Shyam Kishore Sharma, J.@mdashHeard the parties. Petitioner has challenged the order dated 21-8-2012 (Annexure-1) purported to be u/s 12(2) of the Bihar Control of Crimes Act (hereinafter referred to as ''the Act'') followed with order dated 28-8-2012 (Annexure-2) passed by State Government in terms of Section 12(3) of the Act as well as order dated 26-9-2012 (Annexure-5) passed by the State Government confirming the order dated 21-8-2012 in terms of Section 21(1) read with Section 22 of the Act.
2. As suggested by the Superintendent of Police Gaya and further acceded to therewith the District Magistrate, Gaya vide order dated 21-8-2012 directed the petitioner (who remained in jail custody) to be put under preventive detention in the background of his criminal antecedents of being an accused of Bodh Gaya P.S. Case No. 23/2007, Bodh Gaya P.S. Case No. 84/2009, Barachatti P.S. Case No. 89/2010, had based his subjective satisfaction on account of being an accused in Bodh Gaya P.S. Case No. 39/2012, Bodh Gaya P.S. Case No. 248/2011, Magadh University P.S. Case No. 74/2009 and Magadh Medical P.S. Case No. 36/2010 after forming an opinion that his presence outside jail will be hazardous to the public order.
3. While assailing the successive orders passed by the respective authorities, it has been submitted on behalf of the petitioner that there is non application of mind while forming an opinion against the petitioner that his presence will lead to endangering public order. It has further been submitted that whenever an action of individual is to be properly dealt with in terms of substantial law, then in that event, application of preventive detention happens to be unwarranted. It has further been submitted that none of the case which has been found to be basis for passing the order impugned by the Detaining Authority relates with endangering public order. Therefore, the order of preventive detention is not at all justified.
4. It has further been submitted that there is inordinate delay on the part of the State Government in consideration of representation filed on behalf of the petitioner in utter violation of mandate of Article 22(5) of the Constitution. So submitted that in any view of the matter, the successive orders are not at all sustainable in the eyes of law.
5. On the other hand, the learned counsel appearing on behalf of Advocate General justifying the successive order passed by the competent authority submitted that satisfaction of the Detaining Authority is beyond the scope of judicial scrutiny. It has also been submitted that no hard and fast rule has been prescribed to be followed during course of forming subjective satisfaction hence there happens to be no infirmity or illegality in the initial detention order dated 21-8-2012 passed by the District Magistrate. Then, it has been submitted that the material placed before the Detaining Authority could be found to suffice for subjective satisfaction of the Detaining Authority in case and the same, in the opinion of the Detaining Authority lent apprehension of public order. So far order impugned is concerned, apart from having criminal antecedents subsequent involvement of petitioner in case wherein pilgrims were ruthlessly looted away keeping the prestige of the nation at stake as well as by such action public order has been endangered justify the preventive detention of petitioner who was on the date of passing of order of preventive detention under judicial custody.
6. It is needless to say that preventive detention could not be inflicted against detenu while undergoing judicial custody but with certain precautions. The aforesaid event has already been taken into consideration by the Hon''ble Apex Court in the case of
14......Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. ...The point was gone into detail in
7. After going through the order of detention dated 21-8-2012 (Annexure-1), it is evident that later on Detaining Authority had taken cognizance of status of the petitioner to be under judicial custody as well as also narrated that petitioner was taking sincere effort to obtain bail. However, the order impugned on its minute observation speaks a lot with regard to non compliance of Clause (2) of the ingredients led down by the Hon''ble Apex Court in the case of
Petitioner is directed to be released forthwith if not wanted in any other case.
