Vikramaditya Prasad, J.
1. This writ application has been filed under Articles 226 & 227 of the Constitution for quashing the order of detention passed against the petitioner by the District Magistrate, West Singhbhum, Chaibasa, in exercise of the powers under Section 12(2) of the Bihar Control of Crimes Act, 1981, Annexure-1 and the order of approval of the aforesaid detention order by the Government of Jharkhand, vide Annexure-3, and the order of the State Government passed under Section 20(1) read with Section 22 of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Act) by which the detention of the petitioner was ordered to be till 6.6.2002, vide Annexure-5.
2. The petitioner used to work a a petty Contractor and Sub- Contractor and was residing at Ranchi. He was an accused in the murder case of one Bijay Singh Soi, a Former M.P. and he was convicted by the Sessions Judge and his appeal against conviction is pending in the High Court and the petitioner had remained in custody since 29.9.1997 at Chaibasa. On 7.6.2001, while in detention, he was served with a copy of the detention order dated 6.6.2001 (Annexure-1) and he came to know that the detaining authority was satisfied with a view to preventing him form acting in any manner prejudicial to the maintenance of public order and there were reasons to fear that his activities could not be prevented otherwise then by immediate arrest; consequently the respondent No. 2, the detaining authority, by the said order, directed his detention for a period of 3 months in Chaibasa jail. Here the case of the petitioner is that the petitioner was in Jail at the time of passing of the detention order. But as the detaining authority did not know this fact, it directed his immediate arrest being necessary which indicated that the detaining authority has not applied its mind, while passing the impugned order. The order was served upon him along with the F.I.R. of three cases but papers relating to his criminal history were not served to the petitioner and the objection was raised by the petitioner immediately before the Jail Authorities. The petitioner has a further case that because of the non-supply of the F.I.R. and the connected documents which had been considered by the detaining authority, while passing the detention order, vitiates the detention because he was prejudiced in his defence. The petitioner, thereafter, filed representation, annexure-4, and the State Government, by annexure-5, passed the order of his detention till 6.6.2002 by order dated 23.7.2001.
3. The contention of the petitioner is that the State Government, while passing the order. Annexure-5, has enhanced his period of detention to 12 months which is beyond the jurisdiction of the State Government and consequently, it vitiates the detention and the detention of the petitioner becomes illegal. According to the petitioner the grounds that were incorporated for his detention could be divided into two categories- the category in which the crimes were inter-related and the category in which the crimes were independent of the inter related crimes. Thus, crimes committed by him at best can be related to the law and order and not to the public order. The further case of the petitioner is that at the time of passing of the impugned order, several cases under the Arms Act have already been considered by the detaining authority which is not permissible in view of Section 2(d) of the Act. His further case is that since the detaining authority has considered all the cases, while passing the order of detention, forming his subjective satisfaction, the non-applicability of even one of them vitiates the order of detention. It is further stated that the power to preventive detention should be sparingly exercised and the impugned order is violative of the rights guaranteed under Article 21 and 22 of the Constitution of India.
4. The respondent No. 2 District Magistrate of West Singbbhum appeared and filed counter affidavit. In the- counter-affidavit, it was stated that the order of detention was not passed with the intention to deprive the detenue of his fundamental rights. The 3rd Additional Sessions Judge found the detenue guilty of the murder of Bijay Singh Soi and convicted him under Section 302. IPC. It was further stated that the State Government was empowered to confirm the detention order and continue the detention of the persons concerned for such period as it thinks fit. Thus the order of continuation for detention of the detenue for one year is legal and within the provisions of law. It was further averred that the detention order was passed after considering the entire anti-social activities of the petitioner and also the commission of offences punishable under Chapter XVI and XII, IPC. The activities of the petitioner were prejudicial to the maintenance of the public order and peace and this consideration gets support from the fact that the petitioner was found guilty and convicted under Section 302/120-B and 379, IPC. and 27 of the Arms Act. The order was passed not to punish him, but to prevent the activities of the petitioner prejudicial to the public order.
5. In paragraph 8 of the writ application, the petitioner has stated that at the time of passing of the detention order the petitioner was already in custody, but in ignorance of this fact, this order was passed stating that he should be arrested immediately and this discloses the non-application of mind. In paragraph 10 of the counter-affidavit, the aforesaid averment of the petitioner was simply denied but it was not specifically asserted that it was not a fact.
6. In the face of the aforesaid facts, the questions for determination in this writ application are that if the detaining authority passes an order of immediate arrest of the detenue though the detenue was already in jail custody in another case amounts to non-application of mind by the detaining authority simply because it failed to take note of the fact that the petitioner was already in jail and whether the state Government has power to enhance the period of detention beyond the period that was ordered by the District Magistrate and whether the detention of the petitioner was in the interest of public order.
7. Re. First Ground : If the detaining authority passes an order of immediate arrest of the detenue, though the detenue was already in jail custody in another case amounts to non- application of mind by the detaining authority simply because it failed to take note of the fact that the petitioner was already in jail.
Along with the detention order, the F.I.R. and other connected papers of the previous offences were not supplied to the petitioner and therefore the petitioner was prejudiced in filing his representation. In paragraph 9 and 10 of the writ application, the petitioner has stated all these and the respondents in paragraph 11 of the counter affidavit have denied the aforesaid contention of the petitioner and it has been stated that these submissions of the writ petitioner are incorrect and the provisions of Section 17 of the Act was complied with. It was argued by the learned counsel for the petitioner that in the absence of such papers as the petitioner was prevented from making effective representation, the detention was vitiated. It was contended by the learned counsel for the State that the detenue was already aware of the contents of the documents, therefore non-supply of these documents did not prejudice the petitioner in his defence. As stated above, the detaining authority has not categorically submitted that these documents were supplied. In a similar situation the Apex Court held that 'detenue was entitled to be supplied with copies of material documents instead of having to rely upon his memory in regard to the contents of the documents the failure of the detaining authority to supply copies of such documents vitiates the detention'. In view of the aforesaid view of the Supreme Court, this question is answered in favour of the petitioner and against the State. Decision reported in AIR 1981 SC 1861 is relied upon.
8. Whether it amounts to non-application of mind even though the petitioner was in jail but the order of immediate arrest was directed by the detention order, Annexure-1. On perusal of the Annexure-1, it transpires that the detaining authority directed for his immediate arrest, the copy of the order was forwarded to the Superintendent of Police and the order was passed on 6.6.2001 and it was served on the petitioner on 7.6.2001 in the jail itself. Thus, it is clear that while passing the impugned order the detaining authority was not aware of his whereabouts. If a man who does not know about the whereabouts of the person against whom he passes order, in that circumstance it will he difficult for him entirely to asses what he is going to do in future. The learned counsel for the State argued that this can be attributed to inadvertence, but does not vitiate the detention. Learned counsel for the petitioner relied upon a decision reported in (2001) 1 SCC 341. In the aforesaid case the decision of the case of Kamarunisa v. Union of India and Anr., (1991) 1 SCC 128 was relied upon. The Supreme Court observed, 'Decision of this Court to which our attention was drawn by the learned counsel for the petitioner lay down in no uncertain terms that the detention order can validly be passed against detenus who are in jail provided the officer passing the order is alive of the fact that all the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activities if set at liberty.'
8X. 'The officer passing the order is alive of the fact that all the detenus being in custody' is of great importance. In this case, the detaining authority was not alive of' the fact that the detenue was in custody when he passed the order.
9. Learned counsel for the petitioner has further argued on this point, referring the decision rendered in 1990 PLJR 69, which is a Full Bench decision of this Court (erstwhile Patna High Court). In this decision, this fact was also upheld that if at the time of the passing of the detention order, the detaining authority is not aware of the fact that the detenue is already in jail custody, then there has been no application of mind, The decision rendered in, AIR 1987 SC 2332 was relied upon by the Full Bench aforesaid in this context.
10. As stated above, the copy of the detention order was sent of the Superintendent of Police. Had the detaining authority being aware of the fact that the detenue was in jail, then in that circumstance the copy would have been sent to the Jail Authorities for service on the detenue and not to the Superintendent of Police and this indicated that the words, 'immediate arrest' used in the detention order was not inadvertently used but it was an instance of unawareness about the whereabouts of the detenue-petitioner. Thus, there has been non-application of mind while passing the impugned order.
11. Re. Whether the State Government has power to enhance the period of detention beyond the period that was ordered by the District Magistrate.
Whether the State Government was empowered to pass an order enhancing the detention of the petitioner for a period of 12 months the definite answer can be found in Section 21 and 22 of the Act. Thus, the Section 21 being apposite is reproduced below:--
'21. Action upon the report of the Advisory Board.--(1) In any case where the Advisory Board has reported that there is, in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the Government shall revoke the detention order and cause the person concerned to be released forthwith.'
The Section 22 being also apposite is reproduced below:--
'22. Maximum period of detention.---The Maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 21 shall be twelve months from the date of detention:
Provided that nothing contained in this section affect the power of the Government to revoke or modify the detention order at any earlier time.'
12. In this case the representation was made by the petitioner and that was considered by the Advisory Board. On the basis of the recommendation of the Advisory Board, the State Government passed the order, which is Annexure-5. The joint reading of the aforesaid two Sections makes it clear that the State Government is empowered to extend even the continuation of the period of detention which may not be in excess of 12 months. This petitioner first was ordered to be detained with effect form 6.6.2001 and the State Government has directed his detention by Annexure-5 till 6.6.2002. So this period is squarely covers in the period on 12 months and not in excess of 12 months. This order is within the power of the Government and is valid within the meaning of the aforesaid two Sections.
13. This question is answered accordingly in favour of the State and against the petitioner.
14. Re. Whether the detention of the petitioner was in the interest of public order.
A new Section 12-A was inserted by way of amendment with effect from 14.3.1994 in the Act. Thus, Section 12-A is reproduced below:--
'12-A. Grounds of detention severable.--(1) Where a person has beendetained in pursuance of an order ofdetention whether made before or afterthe commencement of the Bihar Controlof Crimes Act, 1981, under Section 12which has been made on two or moregrounds such order of detention shall bedeemed to have been made separate oneach of such grounds and accordingly--
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are:
(i) vague,
(ii) non-existent,
(iii) non-relevant,
(iv) not connected or not proximately connected with such person or
(v) invalid for any other reason whatsoever, and it is not therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in Section 12 with reference to the remaining ground or grounds and made the order of detention.
(b) The Government or officer making the order of detention shall be deemed to have made the order of as provided in that section after being satisfied as provided in that section with reference to the remaining ground or grounds'.
15. Under the Act, the order shall not be invalid if it is vague, non-existent, non-relevant, not connected or not proximately connected with such person or invalid for any other reason. Now the things have to be viewed as per the amended provisions of law. If the grounds are vague because of non-supply of the relevant papers when also the detention cannot be set aside on this ground. There is no other question raised with regard to the non-existent or non-relevant circumstances appearing in the case raised by the petitioner. Annexure-2 which provided the grounds for satisfaction of the detaining authority in the case, depicts that the petitioner is an accused in Chakradharpur P.S. Case No. 35/1999 under Section 25(B)(a)/ 26/35 of the Arms Act. He was accused in Chakradharpur P.S. Case No. 34/1999 under Section 399/402, IPC. Then he is an accused of Bandhgoan P.S. Case No. 7/2000 under Section 326/307/34. IPC and 25-B (a)/24/ 27/35 of the Arms Act and in that case, when he was running away after committing murder of Bijay Singh Soi, the petitioner fired also injuring one Hawaldar, Parmeshwar Thakur and form his possession also, some arms were recovered. Then again, in Chakradharpur P.S. Case No. 31/2000 was registered against the petitioner with regard to the murder of Bijay Singh Soi and thereafter a terror was created in the market of Chakradharpur, Again, Sadar P.S. Entry No. 20 dated 1.3.2001 was drawn up. It is stated that the petitioner on terror, got the witnesses declared hostile. Similarly, Sadar P.S. Entry No. 36 dated 2.3.2001 says that he was extorting the people and also threatening the witnesses that if they deposed against him they will be killed. Similar is the entry in Sadar P.S. Entry No. 138 dated 5.3.2001 and Chakradharpur P.S. Entry No. 788 dated 20.1,2001 and furthermore, in Sadar P.S. Entry No. 46 dated 2.5.2001, when the petitioner was being taken to the Court, he had misbehaved with the Government Officials and also threatened that after coming out, they would create such a situation that the police would not be able to control it. Subsequently, in Sadar P.S. Entry No. 137 dated 5.5.2001, a threat was given to the Officer-in-charge that he along with his vehicle would be exploded or he would create false injuries and implicate him. Besides that, past history from the year 1997 is there. SO there is proximity in between the crime committed by the petitioner and the order of detention passed against him. The nature of the offence and the potentiality of the Actions that has been discussed above clearly go to prove that the release of this petitioner would not be in the interest of public order. Thus, the conclusion of the detaining authority that the order has been passed in the interest of public order is held good.
16. Now the question aries whether due to non-application of mind and on this single point that the detaining authority was unaware of his being detained will vitiate the detention order in the aforesaid circumstances and whether in view of the amended provisions of the Act that the ground of vagueness and unawareness will be excluded because the ground is severable and on any other ground he is potent danger for the public order. The Supreme Court also observed as follows in the case reported in AIR 1987 SC 2332:--
'If the subjective satisfaction is reached without the awareness of this or relevant fact, the detention order is likely to be vitiated but it will depend upon the facts and circumstances of each case'.
This observation was made in the context of the unawareness of the accused being in jail. But by using the words, 'it will depend upon the facts and circumstances of the case', non-application of mind does not cripple the entire proceedings if the other facts and circumstances are there, to reach to that conclusion of the detaining authority. Thus, in view of the amended provisions of the Act and in view of the fact that in the acts of the petitioner, there is a definite nexus between the act and public order and the public order appears to be in danger. So on the sole ground that the detaining authority was unaware of his (petitioner's) detention in the jail at the time of passing of the impugned order, in my opinion does not vitiate the detention order on the simple ground of non-application of mind.
17. In the result this writ application isdismissed.