In the High Court of Jharkhand at Ranchi
W.P.(Cr.) No.272 of 2009
Babar Khan @ Rasid Hussain..............................Petitioner
VERSUS
1.State of Jharkhand
2. Secretary, Home Department,
Government of Jharkhand
3.Deputy Secretary, Home Department,
Government of Jharkhand
4.District Magistrate, East Singhbhum
5. Superintendent of Police, Singhbhum East... Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : M/s. M.A.Niyazi and K.S.Nanda
For the State : Mr.R.N.Roy, G.P.III
Reserved on 28.8.2009 Pronounced on 9.9.2009
4. 9.9.09
. While the petitioner was in jail custody at Jamshedpur in
connection with Mango P.S. case no.148 of 2009, he was served
with the order dated 17.5.2009 (Annexure 1) passed under section
12(1) of the Bihar (Jharkhand) Crime Control Act, 2002 (hereinafter
referred to as ‘the Act’) by the District Magistrate, East Singhbhum,
Jamshedpur, respondent no.4 on the same day along with the
grounds of detention whereby and whereunder the order of
detention was passed for a period of 12 months. Subsequently, the
State Government in exercise of power conferred under section
12(3) of the Act, vide its order dated 25.5.2009 (Annexure D to the
counter affidavit) approved the order of detention within 12 days,
copy of which seems to have been served upon the petitioner.
Thereafter the petitioner filed his representation before the
Secretary, Department of Home, Government of Jharkhand,
Ranchi, respondent no.2 with a prayer to revoke the order of
detention which was rejected by the State Government, vide its
order dated 29.6.2009. Thereupon, this application has been filed
2
whereby the order of detention has been challenged to be bad on
several counts.
Learned counsel appearing for the petitioner submitted that
the detention order was passed while the petitioner was in custody
and as such, the order of detention should have been passed in
compelling necessity, satisfaction/reason of which should have
been recorded by the respondent but the order of detention as
contained in Annexure 1 would go to show that the detaining
authority has not recorded any reason whatsoever.
In this regard it was submitted that the detaining authority
while passing the order of detention in a case where detenu is
already in jail is required to record his satisfaction on the basis of
the materials placed before him that the detenu is likely to indulge
in acts prejudicial to maintenance of public order, if he is enlarged
on bail and that he is satisfied from various reports and facts that
the detenu is likely to be released on bail but if this satisfaction is
not recorded in the order of detention, it would be deemed to have
been passed mechanically and as such, it is unsustainable in law.
Learned counsel in support of his submission has referred to
a decision rendered in a case of Sayed Abul Ala vs. Union of
India and others [2007 (12) Scale 345] .
The other ground on which the impugned order
has been sought to be quashed, is that there was no valid
conferment of the power on the District Magistrate, Singhbhum
East, respondent no.4 to make the detention order as the
notification dated 23.3.2009 (Annexure D to the counter affidavit)
under which the State Government, in exercise of power under
section 12(2) of the Act, conferred power upon all the District
Magistrates of the District of Jharkhand to pass order in terms of
Section 12(1) of the Act within his territorial jurisdiction, is
3
conspicuously silent as to whether power has been conferred upon
all the District Magistrates to pass detention order in terms of
Section 12(1) of the Act either on the circumstances prevailing on
the date of the order preventing the detenu from acting any
manner prejudicial to the maintenance of the public order or in the
circumstances likely to prevail during three months for which power
has been conferred. Since the notification (Annexure D) is silent, as
to under what circumstances either in the circumstances prevailing
on the date of the order or in the circumstances likely to prevail
during three months, the power has been conferred by the State
Government upon all the District Magistrates of the State, the said
notification can be said to have been issued mechanically without
application of mind and in this respect learned counsel has referred
to a decision in the case of Abhay Shridhar Ambulkar vs.
S.B.Bhave, Commissioner of Police and others (AIR 1991
SC 397) and also in a case of Ram Singh and others vs. State
of Rajasthan and another (1994 Cr.L.J. 512).
The other ground on which the impugned order has been
sought to be quashed is that the representation made by the
petitioner which under the scheme of the Act was required to be
considered at the earliest but in the instant case, it has been
disposed of after 27 days of its filing, still the State Government
has not come forward with any explanation much less any cogent
explanation for the delay caused in disposal of the representation
whereas in some cases even delay of 16 days in disposing of the
representation has been held to be fatal.
In this regard a case of Sunil Khatik @ Sunil Prasad @
Sunil Bihari vs. State of Bihar and others [(1999) 2 BLJR
954] was referred to.
4
As against this, learned counsel appearing for the State
submitted that the District Magistrate, East Singhbhum, at
Jamshedpur, while passing the order of detention has taken into
account criminal acts of the petitioner including the illegal act of
the petitioner of placing a ‘Kalash’ on a restricted land leading to
communal tension, forcibly stopping of electricity of consumers of a
particular area and forcibly trying to capture land used for public
purposes whereby he had created terror in the locality which was
prejudicial to the public order and hence, the order of detention
was passed under section 12(2) of the Act which was approved by
the State Government in exercise of the power under section 12(3)
of the Act within 12 days can never be said to be illegal.
The State Government on being satisfied that a person,
being an anti social element cannot be prevented from indulging in
criminal activities otherwise than the order of detention may confer
power upon the District Magistrate to pass order of detention in
terms of Section 12(1) of the Act. Therefore, we can say that the
subjective satisfaction of the detaining authority is of prime
importance in case of preventive detention of a person. The courts
exercising power of judicial review are not expected to consider the
challenge to an order of detention as if sitting as appellate court
weighing and reappreciating into the question and basis of
subjective satisfaction. But at the same time the court must not
loose sight of the fact that since the order of detention in prison
involves curtailment of fundamental right of liberty of a citizen,
freedom of movement and pursuit of normal life, the authorities
passing, approving and confirming the order of detention cannot
claim absolute immunity in regard to decision arrived at and hence,
it is open to the court to see whether there has been due and
proper application of mind and all the vital and relevant materials
5
have been notice and considered. However, at the same time no
activities of anti-social element should be allowed to pose threat
and danger to maintenance of public order and tranquility.
Keeping in view the said background, the points raised on
behalf of the petitioner over the propriety and the legality of the
notification dated 23.3.2009 conferring power under Section 12(2)
of the Act upon the District Magistrate to pass order of detention in
the circumstances stipulated under section 12(1) needs to be
considered.
It be noticed that the State Government in the following
terms has conferred the power upon the District Magistrate to pass
order under section 12(1) of the Act.
Jharkhand Sarkar
Griha Vibhag
Adhisuchana
Ranchi,dt. 23 March, 2009.
Sankhaya-12/Vividh (29)-13/2005- 1151/ Jharkhand apradh
Niyantran Adhiniyam- 2002 ke Adhyay-2 ki dhara 12(2) ke antargat
pradatt shaktiyon ka prayog karte huye Jharkhand Rajyapal sabhi
zila ke Kshetradhikar ke antargat Griha Vibhag, Jharkhand,Ranchi
dwara etad vishayak nirgat adhisuchana sankhaya -171, dt.
15.01.09 ke kram me agale tin mah ke liye arthat 01.04.2009 se
30.06.2009 tak prayog karne ki shakti pradan ki jati hai.
Jharkhand Rajyapal ke aadesh se.
Sd/-
(Gaurishankar Prasad)
Sarkar ke sanyukta Sachiv.
Gyapank-12/vividh (29)-13/2005-1151/ Ranchi, dt. 23 March, 2009.
Pratilipi:- Adhikshak, Rajkiya Mudralaya, Doranda, Ranchi ko
Jharkhand Gazette ke agale ank me prakashnarth preshit.
Sd/-
Sarkar ke sanyukta Sachiv
6
It was contended by learned counsel for the detenu that
there is no material to show the satisfaction of the State
Government when the power was conferred to the District
Magistrate, East Singhbhum that the conferment of the power
under section 12(2) of the Act was necessary having regard to the
circumstances prevailing or likely to prevail.
It was further contended that even in a case where the
State Government is satisfied that the conferment of the power is
necessary, there has to be specific order to the effect as to whether
as a result of circumstances prevailing or as a result of
circumstances likely to prevail in future activities of anti-social
elements can not be prevented otherwise than by the immediate
arrest of such person. But here in the case as it appears from the
notification (Annexure D) neither the satisfaction of the State
Government has been recorded nor power has been conferred
separately one with respect to circumstances prevailing and other
in the circumstance likely to prevail in future and as such,
notification conferring power on the District Magistrate (respondent
no.4) is quite invalid.
Learned counsel in putting the aforesaid submission
challenging propriety of the aforesaid notification has drawn
strength from a case of Abhay Shridhar Ambulkar vs.
S.B.Bhave, Commissioner of Police and others (supra) where
the same question was before the Hon’ble Supreme Court as to
whether the order conferring power on the Commissioner of Police
to pass order of detention under the National Security Act, both in
the circumstances prevailing as well as in the circumstances likely
to prevail would be valid. The answer was in negative as it was
held that the conferment of the power has to be specific either with
regard to the circumstances prevailing or likely to prevail and not
7
for both. In that case text of the order which was under challenge
was as follows:
ORDER
Dated 6th January, 1990
59, NATIONAL SECURITY ACT, 1980“No. NSA – 2390/1/SPL-3(B) – Whereas the
Government of Maharashtra is satisfied that
having regard the circumstances prevailing or
likely to prevail in the Greater Bombay Police
Commissionerate, it is necessary that during
the period commencing on 30th January, 1990
an ending on the 20th April, 1990, the
Commissioner of Police and the said
Commissioner should also exercise the powers
conferred by sub-section (2) of Section 3 of the
National Security Act, 1980 (65 of 1980)
(hereinafter referred to as ‘the said Act’).
Now therefore, in exercise of the powers
conferred by sub-section (3) of Section 3 of
the said Act, the Government of Maharashtra
hereby directs that for the period commencing
on the 30th January, 1990 and ending on 20th
April, 1990 the Commissioner of Police Greater
Bombay may also if satisfied as provided in
sub-section (2) of Section 3 of the said Act
exercise the powers conferred on the State
Government by sub-section (2) of Section 3 of
the said Act.
By order and in the name of Governor of
Maharashtra.”
In spite of satisfaction as required under section 3(2) of the
National Security Act being there, even then the Hon’ble Supreme
Court held that order is invalid as by the aforesaid conferment of
the power, the Commissioner had no jurisdiction to pass order of
detention as paragraph 1 of the order contains only reproduction of
the terms of sub-section (3) of Section 3 but sub-section (3) refers
to two independent circumstances, namely, (i) the prevailing
circumstances, (ii) the circumstances that are likely to prevail. The
Hon’ble Supreme Court goes further to say that the former
evidently means circumstances in praesenti that is prevalent on the
date of the order and the later means the anticipated
circumstances in future. The Court further goes to say that if the
Government wants that the District Magistrate or the Commissioner
8
of Police should also exercise the powers for the current period, it
has to satisfy itself with the prevailing circumstances and if the
Government wants that the District Magistrate or the Commissioner
of Police should also exercise the powers during the future period,
it must be satisfied with the circumstances that are likely to prevail
during that period and hence, subjective satisfaction of the
detaining authority cannot be lightly recorded by reproducing both
the alternative clauses. While coming to such conclusion the Court
has held so.
” The use of the word ‘or’ signifies either of the
two situations for different periods. That,
however, is not to say that the power cannot
be exercised for a future period by taking into
consideration circumstances prevailing on the
date of the order as well as circumstances
likely to prevail in future. The latter may stem
from the former. For example, there may be
disturbances on the date of the order and the
same situation may be visualized at a future
date also in which case the power maybe
conferred on the subordinate officers keeping
both the factors in mind, but in the case the
two circumstances would have to be joined by
the conjunctive work ‘and’ not the disjunctive
word ‘or’ in the impugned Government order
only indicates non-application of mind and
obscurity in thought.”
So far as the present case is concerned, the notification
under which power has been conferred to the District Magistrate by
the State Government in exercise of power under section 12(2) of
the Act, neither speaks about the satisfaction as required under
section 12(1) of the Act nor it can be said to have been empowered
the District Magistrate separately either to pass detention order in
the circumstances prevailing or in the circumstances that are likely
to prevail. Thus, in view of the aforesaid decision, notification dated
23.3.2009 has got to be declared as invalid. Consequently, the
District Magistrate, Jamshedpur will have no jurisdiction to exercise
the power of detaining authority under section 12(1) of the Act.
9
Coming to the other submission, it be stated that the
impugned order has also been sought to be quashed as the
detaining authority without recording his satisfaction that the
detenu is likely to indulge in his criminal activities soon after his
release, has passed the order. In the context of the submission, it
be stated that it is always the past conduct, activities or the
antecedents of a person which the detaining authority takes into
account in making a detention order but the same by itself may not
be sufficient to pass an order of detention when the detenu is in
custody, rather the detaining authority as per the decision of the
Hon’ble Supreme Court in a case of Sayed Abul Ala vs. Union of
India and others [2007 (12) SCALE 345] needs to record his
satisfaction on the following points.
(1) if the authority passing the order is aware
of the fact that he is actually in custody;
(2) if he had a reason to believe on the basis
of reliable material placed before him;
(a) that there is a real possibility of his
being released on bail, and (b) that
on being released, he would in all
probability indulge in prejudicial
activities; and
(3) it is felt essential to detain him to prevent
him from so doing.
In the present case, the detention order does indicate that
the detaining authority was only aware of the fact that detenu is in
custody. Detaining authority seemed to be quite oblivious of rest of
the conditions a nowhere neither in the detention order nor in the
counter affidavit, it has been recorded that the materials were
there before the detaining authority to come to the conclusion that
there is possibility of detenu being released on bail and that on
being released, he would in all probability indulge in prejudicial
activities. Thus, on this ground also the detention order cannot be
sustained.
10
Now coming to the third point relating to delay in disposal of
the representation, it be recorded that the order of preventive
detention curtails the personal liberty guaranteed under the
Constitution. The right of representation has been given with a
view that the said representation is to be considered at the earliest
so that in case it is found that the detention order is not in
accordance with law, the detenu should be released forthwith.
Inordinate delay or unexplained delay has been held to be violative
of constitutional mandate under Article 22(5) and on this ground
alone the order of detention will vitiate. The Apex Court in catena
of cases has held that the representation has to be disposed of at
the earliest and if there has been the delay in disposal of the
representation, the reasons for the delay must be indicated to the
court or else the unexplained delay or unsatisfactory explanation in
the disposal of the representation would vitally affect the order of
detention and in that situation, the continued detention becomes
bad.
Reference in this connection may be made to a decision of
the Hon’ble Supreme Court in a case of Kundanbhai Dulabhai
Shaikh vs. District Magistrate, Ahmedabad and others (AIR
1996 SC 2998) .
In the instant case, there appears to be absolutely no
explanation of delay in disposal of the representation. At paragraph
5 of the counter affidavit filed on behalf of the respondent no.2,
Secretary, Home, Government of Jharkhand, only statement is
there that the representation filed by the detenu before the
respondent no.1 was considered and rejected and was
communicated to the detenu, vide letter no.2653 dated 29.6.2009
whereas the State Government had approved the order of
detention on 25.5.2009 and as such, no explanation whatsoever of
11
delay of 27days has been explained and as such, action of the
respondent can be said to be violative of the constitutional
mandate under Article 22(5) of the Constitution of India and
therefore, on this ground also the order of detention can not be
sustained.
Thus, the order of detention as contained in Annexure 1 and
also the order whereby it has been approved are hereby quashed.
Consequently, the petitioner is ordered to be released forthwith
unless he is required to be detained in any other case.
In the result, this application is allowed.
( R.R. Prasad,J.)
ND/