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Section 17 in the Drugs (Control) Act, 1950
Section 12 in the Drugs (Control) Act, 1950
the Drugs (Control) Act, 1950
Article 22 in The Constitution Of India 1949
Section 3 in the Drugs (Control) Act, 1950

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Jharkhand High Court
Rajendra Singh vs State Of Jharkhand & Ors on 19 September, 2011

1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P. (Cr.) (H.B.)No. 122 of 2011

Rajendra Singh ... ...... ... ... Petitioner Versus

1.The State of Jharkhand

2.The Secretary, Department of Home, State of Jharkhand

3.The District Magistrate, Dhanbad.... ..... Respondents -------

CORAM: HON'BLE THE CHIEF JUSTICE

HON'BLE MR JUSTICE P.P. BHATT

- -----

For the Petitioner : Mr. R.S. Mazumdar, Sr. Adv. For the State : S.C. II

Reportable ------ Dated 19th September, 2011 The petitioner was served with a notice dated 27th November, 2010, under Section 3 of the Jharkhand Control of Crimes Act, 2002 (wrongly mentioned in the notice as Bihar Control of Crimes Act, 1981), a copy of which has been placed on record as Annexure-1. The petitioner's contention is that he submitted representation against the said notice; however, proceeding under Section 3 of the Act of 1981 was dropped vide order dated 25th March, 2011 after observing that since an order under Section 12 (2) of the Act of 2002 for detention of the petitioner has been passed, the proceeding under Section 3 of the Act of 2002 has become infructuous. On 25th March, 2011 a separate order of detention was passed under Section 12 (2) of the Act of 2002, a copy of which has been placed on record as Annexure 4 and grounds for passing such a order are given separately in memo no. 454/c dated 25th March, 2011. The petitioner's further contention is that immediately after service of detention order, he submitted a representation against the order of detention to the State Government through the Jail Authorities as it is permissible 2

and a right given to every detenue under Section 17 (1) of the Act of 2002. The State Authority was under obligation to decide the representation of the writ petitioner forthwith and if, not forthwith, then without any delay. This right of representation of the petitioner is not only by virtue of Section 17 (1) of the Act of 2002, but as has been conferred by Clause 5 of the Article 22 of the Constitution of India.

2. By not deciding the petitioner's representation, the State Government has violated the Constitutional provision and played with the liberty of the writ petitioner as if, the petitioner's representation would have been considered in time, the State Government may have dropped the proceedings initiated under Section 12 (2) of the Act of 2002. Not only this, the petitioner when challenged the order of detention, the State Government passed the confirmation order on 31st March, 2011 and that too, without rejecting the petitioner's said representation. The petitioner's representation even thereafter was not considered and decided by the State Government and the petitioner, therefore, preferred the writ petition before this Court on 20.05.2011 challenging the petitioner's detention. In the writ petition, counter was filed by the State on 26.6.2011 and then, before filing the counter affidavit, the petitioner's representation was not considered and decided by the State Government, though it would not have made the illegal detention of the petitioner a legal detention. The State Government, after two months of filing of the counter in futile effort to cover up the illegality, on 6th August, 2011, rejected the petitioner's representation vide, order placed on record 3

as Annexure 'X', submitted along with the supplementary affidavit dated 17th August, 2011. The representation of the petitioner has been rejected after taking into consideration the opinion of the Advisory Board also but without considering any of the submissions of the writ petitioner.

3. Learned counsel for the petitioner vehemently submitted that consideration of the representation of a detenue is mandatory and non-deciding of the representation of the detenue renders the detention proceeding invalid. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Mohinuddin alias Moin Master Vs. District Magistrate, Beed and others reported in (1987) 4 SCC 58, wherein it has been held that failure on the part of the State Government to consider the representation made by the detenue renders the detention of the detenue invalid and continuation of detention, in such situation, is constitutionally impermissible.

4. Learned counsel for the petitioner also submitted that detaining authority even did not apply mind to the facts of the case. The detaining authority considered five criminal cases registered against the petitioner, out of which in two of the cases, the petitioner was already acquitted and in two of the cases anticipatory bail was already granted and in one of the cases, the petitioner's appeal for grant of bail was pending and, therefore, the grounds mentioned in the order of the detaining authority dated 25th March, 2011, cannot justify the detention of the writ petitioner.

5. Learned counsel for the State supporting the orders impugned, submitted that there is no period of limitation 4

prescribed in Section 17 (1) of Act of 2002 for deciding the representation of the detenue and the petitioner's case for detention has been conformed by the State Government and also by the Advisory Board and, therefore, now the detention order cannot be set aside when the petitioner's representation has been rejected by the State Government vide order dated 6th August, 2011.

6. We considered the submissions of learned counsel for the parties and perused the facts of the case.

7. Undisputedly, the right to represent against the detention is given by the specific provision made in the Constitution under Clause 5 of the Article 22 of the Constitution of India and it is in relation to the highest right of any person i.e., for liberty. The Section 17 (1) of the Act of 2002 may not have provided for considering and deciding the representation by the State Government in any particular period, but from reading of the entire Act of 2002, it is clear that for every action, very short period has been given to the authorities in the matter of taking decision like, confirmation of the detention order by the State Government and for placing of the matter before the Advisory Board and obtaining decision of the Advisory Board. In that fact situation and in consonance with the scheme of the Act of 2002, it cannot be held that merely because there is no period of limitation in Section 17 (1) of the Act of 2002, the State Government can pass order on the representation of the detenue at any time and beyond the time by which the matter can be referred to the Advisory Board and the Advisory Board may pass order. Therefore, the order on the representation of the detenue can 5

be passed without any delay by the State Government and if it is delayed, as delayed in this case, by almost more than four months, then such orders are liable to be set aside. Hence, the detention order in this case is set aside.

8. At this juncture, we may observe here that in this Court most of the writ petitions are filed with the ground that in the grounds given by the detaining authority, only the fact of the criminal cases are incorporated by the detaining authority without mentioning any fact that in the cases considered by the detaining authority, whether the accused has been acquitted or found guilty or in those cases any bail has been granted or rejected by the Courts etc. Because of this reason, only it is normally argued that the detaining authority has not applied its mind to the facts of the case and has taken into account only the facts which are against the person against whom order of detention has been passed. The scope for consideration and powers as well as requirement under Section 12 (2) of the Act is entirely different than the proceedings and requirements in any criminal cases. Therefore, the detaining authority, after examining the facts of the case and even the fact of acquittal of the accused in a case and grant of bail, independently after taking into account all facts, may decide whether detention of the person concerned is necessary to prevent him from acting in any manner prejudicial to the maintenance of public order and there is reason to fear that the activities of anti-social element cannot be prevented otherwise than by the immediate arrest of such person. Object of the Act of 2002 or power given by Article 22 of the Constitution of India, the State is not only to 6

take action against the convicts and prevented from taking action in case the accused has been acquitted or released on bail in one or even all criminal cases. The detaining authority, the Advisory Board and the State should satisfy itself from the facts that the action under the Act against the person is necessary. It is also understood clearly that the matter under the Crime Control Acts are in relation to individual's liberty, which is the highest right of any person as protected by the Constitution of India as well as it is a matter of life of not only any individual but it may be matter of life of death of large number of persons, therefore, every case should be taken in passing order under such Acts.

9. Therefore, the copy of this order will be sent to the Home Secretary, Jharkhand, who may circulate this order to all authorities who have power under Section 12 (2) of the Act of 2002 so that no person be detained wrongly under the provisions of the Act of 2002 and no unwanted person be released because of technical mistake committed by the detaining authority.

10. The order of detention of the petitioner dated 25th March, 2011 and confirmation order of the State Government dated 31st March, 2011 are set aside. The petitioner is directed to be released forthwith, if not needed in other case. (Prakash Tatia, C J)

(P.P. Bhatt, J)

Dey/-Alankar/-