Jharkhand High Court
Prakash Chandra Yadav @ Mungeri ... vs The State Of Jharkhand Through ... on 2 November, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.). No. 405 of 2022
Prakash Chandra Yadav @ Mungeri Yadav, aged about 51 years, son of late Anandi
Yadav, resident of Subhash Colony, P.O. and P.S. Borio, District-Sahebganj
...... Petitioner
Versus
1.The State of Jharkhand through Principal Secretary, Department of Home, Ranchi
2.The District Magistrate-cum-Deputy Commissioner, Sahibganj
3. The Superintendent of Police, Sahibganj
4. The Sub-Divisional Police Officer, Sahibganj
...... Respondents.
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Vimal Kirti Singh, Advocate
Mr. Ujjal Choudhary, Advocate
Mr. Aparajita Mallick, Advocate
Mr. Raunak Sahay, Advocate
Mr. Soumitra Baroi, Advocate
For the State : Mr. Manoj Kumar, G.A.-III
Mr. Aditya Raman, A.C. to G.A.-III
...........
05/Dated: 02/11/2022
Heard Mr. Vimal Kirti Singh, learned counsel for the petitioner and Mr.
Manoj Kumar, learned G.A.-III appearing on behalf of the State.
2. This petition has been filed for quashing the order passed by the District
Magistrate-cum-Deputy Commissioner, Sahibganj dated 08.08.2022 passed under
section 12 (1) & 12 (2) of the Jharkhand Control for Crimes Act, 2002 (hereinafter
referred to „Act‟) whereby petitioner was detained for the period of 3 months upon
taking cognizance of letter dated 03.08.2022 of the Sub-Divisional Police Officer,
Sahibganj. Further prayer has been made for quashing letter dated 03.08.2022 of the
Sub-Divisional Police Officer, Sahibganj. Further prayer has been made for quashing
the letter dated 03.08.2022 of the Superintendent of Police, Sahibganj. By way of I.A.
No. 9322 of 2022, order dated 12.08.2022 and order dated 15.09.2022 have been
challenged which was allowed to be challenged by order dated 19.10.2022.
3. I.A. No. 10037 of 2022 has been filed on behalf of respondent nos. 3
and 4 for withdrawing and adding of para 13 of the counter-affidavit filed earlier on
12.10.2022 and I.A. No.10038 of 2022 has been filed on behalf of respondent no. 2
for withdrawing and adding para 12 of the counter-affidavit filed earlier on 12.10.2022
in which it has been inadvertently stated that representation of the petitioner was
considered.
4. In view of above facts and considering that it has happened due to
human error, prayer made in I.A. is allowed. I.A. Nos. 10037 of 2022 and 10038 of
2022 stand allowed and disposed of. Let these I.As. be part of the record. .
5. Although there is alternative remedy available to the petitioner and on the
strength of Article 21 and 22 of the Constitution of India petitioner‟s argument was
made that liberty of the petitioner is at stake and the writ petition can be
entertained. Considering that aspect of the matter this writ petition was heard on
merit and entertained under Article 226 of the Constitution of India.
6. Mr. Vimal Kirti Singh, learned counsel for the petitioner submits that in
the light of Section 12(2) of the Act, no detention order has been issued against Dahu
Yadav who is also accused till date and the district administration has targeted the
petitioner and issued illegal detention order against the petitioner. He further submits
that petitioner is tax payer of 7 to 9 crores per annum. He took the Court to the
impugned order dated 08.08.2022 and submits that in the impugned order there are
disclosure of two parties however no action has been taken against the second party
and only petitioner has been targeted by the district administration which was
communicated to the Government which was affirmed vide order dated 12.08.2022.
By way of referring the said impugned order he submits that said order is based on
two premises i.e. public order as well as law and order. He submits that specific order
is required to be passed. On these score and in the light of law and order and public
order it has not been acted. He further submits that 18 cases have been referred
against the petitioner are of earlier years and in some of the cases petitioner has
already been enlarged on bail. He submits that on the basis of those cases detention
order passed, is illegal. He put much emphasis of sub-section 3 of section 12 of the
Act and submits that impugned order has been passed in haste as atleast 12 days‟
time is prescribed therein and proviso speaks of 15 days. He further submits that the
petitioner‟s representation was not considered and in the light of Article 22 (5) of the
Constitution of India communication is required to be made and in absence of that
impugned order has been passed and opportunity is required to be made however
this has not happened in the case of the petitioner. On the point of representation
and to buttress his argument Mr. Singh relied on judgment in the case of " Kamla
Kanyalal Khushalani Vs. State of Maharashtra & Another" (1981) 1 SCC 748
where paras 6, 7, 8, 9 the Hon‟ble Supreme Court has held as under:-
"6. Thus, we are of the opinion that in view of what has been laid down
in Maneka Gandhi case [(1980) 4 SCC 544 : 1981 SCC (Cri) 38] and in a
number of other cases following the aforesaid decision, the law of
preventive detention has now to satisfy a two fold test: (1) that the
protection and the guarantee afforded under Article 22(5) is complied with,
and (2) that the procedure is just and reasonable. In this view of the
matter unless the materials and documents relied on in the order of
detention are supplied to the detenu along with the grounds, the supply of
grounds simpliciter would give him not a real but merely an illusory
opportunity to make a representation to the detaining authority.
7. It is well settled that the court frowns on preventive detention without
trial because the detenu is deprived of the right of proving his innocence in
a trial by a court of law. It is, therefore, of the utmost importance that all
the necessary safeguards laid down by the Constitution under Article 21 or
Article 22(5) should be complied with fully and strictly and any departure
from any of the safeguards would void the order of detention. This is so
because in a civilised society, like ours, liberty of a citizen is a highly
precious right and a prized possession and has to be protected unless it
becomes absolutely essential to detain a person in order to prevent him
from indulging in anti-national activities like smuggling, etc. We are fortified
in our view by a decision of this Court in Sampat Prakash v. State of
J&K [(1969) 1 SCC 562 : (1969) 3 SCR 574] where the following
observations were made:
"that the restrictions placed on a person preventively detained must,
consistently with the effectiveness of detention, be minimal".
8. It is a matter of great concern and deep dismay that despite repeated
warnings by this Court, the detaining authorities do not care to comply with
the spirit and tenor of the constitutional safeguards contained in Article
22(5) of the Constitution. It is manifest that when the detaining authority
applies its mind to the documents and materials which form the basis of
the detention, the same are indeed placed before it and there could be no
difficulty in getting photostats copies of the documents and materials,
referred to in the order of detention, prepared and attaching the same
along with the grounds of detention, if the detaining authority is really
serious in passing a valid order of detention. Unfortunately, the
constitutional safeguards are not complied with, resulting in the orders of
detention being set aside by the court, even though on merits they might
have been justified in suitable cases. We feel that it is high time that the
Government should impress on the detaining authority the desirability of
complying with the constitutional safeguards as adumbrated by the
principles laid down in this regard. We would like to suggest that whenever
a detention is struck down by the High Court or the Supreme Court, the
detaining authority or the officers concerned who are associated with the
preparation of the grounds of detention, must be held personally
responsible and action should be taken against them for not complying with
the constitutional requirements and safeguards (viz. delay in disposing of
the representation, not supplying the documents and materials relied upon
in the order of detention pari passu the order of detention, etc. etc.) or, at
any rate, an explanation from the authorities concerned must be called for
by the Central Government so that in future persons against whom serious
acts of smuggling are alleged, do not go scot-free. In the instant case, not
only were the documents and materials not supplied along with the order
of detention, but there has been a delay of about 25 days in disposing of
the representation of the detenu and no explanation for the same has been
given. These are matters which must be closely examined by the
Government.
9. For the reasons given above, we hold that the continued detention of
the detenu is void. We allow the petition and direct the detenu to be
released forthwith. A copy of this judgment be sent to the Home Ministers
of all the State Governments, the Hon'ble Home Minister of the
Government of India and also the Hon'ble Finance Minister, Government of
India for necessary action."
7. Relying on the aforesaid judgment, he elaborates his arguments by way of
submitting that constitutional safeguard has not been complied with in the light of
said judgement passed by the Hon‟ble Supreme court. He further submits that all
documents are required to be supplied to the detenu which has not been complied. To
buttress his argument, he relied on judgment in the case of " Smt. Icchu Devi
Choraria Vs. Union of India and others" (1980) 4 SCC 531 wherein para 6, 7, 8
and 11 the Hon‟ble Supreme Court has held as under:-
"6. We must therefore now proceed to examine whether there was any
breach of the requirements of Article 22, clause (5) of the Constitution
and Section 3 sub-section (3) of the COFEPOSA Act, for that is the breach
which is claimed by the petitioner as invalidating the continued detention
of the detenu. Clause (5) of Article 22 of the Constitution reads as
follows:
"When any person is detained in pursuance of an order made underany
law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the earliest
opportunity of making a representation against the order."
Section 3 sub-section (3) of the COFEPOSA Act provides as under:
"For the purposes of clause (5) of Article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order of
the grounds on which the order has been made shall be made as soon as
may be after the detention, but ordinarily not later than five days, and in
exceptional circumstances and for reasons to be recorded in writing, not
later than fifteen days, from the date of detention."
The true meaning and import of clause (5) of Article 22 of the
Constitution was explained by this Court in Khudiram Das v. State of
W.B [(1975) 2 SCC 81 : 1975 SCC (Cri) 435 : (1975) 2 SCR 832] : (SCC p.
87, para 5)
"The constitutional imperatives enacted in this Article are two-fold: (1)
the detaining authority must, as soon as may be, that is, as soon as
practicable after the detention, communicate to the detenu the grounds
on which the order of detention has been made, and (2) the detaining
authority must afford the detenu the earliest opportunity of making a
representation against the order of detention. These are the barest
minimum safeguards which must be observed before an executive
authority can be permitted to preventively detain a person and thereby
drown his right of personal liberty in the name of public good and social
security."
It will be seen that one of the basic requirements of clause (5) of Article 22
is that the authority making the order of detention must, as soon as may
be, communicate to the detenu the grounds on which the order of
detention has been made and under sub-section (3) of Section 3 of the
COFEPOSA Act, the words "as soon as may be" have been translated to
mean "ordinarily not later than five days and in exceptional circumstances
and for reasons to be recorded in writing not later than fifteen days, from
the date of detention". The grounds of detention must therefore be
furnished to the detenu ordinarily within five days from the date of
detention, but in exceptional circumstances and for reasons to be recorded
in writing, the time for furnishing the grounds of detention may stand
extended but in any event it cannot be later than fifteen days from the
date of detention. These are the two outside time-limits provided by
Section 3 sub-section (3) of the COFEPOSA Act because unless the grounds
of detention are furnished to the detenu, it would not be possible for him to
make a representation against the order of detention and it is a basic
requirement of clause (5) of Article 22 that the detenu must be
afforded the earliest opportunity of making a representation against his
detention. If the grounds of detention are not furnished to the detenu
within five or fifteen days, as the case may be, the continued detention of
the detenu would be rendered illegal both on the ground of violation of
clause (5) of Article 22 as also on the ground of breach of requirement of
Section 3 sub-section (3) of the COFEPOSA Act. Now it is obvious that
when clause (5) of Article 22 and sub-section (3) of Section 3 of the
COFEPOSA Act provide that the grounds of detention should be
communicated to the detenu within five or fifteen days, as the case may
be, what is meant is that the grounds of detention in their entirety must be
furnished to the detenu. If there are any documents, statements or other
materials relied upon in the grounds of detention, they must also be
communicated to the detenu, because being incorporated in the grounds of
detention, they form part of the grounds and the grounds furnished to the
detenu cannot be said to be complete without them. It would not therefore
be sufficient to communicate to the detenu a bare recital of the grounds of
detention, but copies of the documents, statements and other materials
relied upon in the grounds of detention must also be furnished to the
detenu within the prescribed time subject of course to clause (6) of Article
22 in order to constitute compliance with clause (5) of Article 22 and
Section 3 sub-section (3) of the COFEPOSA Act. One of the primary objects
of communicating the grounds of detention to the detenu is to enable the
detenu, at the earliest opportunity, to make a representation against his
detention and it is difficult to see how the detenu can possibly make an
effective representation unless he is also furnished copies of the
documents, statements and other materials relied upon in the grounds of
detention. There can therefore be no doubt that on a proper construction
of clause (5) of Article 22 read with Section 3 sub-section (3) of the
COFEPOSA Act, it is necessary for the valid continuance of detention that
subject to clause (6) of Article 22 copies of 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 or in any event not later
than five days and in exceptional circumstances and for reasons to be
recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with Section 3 sub-
section (3) is not satisfied, the continued detention of the detenu would be
illegal and void.
7. Now, in the present case, the grounds of detention were served upon
the detenu on June 4, 1980 at the time when he was taken under
detention, but these grounds which were served upon the detenu did not
include the documents, statements and other materials relied upon in the
grounds and forming part of them. The detenu, therefore, by his letter
dated June 6, 1980, requested the Deputy Secretary to send at his earliest
"all statements, documents, materials" relied upon in the grounds of
detenion in order to enable him to make an effective representation against
his detention. But copies of these documents, statements and other
materials were not supplied to the detenu until July 11, 1980 and so far as
the tapes were concerned, their copies were furnished to the detenu even
later on July 20, 1980. It is clear from the discussion in the preceding
paragraph that under clause (5) of Article 22 read with Section 3 sub-
section (3) of the COFEPOSA Act, the detaining authority was bound to
supply copies of the documents, statements and other materials relied
upon in the grounds of detention to the detenu within five days from the
date of detention, that is, on or before June 9, 1980 and in any event, even
if we assume that there were exceptional circumstances and reasons for
not supplying such copies within five days were recorded in writing, such
copies should have been supplied to the detenu not later then fifteen days
from the date of detention, that is, on or before June 19, 1980. It was, of
course, not the case of the detaining authority before us that reasons for
not supplying copies of the documents, statements and other materials to
the detenu within five days were recorded in writing nor were any such
reasons produced before us, but even if there were any such reasons
recorded in writing, coupled with the existence of exceptional
circumstances, the detaining authority could not delay the supply of copies
of the documents, statements and other materials to the detenu beyond
June 19, 1980. Even if there were any circumstances justifying the delay in
supply of copies of documents, statements and other materials beyond
June 19, 1980, it would afford no defence to the detaining authority, for
clause (5) of Article 22 read with Section 3 sub-section (3) of COFEPOSA
Act lays down an inexorable rule of law that the grounds of detention shall
be communicated to the detenu not later than fifteen days from the date of
detention. There are no exceptions or qualifications proved to this rule
which operates in all its rigour and strictness and if there any breach of this
rule, it must have the effect of invalidating the continued detention of the
detenu. There can therefore be no doubt that, in the present case, the
continuance of the detention of the detenu after June 19, 1980 was
unconstitutional and it was not open to the detaining authority to seek to
justify the continued detention on the ground that there were sufficiently
compelling reasons which prevented it from supplying copies of documents,
statements and other materials to the detenu until July 11, 1980 and
copies of the tapes until July 20, 1980.
8. It may be pointed out that even if our interpretation of the words "the
grounds on which the order has been made" in clause (5) of Article 22 and
Section 3 sub-section (3) of the COFEPOSA Act be wrong and these words
do not include the documents, statements and other materials relied upon
in the grounds of detention, it is unquestionable that copies of such
documents, statements and other materials must be supplied to the detenu
without any unreasonable delay, because otherwise the detenu would not
be able to make an effective representation and the fundamental right
conferred on him to be afforded the earliest opportunity of making a
representation against his detention would be denied to him. The right to
be supplied copies of the documents, statements and other materials relied
upon in the grounds of detention without any undue delay 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. This would seem to be clear on a fair interpretation
of clause (5) of Article 22 but apart from this view which we are inclined to
take on principle as a matter of interpretation, the law is now well settled
as a result of several decisions of this Court commencing from Ramchandra
A. Kamat v. Union of India [(1980) 2 SCC 270, 273 : 1980 SCC (Cri) 415,
417] that:
"When the grounds of detention are served on the detenu, he is entitled to
ask for copies of the statements and documents referred to in the grounds
of detention to enable him to make an effective representation. When the
detenu makes a request for such documents, they should be supplied to
him expeditiously ... when copies of such documents are asked for by the
detenu, the detaining authority should be in a position to supply them with
reasonable expedition. What is reasonable expedition will depend on the
facts of each case."
11. These were the reasons for which we allowed the writ petition and
directed immediate release of the detenu from detention. We may pointout
that we have not pronounced upon the validity of the order of detention
but merely held the continued detention of the detenu to be illegal on the
ground of non-compliance with the requirements of clause (5) of Article 22
and sub-section (3) of Section 3 of the COFEPOSA Act, and therefore
nothing that is said by us in this judgment should be considered as an
expression of opinion on the validity or correctness of the order of
detention as made. We are unable to appreciate as to why the Customs
Department has not yet filed a charge-sheet against the detenu for
prosecuting him in respect of the incidents referred to in the grounds of
detention even though more than six months have passed since then. If
the investigation reveals that the detenu was responsible for smuggling or
abetting the smuggling of goods in contravention of law, the Customs
Officers should adopt criminal proceedings against the detenu as quickly as
possible and try to bring him to book in the criminal courts. We hope and
trust that there will be no unreasonable delay on the part of the Customs
Officers in completing the investigation of the cases against the detenu and
prosecuting him in the criminal courts if the evidence gathered by them in
the course of the investigation justifies such a course."
8. He submits that in that case representation was considered however it
was considered belatedly and in the light of that fact the Hon‟ble Supreme Court
directed the petitioner of that case to release immediately. On the point of
representation and not considering the same in the light of preventive detention, he
relied on judgment in the case of "B. Sundar Rao and Others V. State of Orissa
(1972) 3 SCC 11 wherein para 20 the Hon‟ble Supreme Court has held as under:-
"20. It was further argued that though the petitioners had made a
representation to the Government as required by Section 7 of the Act, the
Government did not appear to have considered this representation. The
petitioners have specifically alleged in their additional grounds that the
representation submitted by the petitioners against the order was not
considered by the State Government and this allegation, it is conceded, has
not been controverted by the Government though an opportunity was given
to file an affidavit in opposition. All that has been stated is that the
representation had been received by the Government through the District
Magistrate, Gunupur on May 17, 1971. The Government had approved the
detention order on April 27, 1971, and made the statutory reference to the
Advisory Board on May 11, 1971. Perhaps the representation received by
the Government on May 17, 1971, might have been forwarded to the
Advisory Board for its consideration. But that does not absolve the
Government from applying its own mind to this representation and taking a
decision on it. It has been pointed out by this Court in Jayanarayan
Sukul v. State of West Bengal, [(1970) 1 SCC 219 : 1970 SCC (Cri) 92 :
(1970) 3 SCR 225] that four principles are to be borne in mind."
9. Relying on aforesaid judgment, he submits that the Hon‟ble Supreme Court
has held that even if representation is filed not before any competent authority of the
government but that does not absolve the government. He further submits that
representation is must and in absence of that order has been passed and to
substantiate this argument, he relied on judgment in the case of " Smt. Gracy Vs.
State of Kerala and Another" (1991) 2 SCC 1 wherein para 5 the Hon‟ble
Supreme Court has held as under:-
"5. The constitutional mandate in Article 22(5) was considered recently by
a Constitution Bench in K.M. Abdulla Kunhi v. Union of India [(1991) 1 SCC
476 : JT (1991) 1 SC 216] , in view of some conflict in earlier decisions of
this Court regarding the detaining authority's obligation to consider the
detenu's representation independently of the Advisory Board's duty in this
behalf. The Constitution Bench held as follows : (SCC pp. 483-84, para 11)
"It is now beyond the pale of controversy that the constitutional right to
make representation under clause (5) of Article 22 by necessary implication
guarantees the constitutional right to a proper consideration of the
representation. Secondly, the obligation of the government to afford to the
detenu an opportunity to make representation and to consider such
representation is distinct from the government's obligation to refer the case
of detenu along with the representation to the Advisory Board to enable it
to form its opinion and send a report to the government. It is implicit in
clauses (4) and (5) of Article 22 that the government while discharging its
duty to consider the representation, cannot depend upon the views of the
Board on such representation. It has to consider the representation on its
own without being influenced by any such view of the Board. The
obligation of the government to consider the representation is different
from the obligation of the Board to consider the representation at the time
of hearing the references. The government considers the representation to
ascertain essentially whether the order is in conformity with the power
under the law. The Board, on the other hand, considers the representation
and the case of the detenu to examine whether there is sufficient case for
detention. The consideration by the Board is an additional safeguard and
not a substitute for consideration of the representation by the government.
The right to have the representation considered by the government, is
safeguarded by clause (5) of Article 22 and it is independent of the
consideration of the detenu's case and his representation by the Advisory
Board under clause (4) of Article 22 read with Section 8(c) of the Act. (See
: Sk. Abdul Karim v. State of W.B. [(1969) 1 SCC 433] ; Pankaj Kumar
Chakrabarty v. State of W.B. [(1969) 3 SCC 400 : (1970) 1 SCR 543]
; Shayamal Chakraborty v. Commissioner of Police, Calcutta [(1969) 2 SCC
426] ; B. Sundar Rao v. State of Orissa [(1972) 3 SCC 11] ; John
Martin v. State of W.B. [(1975) 3 SCC 836 : 1975 SCC (Cri) 255 : (1975) 3
SCR 211] ; Sk. Sekawat v. State of W.B. [(1975) 3 SCC 249 : 1974 SCC
(Cri) 867 : (1975) 2 SCR 161] ; and Haradhan Saha v. State of
W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816 : (1975) 1 SCR 778]
(emphasis supplied)"
10. He further submits that there are four principles to be complied with in
passing such order which has been held by the Hon‟ble Supreme Court in the case of
"Jayanarayan Sukul V. State of West Bengal" (1970) 1 SCC 219 wherein para
10 and 20 the Hon‟ble Supreme Court has held as under:-
"10. There have been five recent decisions of this Court on the
provisions of this Act particularly in regard to the right of the detenu to
have his representation considered by the appropriate Government and the
obligation of the appropriate Government in that behalf. In Sk. Abdul
Karim v. State of W.B. [(1969) 1 SCC 433] this Court held that the
appropriate Government could not be said to discharge the obligation
merely by forwarding the representation of the detenu to the Advisory
Board. Article 22 of the Constitution guarantees the right of a detenu to
have a proper consideration of the representation by the appropriate
authority.
20. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound to give
an opportunity to the detenu to make a representation and to consider the
representation of the detenu as early as possible. Secondly, the
consideration of the representation of the detenu by the appropriate
authority is entirely independent of any action by the Advisory Board
including the consideration of the representation of the detenu by the
Advisory Board. Thirdly, there should not be any delay in the matter of
consideration. It is true that no hard and fast rule can be laid down as to
the measure of time taken by the appropriate authority for consideration
but it has to be remembered that the Government has to be vigilant in the
governance of the citizens. A citizen's right raises a correlative duty of the
State. Fourthly, the appropriate Government is to exercise its opinion and
judgment on the representation before sending the case along with the
detenu's representation to the Advisory Board. If the appropriate
Government will release the detenu the Government will not send the
matter to the Advisory Board. If however the Government will not release
the detenu the Government will send the case along with the detenu's
representation to the Advisory Board. If thereafter the Advisory Board will
express an opinion in favour of release of the detenu the Government will
release the detenu. If the Advisory Board will express any opinion against
the release of the detenu the Government may still exercise the power to
release the detenu."
11. He submits that in the light of four principles as discussed in para 20 of the
said judgment, order has not been passed. He further submits that orders are not
based on the subjective satisfaction which is one of parameters as has been held by
the Hon‟ble Supreme Court in the case of "Ram Manohar Lohia V. State of Bihar
and Another" (1966) 1 SCR 709 wherein para 10 the Hon‟ble Supreme Court has
held as under:-
"10. Under this rule a Government can make an order of detention against
a person if it is satisfied that it is necessary to do so to prevent him from
acting in a manner prejudicial, among other things, to public safety and the
maintenance of public order. The detention order in this case is based on
the ground that it was necessary to make it to prevent Dr Lohia from acting
in any manner prejudicial to public safety and the maintenance of law and
order. I will, in discussing the contention of Dr Lohia, proceed on the basis
as if the order directing detention was only for preventing him from acting
in a manner prejudicial to the maintenance of law and order. I will consider
what effect the inclusion in the order of detention of a reference to the
necessity for maintaining public safety has, later. The question is whether
an order could be made legally under the rule for preventing disturbance of
law and order. The rule does not say so. The order, therefore, would not be
in terms of the rule unless it could be said that the expression "law and
order" means the same thing as "public order" which occurs in the rule.
Could that then be said? I find no reason to think so. Many of the things
mentioned in the rule may in a general sense be referable to the necessity
for maintaining law and order. But the rule advisedly does not use that
expression."
12. He further submits that even representation is considered belatedly and
the detention is continued that is illegal as has been held by the Hon‟ble Supreme
Court in the case of "Moosa Husein Sanchar Vs. State of Gujarat and others"
(1993) 1 SCC 511 wherein para 13 and 14 the Hon‟ble Supreme Court has held as
under:-
"13. These decisions show that in a case where the representation has
been received before the case is referred to the Advisory Board, the
appropriate Government must consider the same before the matter is
referred to the Advisory Board and it would be justified in not considering
the same only if there is no reasonable time to consider and dispose of the
representation before the case is referred to the Advisory Board and in
such case, the representation may be forwarded to the Advisory Board
along with the case of the detenu. In the instant case, we find that the
representation dated March 15, 1991, was received by the detaining
authority on March 18, 1991, and the case of the appellant was referred to
the Advisory Board on March 25, 1991, and the representation was actually
considered by the Advisory Board on April 30, 1991. It is not the case of
the respondents -- and this is the important distinction in this case -- that
there was no time for the State Government, to consider the said
representation of the appellant before referring the matter of the
appellant's detention to the Advisory Board on March 25, 1991, or before
the said matter was considered by the Advisory Board. The only
explanation that has been offerred by the State Government is that there
were holidays on March 23, 1991 and March 24, 1991, and there was
hardly five days' time with the authorities between the time they received
the representation of the appellant and the time the reference was made to
the Advisory Board. The State Government has not given any reason to
indicate that the said period was insufficient for a proper consideration of
the representation of the appellant by the State Government. Moreover,
even after the reference had been made on March 25, 1991, the
representation of the appellant could have been considered by the State
Government and it could have been forwarded to the Advisory Board along
with the decision of the State Government on the said representation.
Instead of adopting this course, the State Government forwarded the
representation to the Advisory Board and took up the said representation
for consideration after the receipt of the opinion of the Advisory Board and
rejected it by order dated May 13, 1991. As a result the representation of
the detenu which was submitted on March 15, 1991 was considered by the
State Government only on May 13, 1991. There was, thus, inordinate delay
on the part of the State Government in considering the representation of
the appellant and the said delay in the disposal of the representation of the
appellant has rendered the continued detention of the appellant as illegal.
14. For the reasons aforementioned, we have passed the order dated
December 1, 1992 whereby we have allowed the appeal and set aside the
judgment of the High Court of Gujarat dated October 1, 1991 in Special
Civil Application No. 869 of 1991 and allowed the said writ petition filed by
the appellant and quashed the order of detention No. SB.
IV/PSA/1791/382(1), dated February 21, 1991 and have directed that the
appellant be set at liberty forthwith unless he was required in any other
case."
13. Learned counsel for the petitioner further submits that a preventive
detention order that is passed without examining a live and proximate link between
the event and the detention is tantamount to punishment without trial as has been
held by the Hon‟ble Supreme Court in the case of "Sama Aruna V. State of
Telangana" (2018) 12 SCC 150 wherein para 14 the Hon‟ble Supreme Court has
held as under:-
"14. Section 3(1) confers the power of detention in the
following terms:
"3. Power to make orders detaining certain persons.--(1) The
Government may, if satisfied with respect to any bootlegger, dacoit, drug
offender, goonda, immoral traffic offender or land grabber that with a view
to preventing him from acting in any manner prejudicial to the maintenance
of public order, it is necessary so to do, make an order directing that such
person be detained."
The purpose for which a detention order may be passed is confined to
"preventing him from acting in any manner prejudicial to the maintenance
of public order."
14. He further submits that order is malafidely passed. According to him the
administrative action is abuse of power. On the ground of malafide he relied in the
case of " State of Bihar V. P.P. Shrama reported in 1992 Supp. (1) SCC 222
wherein para 50 the Hon‟ble Supreme Court has held as under:-
"50. Mala fides means want of good faith, personal bias, grudge, oblique
or improper motive or ulterior purpose. The administrative action must be
said to be done in good faith, if it is in fact done honestly, whether it is
done negligently or not. An act done honestly is deemed to have been
done in good faith. An administrative authority must, therefore, act in a
bona fide manner and should never act for an improper motive or ulterior
purposes or contrary to the requirements of the statute, or the basis of the
circumstances contemplated by law, or improperly exercised discretion to
achieve some ulterior purpose. The determination of a plea of mala fide
involves two questions, namely (i) whether there is a personal bias or an
oblique motive, and (ii) whether the administrative action is contrary to the
objects, requirements and conditions of a valid exercise of administrative
power."
15. He further submits that the detention order has been passed on vague
ground and without application of mind and merely a narration of recommendations of
other authorities without subjective satisfaction of the D.C. To buttress his argument,
he relied in the in case of "Prabhu Dayal Deorah V. the District Magistrate,
Kamrup & Ors. (1974) 1 SCC 103 wherein para 13 the Hon‟ble Supreme Court
has held as under:-
"13. As one of the grounds communicated to the petitioners is found to be
vague, the detention orders must be pronounced to be bad on the basis of
a series of decisions of this Court [see State of Bombay v. Atma Ram
Sridhar Vaidya; Dr Ram Krishan Bhardwaj v. State of Delhi; Motilal
Jain v. State of Bihar [AIR 1968 SC 1509 : (1968) 3 SCR 587 : 1969 Cri LJ
33] ; and Mishrilal Jain v. District Magistrate, Kamrup [(1971) 3 SCC 693 :
1972 SCC (Cri) 34] ]. These decisions followed the decision of the Federal
Court in Keshav Talpade v. Emperor [AIR 1943 FC 1, 8 : 1943 FCR 49 : 44
Cri LJ 558] where it was said:
"If a detaining authority gave four reasons for detaining a man, without
distinguishing between them, and any two or three of the reasons are held
to be bad, it can never be certain to what extent the bad reasons operated
on the mind of the authority or whether the detention order would have
been made at all if only one or two good reasons had been before them."
We cannot predicate that if the first ground was excluded, the detaining
authority would have passed the order."
16. On these grounds Mr. Singh, learned counsel for the petitioner submits that
entire proceeding is against the mandate of law and the petitioner has been illegally
directed to be detained by the authority and the liberty of the petitioner has been
taken away in a very light way that too by the government which is welfare state and
protector of the fundamental right.
17. Per contra Mr. Manoj Kumar, learned G.A.-III appearing on behalf of the
respondent-State submits that order was passed by the district administration on
08.08.2022 which was confirmed on 12.08.2022. He further submits that by way of
Annexure-11 of the writ petition representation was filed on 18.08.2022 and the order
has already been confirmed on 12.08.2022 in view of sub-section 3 of section 12 of
the Act and time was out and in that view of the matter order was ought to be
confirmed within 12 days and not later than 15 days in the light of proviso of the Act
that is why order has been passed. He draws the attention of the Court to Annexure-E
of the counter-affidavit which is order of the Advisory Board dated 02.09.2022. By
way of referring the said order he submits that detenu was heard by the Advisory
Board in which he has disclosed that he is on bail in most of the cases. On that day
the detenu has also stated that he has filed a representation though the same has
been denied by the Deputy Secretary, Department of Home (Prison) & Disaster
Management who was present before the Advisory Board. He further submits that
detention of the petitioner with regard to the cases against him are of earlier years is
not a ground of interfering under Article 226 of the Constitution of India. To buttress
his argument, he relied on judgment in the case of "Subramanian Vs. State of
Tamil Nadu and Another" (2012) 4 SCC 699 wherein para 14, 15, 17, 22 the
Hon‟ble Supreme Court has held as under:-
"14. It is well settled that the court does not interfere with the
subjective satisfaction reached by the detaining authority except in
exceptional and extremely limited grounds. The court cannot substitute its
own opinion for that of the detaining authority when the grounds of
detention are precise, pertinent, proximate and relevant, that sufficiency of
grounds is not for the court but for the detaining authority for the
formation of subjective satisfaction that the detention of a person with a
view to preventing him from acting in any manner prejudicial to public
order is required and that such satisfaction is subjective and not objective.
The object of the law of preventive detention is not punitive but only
preventive and further that the action of the executive in detaining a
person being only precautionary, normally, the matter has necessarily to be
left to the discretion of the executive authority. It is not practicable to lay
down objective rules of conduct in an exhaustive manner. The satisfaction
of the detaining authority, therefore, is considered to be of primary
importance with certain latitude in the exercise of its discretion.
15. The next contention on behalf of the detenu, assailing the detention
order on the plea that there is a difference between "law and order" and
"public order" cannot also be sustained since this Court in a series of
decisions recognised that public order is the even tempo of life of the
community taking the country as a whole or even a specified locality.
[Vide Pushpadevi M. Jatia v. M.L. Wadhawan [(1987) 3 SCC 367 : 1987 SCC
(Cri) 526] , SCC paras 11 & 14; Ram Manohar Lohia v. State of Bihar [AIR
1966 SC 740 : 1966 Cri LJ 608 : (1966) 1 SCR 709] ; Union of
India v. Arvind Shergill [(2000) 7 SCC 601 : 2000 SCC (Cri) 1422] , SCC
paras 4 & 6; Sunil Fulchand Shah v. Union of India [(2000) 3 SCC 409 :
2000 SCC (Cri) 659] , SCC para 28 (Constitution Bench); Commr. of
Police v. C. Anita [(2004) 7 SCC 467 : 2004 SCC (Cri) 1944] , SCC paras 5,
7 & 13.]
17. It is also seen from the grounds of detention that because of the threat
by the detenu and his associates by showing weapons, the nearby
shopkeepers closed their shops out of fear and auto drivers took their autos
from their stand and left the place. According to the detaining authority, the
above scene created a panic among the public. In such circumstances, the
scene created by the detenu and his associates cannot be termed as only
law and order problem but it is public order as assessed by the detaining
authority who is supposed to safeguard and protect the interest of public.
Accordingly, we reject the contention raised by the learned Senior Counsel
for the appellant.
22. Even otherwise, as rightly pointed out by the learned counsel for the
State, this argument is solely baseless since the detenu simultaneously
made a representation to the Government and the Government had fully
considered his representation and rejected the same on 12-8-2011. Further,
the Advisory Board has also rejected the representation of the detenu by
order dated 23-8-2011 thereby confirming the detention. This is also clear
from the information furnished in the counter-affidavit filed on behalf of the
respondent State before this Court."
18. He further elaborates his argument by submitting that petitioner is a
habitual and professional criminal and he is facing charges of several sections of I.P.C.
including section 302 of the I.P.C. He further submits that the petitioner is also an
accused in a case in the State of Bihar. To negate the argument of the learned counsel
for the petitioner, with regard to Article 21 and 22 of the Constitution of India, he
relied on judgment in the case of "Dropti Devi and Another Vs. Union of India &
Others" (2012) 7 SCC 499 wherein para 70 the Hon‟ble Supreme Court has held as
under:-
"70. On the touchstone of constitutional jurisprudence, as reflected by
Article 22 read with Articles 14, 19 and 21, we do not think that the
impugned provision is rendered unconstitutional. There is no constitutional
mandate that preventive detention cannot exist for an act where such act is
not a criminal offence and does not provide for punishment. An act may
not be declared as an offence under law but still for such an act, which is
an illegal activity, the law can provide for preventive detention if such act is
prejudicial to State security. After all, the essential concept of preventive
detention is not to punish a person for what he has done but to prevent
him from doing an illegal activity prejudicial to the security of State. Strictly
speaking, preventive detention is not regulation (many people call it that
way), it is something much more serious as it takes away the liberty of a
person but it is accepted as a necessary evil to prevent danger to the
community. The law of preventive detention arms the State with
precautionary action and must be seen as such. Of course, the safeguards
that the Constitution and preventive detention laws provide must be strictly
insisted upon whenever the court is called upon to examine the legality and
validity of an order of preventive detention."
19. Relying on aforesaid judgment, he submits that the impugned provision is
not rendered unconstitutional as has been held by the Hon‟ble Supreme Court in the
case of „Dropti Devi" (Supra).
20. By way of referring Annexure C of the counter-affidavit, he submits that
order as well as documents have already been supplied to the petitioner on
08.08.2022 itself. He further submits that in view of Annexure-11 of the writ petition,
the said representation was filed on 18.08.2022 however there is no endorsement on
the said application of receiving by any of the authority concerned. He further submits
that this aspect of the matter has been considered by the Division Bench in the case
of " Om Prakash Sah V. M.M. Bhadani & Brothers & Ors." W.P.(D.B-H.B.)
No. 353 of 2012 wherein para 28 and 29 it has been held as under:-
"28. We find that the impugned orders elaborately deal with the report and
material against the petitioner and the compelling situation for passing the
order of his detention. This Court cannot substitute its subjective
satisfaction on ignoring that of the detaining authority and interfere with
the orders, if the provision of detention under the aforesaid law had been
invoked on sufficient ground and following the prescribed procedure.
29. In Baby Devassy Chully Vs. Union of India & Ors. [(2013) 4 SCC 531], it
has been reiterated and held that whether a person is required to be
detained for a particular period and there is compelling necessity of
detaining him, are matters of subjective satisfaction of the detaining
authority. It is also well settled that if such order is passed on considering
materials and compelling situation, the same warrants no interference."
21. He further submits that subjective satisfaction is the subject matter of the
authority concerned and reasoned order has been passed by the authority concerned
and in this view of the matter no interference is required by this Court. To buttress
his argument, he relied in the case of "Baby Devassy Chully @ Bobby V. Union of
India & Others" (2013)4 SCC 531 wherein para 13 and 17 the Hon‟ble Supreme
Court has held as under:-
"13. In a series of decisions, this Court has held that it is the subjective
satisfaction of the detaining authority whether a person has to be detained
for a particular period of time or not. In the impugned grounds of
detention, the detaining authority has narrated all the reasons for passing
the detention order detaining the appellant with a view to prevent him from
abetting the smuggling of goods in future.
17. For the same reason, the other contention, namely, that there is no
compelling necessity to pass the order of detention, is to be rejected. As a
matter of fact, the learned counsel for the detaining authority took us
through various grounds/details/materials adverted to in the impugned
order [Baby Devassy Chully v. Union of India, Criminal Writ Petition No.
1500 of 2005, order dated 16-3-2006 (Bom)] and we are satisfied that it
cannot be claimed that there was no compelling necessity to pass the order
of detention. We have already pointed out that it is the subjective
satisfaction of the detaining authority whether the order of detention is to
be invoked or not. Accordingly, we reject the above contention also."
22. On these grounds, learned counsel for the State submits that there is no
merit in the writ petition and the same may kindly be dismissed.
23. By way of reply, Mr. Singh, learned counsel for the petitioner submits
that order was passed on 08.08.2022 which was confirmed by order dated 12.08.22
and in that view of the matter sufficient opportunity has not been provided to the
petitioner. On this ground itself inference of this court is required.
24. In view of above submission of the learned counsel for the parties the
court has gone through the materials on record and perused the order dated
08.08.2022 contained in Annexure-10 to the writ petition which is order passed by the
District Magistrate, Sahibganj by which petitioner has been asked to be detained for
three months. In the impugned order there are reference of cases pending against
this petitioner which are as under:-
S.I. No. P.S. Case Under Sections
1. Taljhari P.S. Case 341/323/504/509/397/337/338/34 of the
No. 99/2017 I.P.C.
2. Taljhari P.S. Case 175/379/307 of the I.P.C and 4/54 J.M.M.
No. 80/2021 Rules 2004 and 21(A) 2116 of the M.M.D.A.
Act, 0957
3. Taljhari P.S. Case 147/148/149/342/323/353/332/336/506/379
No. 113/18 of the I.P.C.
4. Taljhari P.S. Case 379/175/414 of the I.P.C. and 3/4/54 of the
No. 116/2018 J.M.M. Rules, 2004
5. Muffasil P.S. Case 379/411/304/34 of the I.P.C. and 54 of the
No. 141/18 J.M.M. Rules, 2004
6. Taljhari P.S. Case 386/387 of the I.P.C.
No. 21/2019
7. Muffasil P.S. Case 280/282/379/427/34 of the I.P.C. and 20/54
No. 26/2019 of the J.M.M. Rules 2004
8. Borio (J) P.S. Case 341/393/504/506/417/420/34 of the I.P.C.
No. 261/2020
9. Muffasail P.S. Case 341/323/302/201/504/506/34 of the I.P.C.
No. 18/2021
10. Muffasil P.S. Case 147/148/149/384/385/504/506 of the I.P.C.
No. 62/2021 and 27 of the Arms Act
11. Taljhari P.S. Case 175/39/307 of the I.P.C. 4/54 of the J.M.M.
No. 76/2021 Rules, 2004 and 21(A) 21(6)/22 of M.M.D.A.
12. Taljhari P.S. Case MMDRA Act and 3/4/5 of the Explosive Act
No. 77/2021
13. Borio (J) P.S. Case 323/504/506/420/120(B) of the I.P.C. and
No. 58 of 22 section 3 (1) SC/ST Act.
14. Rajmahal P.S. Case 465/471 of the I.P.C. and 25 (1-B)A/26/35 of
No. 67/2022 the Arms Act
15. Muffasil P.S. Case 403/420 of the I.P.C.
No. 26/22
16. Muffasil P.S. Case 147/148/149/349/120(B) of the I.P.C. and
No. 27/2022 27 of the Arms Act
17. Taljhari P.S. Case 287/304A/34 of the I.P.C.
No. 10/2008
18. SC/ST Case No. 341/323/504/379/34 of the I.P.C. and under
18/14 section ¾ SC and ST Act
19. Borio (J) P.S. Case 448/353/379/506/504 I.P.C.
No. 242/2014
20. Taljhari P.S. Case 427/504/506/34 of the I.P.C. and under
No. 100/2020 section ¾ SC & ST Act
21. Gumla P.S. Case No. 418/420/34 of the I.P.C., 72/72a/74 of the
207/2021 Information Technology (Amendment) Act,
2000, 21/24/26 of the Indian Telegraph Act,
1933 and 5/6 of the Official Sitax Act 1923
22. Muffasil P.S. Case 147/148/149/341/427/307/504/506 I.P.C.
No. 30/22 and 27/35 of the Arms Act
23. Kankarbag P.S. Case 147/148/149/323/324/337/427/307 of the
No. 43/14 I.P.C. and 25(1-B)A/26/35/27 of the Arms
Act.
25. Looking into these cases, it transpires that at least 7 to 11 cases are of
the year, 2021 and 2022. It cannot be ruled out that the petitioner is not having any
criminal antecedent. The cases are registered under sections 307 and 302 I.P.C.
even under section 25 Arms Act. Admittedly, in view of Annexure-C to the counter-
affidavit, the said order was communicated to the petitioner on the same day i.e.
08.08.2022 however this is admitted fact that representation was filed on
18.08.2022 contained in Annexure-11 to the writ petition and there is no
endorsement of receiving in that representation. Thus, the petitioner himself has filed
representation after lapses of 10 days whereas order was already confirmed on
12.08.2022.
26. Further the case relied by the learned counsel for the petitioner in the
case of Kamla Kanyalal Khushalani (supra) the Hon‟ble Supreme Court has held that if
constitutional safeguard has not been complied with resulting in the orders of the
detention being set aside whereas in the case in hand all the constitutional safeguards
have been complied and the matter has been placed before the Advisory Board where
the Advisory Board affirmed the detention order thus, case is not helping the
petitioner. Further the case relied by the learned counsel for the petitioner in the case
of Smt. Icchu Devi Choraria(supra) the matter was related to the representation and
detaining authority is under the constitution obligation under Article 22 (5) to consider
the representation of the detenue as early as possible and in the case in hand the
district administration has denied of receiving the representation of the detenu and
the same was filed on 18.08.2022 whereas the order was affirmed on 12.08.2022
and after considering the conduct and criminal antecedent of the detenu order was
passed. The case relied by the learned counsel for the petitioner in the case of
Smt. Gracy(supra) the detenu was arrested on the accusation of illicit cultivation of
ganja plants and main issue was before the Hon‟ble Supreme Court is that if
representation is addressed only to the advisory board instead of the Central
government, the Central Government is obliged to consider it independently whereas
the case in hand detenu has approached by Annexure-11 on 18.08.2022 and
receiving was denied and after evaluating the materials order has been passed and
thus this case is also not helping the petitioner. The case relied by the learned counsel
in the case of Jayanarayan Sukul (supra) truly the Hon‟ble Supreme Court dealt with
four principles to be followed in regard to the representation of the detenue and in the
present case all the four principles have been followed and complied by the district
administration in passing the impugned order thus this case is also not helping the
petitioner. The case relied by the learned counsel in the case of Ram Manohar Lohia
(supra) is related to the habeas corpus whereas the case in hand habeas corpus is not
the issue, thus this case is also not helping the petitioner. Further learned counsel has
relied in the case of Moosa Husein Sanchar(supra) where the question before the
Hon‟ble Supreme Court was that even if representation addressed to advisory board is
received by State Government before the reference to the Board, State Government is
obliged to consider and dispose of the same expeditiously and even after reference to
the Board, State Government should consider the representation whereas the case in
hand decision to detain the petitioner for three months was passed on 08.08.2022 and
same was communicated on 12.08.2022 and representation of the petitioner was
filed later on which was denied by the State.
27. The ordersheet is of the Advisory Board contained in Annexure-E of the
counter-affidavit of the respondent nos. 3 and 4 speaks that detenu was heard by the
Advisory Board. Filing of the representation was disclosed before the Advisory Board
however on that day the same was denied by the Deputy Secretary, Department of
Home (Prison) & Disaster Management before the Advisory Board. This is not a
case that after receiving of the order, the petitioner has immediately moved and filed
representation before the concerned authority and pursuant to that representation
was not considered by the authority concerned. For making out a case of malafide,
respondents are required to be made under personal capacity and by name. Looking
into the case in hand, this malafide is not there. The malafide must reflect from the
order which is lacking in case in hand. On the point of malafide, the argument of the
learned counsel for the petitioner is not tenable. The judgments relied by the learned
counsel for the petitioner are not in dispute. There is no doubt that if the liberty of
any person is taken wrongfully, the Court is required to interfere with it as has been
held by the Hon‟ble Supreme Court in those cases relied by the learned counsel for
the petitioner. In the case in hand the order dated 08.08.2022 is a reasoned order
which speaks of indulgence of this petitioner in several other cases.
28. The impugned orders elaborately deal with the report and material
against the petitioner and the compelling situation for passing the order of his
detention. The Court is not inclined to substitute the subjective satisfaction of the
authorities. The authorities have passed the order on subjective satisfaction. On the
point of Article 22 read with Articles 14, 19 and 21 of the Constitution of India the
case relied in Dropti Devi (supra) is helping the respondents. There are many
cases pending against the petitioner.
29. In view of above facts, reasons and analysis, no interference is required
by this Court. Accordingly, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
