Shankar Yadav vs State of Bihar and Others

S.N. Jha, J.—The Petitioner is aggrieved by his detention u/s 12 (2) of the Bihar Control of Crimes Act, 1981 by the District Magistrate, Gopalganj vide his memo No. 3034/C dated 29.8.2002. The order was approved by the State Government u/s 12(3) of the Act on 9.9.2002 vide Annexure 2. The Petitioner seeks quashing of the said orders and his release.

Before setting out the contention of the Counsel for the Petitioner it may be mentioned that the detention order along with the grounds was served on the Petitioner on 31.8.2002. On 18.9.2002 he filed representation. On 16.10.2002 the Petitioner was informed that his representation had been rejected.

It was submitted on behalf of the Petitioner that there was inordinate delay in disposal of the representation amounting to violation of Petitioner''s fundamental right under Article 22(5) of the Constitution and the detention is fit to be quashed on this ground alone. The law is settled on the point that what is of significance is not quantum of delay as such, but the explanation of the delay. The Respondents have filed counter affidavits-one on behalf the Department and the other on behalf: the District Magistrate-from perusal which it appears that the representation submitted by the Petitioner on 18.9.20(sic) was sent by the jail authorities to the Ho(sic) (Special) Department on 19.9.2002 i.e. (sic) the next day. On 23.9.2002 it was received in the Department. On the same day co(sic)ments were called for from the Deta(sic) Authority i.e. District Magistrate, Gopalganj On 27.9.2002 the District Magistrate (sic) his comments. The comments were (sic) ceived in the Department on 4.10.2002.(sic) 5.10.2002 the office dealt with the repre-sentation. The Deputy Secretary and (sic) Secretary of the Department put up (sic) notes on 7.10.2002 and 8.10.2002, respec-tively. On 9.10.2002 the Minister Incha(sic) agreeing with their opinion, rejected representation. The rejection was com(sic) nicated to the Petitioner on 16.10.2002.

It was submitted on behalf of Petitioner that there is no adequate ex(sic)nation for the period between 19.9.2(sic) and 4.10.2002. Learned Standing Counsel No. 8 appearing for the Respondents, (sic) that the representation was sent by the authorities by speed post on the very day of its receipt and if it took four day reach the Department, the Respondent authorities cannot be held responsible the vagaries of the Postal Department Counsel submitted that it is the prac(sic) the Department to call for comments the Detaining Authority and the same done on that very day the represen(sic) was received in the Department (sic) 23.9.2002. After communication (sic) ceived by the District Magistrate (sic) pared the comments and sent it write time on 27.9.2002. Counsel point that during the intervening period the Government offices were closed on 2.1(sic) and 6.10.2002 being national hol(sic) account of Mahatma Gandhi''s bi(sic) Sunday, respectively. He referred to decision of the Supreme Court in Ahamed Nassar Vs. The State of Tamil Nadu and Others, in which the (sic) of communication in cases arising (sic) detention order through speed post approved. The Court held that com-(sic)cation through speedpost-not to be (sic)dered as "callous, slack or casual (sic)sition of representation". The Court (sic) observed that if delay occurred on (sic)nt of vagaries of the Postal Department the same could not be attributed to state. The submission of the detenu accordingly rejected.

I find substance in the submission (sic) learned Standing Counsel. It is to be (sic) mind that it is not a case where the (sic)ondents sat over the representation as (sic) case of Rajammal Vs. State of Tamil Nadu and Another, or Kundanbhai Shaikh Vs. Magistrate, Ahmedabad and others, relied upon on behalf of the (sic)oner. The representation/file kept mov(sic) one office/table to another and if delay occurred it was in course of (sic). The detenu is entitled to benefit of (sic)lay in disposal of the representation (sic) there is lack of awareness on the of the concerned authorities to dis(sic) of the representation with reasonable (sic)ch. Where despite due awareness (sic)gence some time is spent in move(sic) and transit of file, as it is bound to, authorities cannot be accused of delay, (sic)ed above, the representation of the (sic) kept moving from one place to (sic). There does not appear to be any (sic) the part of the authorities muchless (sic)ous delay in disposal of the representation It indeed took 20 days in all to (sic) representation. In the facts and (sic)ces it is not possible to uphold (sic)ntion about so-called delay in dis(sic) the representation.

Counsel for the Petitioner then submitted that the detention order is fit to be quashed as the Petitioner has been detained on account of three cases, being Vijaypur P.S. Case No. 21/2001, Vijaypur P.S. Case No. 31/2001 and Vijaypur P.S. Case No. 97/2001 dated 11.4.2001, 20.4.2001 and 16.12.2001 respectively. It was stated that as a matter of fact the first two cases relate to the same incident. In my view, it was submitted, even reckoned from the date of last incident the detention order was passed after eight months. Thus there being no proximity between the alleged acts and the detention the impugned orders cannot be said to be in accordance with the spirit of the relevant provisions of the Bihar Control of Crimes Act which contemplates immediate arrest of the person to prevent him from committing acts prejudicial to the maintenance of public order. In this regard, reliance was placed on Jagan Nath Biswas v. The State of West Bengal 1975 SC 1516. Ram Kishore Singh @ Kale Singh Vs. The State of Bihar and Others Mohan Singh Vs. The State of Bihar and Others and Union of India (UOI) and Another Vs. Mohan Pal, etc. etc.,

Learned Standing Counsel submitted, in reply, that the preventive detention of a person depends on subjective satisfaction of the detaining authority. The chargesheet in the aforementioned cases were submitted respectively only on 10.4.2002, 29.4.2002 and 30.4.2002. The Petitioner was in custody till the date of detention and the detaining authority was of the opinion that there was likelihood of his release on bail. He was further of the opinion that if released he would commit similar crimes and thus on being satisfied passed the order of detention.

It is true, as observed by the Supreme Court in Jagan Nath Biswas v. The State of West Bengal 1975 SC 1516, that there should be some reasonable proximity between the alleged acts of the person and his detention and in the absence of any explanation the acts allegedly committed by the person may be said to have become stale. However, there cannot be any strait-jacket formula to draw a line of demarcation beyond which the detention order cannot be passed. In the cases decided by this Court, referred to above, the detention order has been passed respectively after gap of 10 months and 14 months from the last incident. In the instant case, the stand of the Respondents is that the case was under investigation till the month of April 2002. It was only after the chargesheet was submitted that the Detaining Authority came to the conclusion that the acts allegedly committed by the Petitioner were such as to give rise to the apprehension that in the event of his being released on bail he may commit similar acts.

In Rajendrakumar Natvarlal Shah Vs. State of Gujarat and Others, the Supreme Court observed that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting number of months between the offending acts and the order of detention. In Yogendra Murari Vs. State of U.P. and Others, , the Supreme Court observed that the order of detention cannot be mechanically struck down on the ground of delay. It is necessary to consider the circumstances in each individual case in order to find out that the delay has been satisfactorily explained or not. Where the person concerned is in custody there could not be any apprehension of indulging in illegal activities until grant of bail by the criminal court become imminent or where some inquiry or investigation is pending. In the instant case, thus, as the chargesheet was submitted in the month of April, 2002 and till then the detaining authority did (sic) think that there was any chance of Petitioner committing any act prejudicial (sic) maintenance of public order, the explanation of the detaining authority is fit to be accepted. At any rate the satisfaction can not be questioned in writ jurisdiction (sic) thus the order of detention passed, sa(sic) after eight months of the alleged acts can not be said to be belated. I, thus, do (sic) find any substance in the second contention either.

Counsel then submitted that (sic) Petitioner cannot be termed ''anti-social within the meaning of Control of Crime Act. The submission has been noticed (sic) to be summarily rejected. The term (sic) social element'' has been defined in S(sic) tion 2(d) as under:

Anti-Social element" means a (sic) son who-

(i) either by himself or as a (sic) ber of or leader of a gang, hab(sic) commits or attempts to commit or (sic) the commission of offences punish(sic) under Chapter XVI or Chapter xv(sic) the Indian Penal Code; or

(ii) habitually commits or abets; commission of offences under Supression of Imoral Traffic in Woman and Girls Act, 1956; or

(iii) who by words or otherwise motes or attempts to promo(sic) grounds of religion, race, language or community or other grounds (sic)ever, feelings of enmity or hat(sic) tween different religions, racial (sic) guage, groups or castes or co(sic)ties; or

(iv) has been found habitually (sic)ing indecent remarks to, or (sic) women or girls; or

(v) who has been convicted offence under Sections 25,26,27,28,29 of the Arms of 1959.

On a plain reading of the above (sic) wouId appear that where, inter alia, any person either by himself or as a member of leader of a gang, habitually commits or attempts to commit or abets the commission of offences punishable under chapters xvI or XVII of the Indian Penal Code, he can be termed as ''anti-social element''. In The aforesaid cases, chargesheets have been submitted against the Petitioner u/s 307 besides other sections of The Penal Code and the Arms Act. The cases fall within the ambit of Chapter XVI of the Penal Code, and, therefore, there is no difficulty in holding that as per the alle-gations in those cases, the Petitioner comes within the mischief of term ''anti-Social element. This contention of the counsel also (sic) accordingly, rejected.

Counsel for the Petitioner lastly submitted that u/s 12(2) the District Magistrate exercises the delegated power of the State Government and under proviso thereto the delegation/authorisation cannot exceed three months at the first (sic)stance. There is no material to show that (sic) District Magistrate, Gopalganj, was duly authorised to make orders of detention.

This aspect of the case has not (sic) dealt with in the counter affidavit. In (sic) opinion, however, once the order of (sic)ention is approved by the State Government under 12(3) of the Act, the question (sic) to whether there was any valid authori(sic) in favour of the detaining authority, (sic) its significance. It should be kept in (sic) that what is under challenge in the (sic) is the detention of the Petitioner and (sic) the authorisation as such. As stated at (sic) outset, the Petitioner''s detention was (sic)roved by the State Government within (sic) permissible period on or about 9.2.2002. (sic) order of the detaining authority thus (sic)ged in the order of the State Government and there is no question of interfering (sic) the impugned detention on the ground that the District Magistrate was not authorised to make the impugned order.

The contentions of the counsel for the Petitioner having been rejected this writ petition must fail which, is accordingly dismissed.

P.N. Yadav, J.

I agree.