Sudhir Kumar Sinha vs State of Bihar and Another

Birendra Prasad Sinha, J.—In this application under Articles 226 and 227 of the Constitution of India, the petitioner, Sudhir Kumar Sinha, has challenged his detention under the Bihar Control of Crimes Act 1931 (hereafter referred to as ''the Act''). The order of detention was passed by the District Magistrate, Hazaribagh. respondent No. 2. under Sub-clause (2) of Section 12 of the Act on 26-3-1982 vide Annexure-1. The same was served on the petitioner on 27-3-1982. The grounds of detention were served upon the petitioner on 28-3-1982 as contained in Annexure-1/A. The detention order was approved by the Government on 3rd of April, 1982 by Annexure-2. On 25-4-1982 the petitioner made a representation in which he challenged his detention order. His representation is contained in Annexure-6. The petitioner was produced before the Advisory Board on 30-4-1982 and the Government in exercise of the power conferred by Section 21 (1) read with Section 22 of the Act, confirmed the detention order and ordered that the petitioner shall remain in detention tin 25th of March. 1983. That order of the Government is D/- 25th or May, 1982 and was served upon the petitioner on 30th of May, 1982. Although the order dt. 26th of May, 1982 is not made a part of the application but the original copy thereof, was produced before us at the time of hearing.

Mr. S.B. Sinha. learned Counsel appearing on behalf of the petitioner has challenged the order of detention on various grounds. He first contended that the representation of the petitioner filed on 25-4-1982 was not considered by the Government at all and the order of detention should be set aside on this ground alone. In paragraphs 27 and 28 of the petition, it has been stated that the petitioner sent his representation to the Secretary. Department 6f Home (Police) Government of Bihar, on 25th of April, 1982. It is further stated that no decision on his representation was communicated to him until 14th of May, 1982. on which date this writ application was filed, A counter-affidavit has been filed on behalf of the State of Bihar, respondent No. 1, which has been sworn by one Ram Sihasan Prasad Sinha, an Assistant in the Home (Police) Department, State of Bihar. Patna. It is a very short and cryptic counter-affidavit which consists of ten paragraphs and in it, it is stated that the facts stated in the counter-affidavit are true to his knowledge derived from the records of this case. The allegation made in paragraph 28 referred to above, has not been traversed. In paragraph 5 of the counter-affidavit, it has been stated that the State Government referred the case of the petitioner in accordance with Section 19 of the Act on 10-4-1982 and the representation of the detenu was placed before the Advisory Board for consideration. In paragraph 6 it is stated that on 30th of April, 1982, the Advisory Board heard the petitioner personally and considered all the papers and materials, opined on 30th of April, 1982 that there exist sufficient cause for the detention of the petitioner and the Advisory Board submitted the report on 30th of April, 1982 to the Government In paragraph 7 it is stated that the State Government in exercise of the powers under Sections 21 and 22 of the Act confirmed the detention order and ordered that the detenu shall be detained till 25th of March, 1983. It is nowhere stated that the representation of the petitioner was considered by the State Government. From the counter-affidavit it appears that representation was considered by the Advisory Board and the detention order was confirmed by the Government on the receipt of the opinion of the Advisory Board. In the case of Dr. Rahamatullah Vs. State of Bihar and Another, it was held that "in case of preventive detention of a citizen, the obligation of the appropriate Government is twofold : (i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and (ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion. The former is distinct from the latter. As there ;s a twofold obligation of the appropriate Government, so there is twofold right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion." Article 22(5) of the Constitution provides that the detaining authority shall, as soon as may be communicate the grounds of detention and shall afford the detenu the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. It is meant for consideration by the appropriate authority without any unreasonable delay. The non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution. In the case of Dr. Rahamatullah 1981 Cri LJ 16981 (supra) as in this case, the State Government seems to have waited till the receipt of the Advisory Board''s opinion and confirmed the detention order on 30th of May, 1982. Thus, there was a delay of one month and five days from the date of making the representation. Nothing has been placed before us on behalf of the respondents to show that there was any independent consideration of the representation by the State Government. Thus by itself, it is a clear violation of Article 22(5) of the Constitution. It is now well settled that the representation has to be considered by the Government, without waiting for the opinion of the Advisory Board. Reference may be made to the case of Ashok Kumar Vs. State of Jammu & Kashmir, and to the case of Harish Pahwa Vs. State of U. P. and Others, .

Learned Counsel further submitted that there was unreasonable and unexplained delay in disposing of the representation of the petitioner. As stated above, the representation was made on 25-4-1982 and seems to have been finally disposed of on 26-5-1982 when the order was confirmed by the State Government under Sections 21 and 22 of the Act. Thus, even if, it is assumed that the representation was considered by the State Government after the receipt of the opinion of the Advisory Board, the same was done after a month. In the case of Shri. Saleh Mohammed Vs. Union of India (UOI) and Others, a delay of 22 days was considered fatal. In the case of Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, and in the case of Gurdip Singh Vs. Union of India, a delay of 29 days in consideration of the representation was considered to be fatal. The liberty of an individual is precious and is one of the fundamental tenets of our Constitution. Where it is sought to be curtailed under a law of preventive detention, the representation, if any, made by the detenu must be attended to, dealt with, and considered with watchful care and reasonable promptitude. Failure on the part of the detaining authority to consider the detenus representation without unreasonable delay is sufficient to vitiate the detention order. On this ground also, the order of detention in the present case has got to be set aside.

Learned Counsel appearing on behalf of the petitioner then submitted that the material documents upon which the order of detention is based, were not supplied to the detenu to enable him t0 make an effective representation and that also has vitiated the detention order. He relied upon the decisions in Mohd. Zakir Vs. Delhi Administration and Others, nstitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied With." It was further observed that the question of demanding the documents was wholly irrelevant. Similarly, in the case of Smt. Icchu Devi Choraria Vs. Union of India (UOI) and Others, it was held that in order to enable the detenu to make an effective representation against his detention, the detaining authority must keep already copies of the documents and other materials relied upon or referred to in the grounds of detention and supply the same to the detenu. This right flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. It was held that the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention to satisfy the requirements of Article 22(5) of the Constitution. Similar view was taken by a Division Bench of this Court in the case of Baldeo Rai, Khanna (Supra),

So far grounds Nos. 1, 2 and 3 are concerned, the petitioner was not named in the first information report. Ground No. 2 relates to an incident Dt. 25-1-1982 u/s 392 of the I.P.C. The petitioner is said to have been identified in Test Identification parade in this case. The Test Identification Chart was not supplied to the petitioner along with the grounds of detention. Ground No. 1 relates to an incident of 7-5-1981 in which the petitioner along with others has been charge-sheeted u/s 394 of the I.P.C. Copy of the charge-sheet was not supplied to the petitioner along with ground of detention. Ground NO. 3 relates to an incident of 1-2-1982 u/s 392 of the I.P.C. in which it is stated that during the investigation, it was found that the petitioner had participated in the occurrence but the witness did not identify him due to fear. The statements, implicating the petitioner in the offence, made by the witnesses were not supplied to the petitioner. In this respect it was asserted on behalf of the petitioner that the petitioner was not put on any test identification parade and this assertion remains uncontroverted in the counter-affidavit. Ground No, 4 relates to an incident of 2-2-1982 under Sections 379, 341, 347 and 323 of the I P. C. It is stated that during the investigation some stolen properties were recovered and the petitioner and others were arrested. NO seizure list was supplied to the petitioners in respect of this case along with the grounds of detention. As has been held by the Supreme Court in the above cases, the petitioner was entitled to the supply of the documents referred to above for the purpose of making an effective representation. That not having been done, the order of detention must be held to be bad and violative of mandatory provisions of Article 22(5) of the Constitution of India,

It is possible that a person against whom serious allegations have been made is able to escape detention on these ground. But for that, the authorities concerned have to thank themselves. Preventive detention is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirements of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention, regardless of the social costs involved in the release of a possible offenders. It has been repeatedly stressed by the Supreme Court that the burden of showing that the detention is in accordance with the procedure established by law is always on the detaining authority because of the clear and explicit terms of Art, 21 of the Constitution.

Learned Counsel for the petitioner tried to raise some other questions in the present case but it is not necessary to deal with them. The order of detention has got to be set aside for the reasons stated above.

This application for Habeas Corpus is, accordingly allowed. The order of detention is set aside. Let the writ of Habeas corpus be issued directing the release of the petitioner from the detention forthwith, if not wanted in any other case

Satyeshwar Roy, J.

I agree. Petition allowed.