Amit Ranjan @ Babu Jha @ Babukhan Vs State of Bihar and Others

@JUDGMENTTAG-ORDER

1. The petitioner, detenu, has questioned the order of detention, recorded by respondent No. 4, District Magistrate, Saharsa, on 15.1.2005 in Misc. Case No. 4 of 2005 in purported exercise of powers u/s 12(2) of the Bihar Control of Crimes Act, 1981 (In short "the Detention Act"), by invocation of the provisions of Article 226 of the Constitution of India, on divergent grounds. Upon a report of the Superintendent of Police, Saharsa, dated 30.12.2004, declaring the detenu as "anti-social element" and, thus, preventing the petitioner from such activities, it was found necessary to pass an order of detention against the petitioner and, therefore, the respondent No. 4, after undergoing certain formalities, passed the detention order on 15.1.2005, since when the detenu is in the detention. A period of one year, for which the detention order has been passed, will expire on 14.1.2006. It is in these contexts, upon request, we deemed it necessary to take up this matter for consideration and adjudication on merits.

2. Learned counsel for the detenu and the learned counsel for the State have offered their submissions who, in course of submissions, have taken us through relevant materials on record. We have also examined the entire record of the petition.

3. The first contention advanced on behalf of the detenu has been that the detention order shall stand vitiated, as there was delay of 42 days in consideration and disposal of the representation against the detention order filed by the detenu. Following dates and materials are relevant, so as to appreciate the merit of the impugned order which has been countenanced by the learned counsel for the State:-

30.12.2004.-The Superintendent of Police, Saharsa submitted a report to the District Magistrate, to proceed u/s 12(2) of the Detention Act against the petitioner.

15.1.2005.-The detenu was detained.

27.1.2005.-The detenu filed a representation from jail which was received on 1.2.2005 by the authorities.

10.2.2005.-Comments of the District Magistrate was called for.

25.2.2005.-The District Magistrate submitted his comments which was received in the office of the Deputy Secretary to the Government on 26.2.2005.

16.3.2005 to 22.3.2005.-The representation was dealt to with for the first time on 16.3.2005 by the Section Officer, on 17.3.2005 by the Deputy Secretary and Joint Secretary, on 18.3.2005 by the Home Department and on 20.3.2005 by the Chief Secretary, and ultimately the representation was rejected on 22.3.2005 by the Governor.

4. It is apparent from the aforesaid chronological dates, coupled with the averments made in the petition and the counter affidavit filed by the State, that there has been delay of 42 days in disposal of the representation of the petitioner-detenu. It is the cardinal principle of detention law that the representation of the detenu has to be considered, expeditiously, without any loss of avoidable time, as the detention order has wider ramification and it affects the civil liberty of the citizen of the country. There has been host of judicial pronouncements indicating and manifesting that unexplained delay in disposal of the representation by the State will be fatal to the validity of the detention order.

5. It can be very well visualized from the aforesaid factual aspect and the chronology of dates that there has been initial delay of 9 days between 1.2.2005 to 10.2.2005 and, thereafter, 15 days'' delay between 10.2.2005 to 25.2.2005, during which period the District Magistrate has given only the explanation and his remarks without placing on record as to why delay of 15 days has occurred and what was the reason that 15 days'' time was necessitated for offering the views and explanation of the District Magistrate and, lastly, the delay of 18 days between 26.2.2005 to 16.3.2005 during the period when the comments of the District Magistrate came to be received by the Deputy Secretary and the date when the representation of the detenu was first dealt with by the Section Officer of the concerned Department.

6. As such, no amount of authority or any case law would be necessary to be referred, for quashing the order of detention on the ground of delay. However, we may refer to the decision in the case of Rajammal Vs. State of Tamil Nadu and Another, wherein even unexplained delay of five days has been held to be fatal for the validity of the detention order. This decision is fully attracted to the facts of the present case. Therefore, the detention order, under challenge, in this petition shall stand vitiated on account of unexplained delay highlighted hereinabove and since this point goes to the root of the matter, other grounds of detention, challenged against the detention order, need not be gone into. In the result, while allowing this writ petition, the impugned order of detention, as contained in Annexures 2, 3 and 5 is quashed and set aside with a direction to release the petitioner-detenu forthwith, if not required in any other case. The rule is made absolute. No costs.