-affidavit, the deponent has stated as follows:

That with regard to statements made in para 20 it is stated and submitted that Petitioner has very knowledge of the aforesaid disposal by Govt. because by the Government itself the case of the Petitioner was referred to the Advisory Board after disposal of the representation.

From a perusal of the counter-affidavit, we find that the Respondents have made an evasive reply about disposal of the representation. The date of disposal of the representation and communication of the order, if any, passed on the representation, have not been stated in the affidavit-in-opposition. Even there is no specific assertion that the Petitioner''s representation has been disposed of. That being so, the Petitioner''s assertion that his representation made on 2-6-1994 has not been disposed of cannot but be accepted. Non-disposal of the representation has vitiated the detention of the Petitioner by the impugned order.

For the reasons stated above, the petition is allowed and the impugned orders of detention and approval are set aside. The Petitioner shall be released from detention forthwith in case he is not required to be detained in connection with any other case.