Birendra Mandal Vs. the State of Jharkhand Through the Secretary, Department of Home and ors. - Court Judgment

Excerpt:
bihar control of crimes act, 1981 - section 12(2)--detention--legality of--petitioner detained--approval of such detention refused by state government because no document sought for was made available--again recommendation for detention of petitioner was made on same set of allegation--state government approved the order of detention--revocation or expiry of detention order shall not bar the making of a fresh detention order against same person--but no cogent evidence available to show that petitioner has been actually operating criminal activity from the jail custody as alleged--no any chit of paper has been produced to substantiate the allegation--hence, the order of detention declared by the government illegal for non-compliance of the mandatory provision resulting non-approval of the.....orderdeoki nandan prasad, j. 1. this application has been filed under article 226 of the constitution of india for quashing the entire proceedings of cca case no. 5 of 2002 including the orders dated 19.8.2000, 3.9.2000 and 20.8.2002 passed by the deputy commissioner, jamtara as well as approval was made by the government of jharkhand,department of home initiated under section 12(2) of the bihar control of crimes act (hereinafter referred to as 'the act').2. it is stated that the sub-divisional officer, jamtara requested the superintendent of police, jamtara to send a proposal to the deputy commissioner, jamtara to detain the petitioner under section 12 of the act and thereafter the superintendent of police, jamtara recommended accordingly for detention of the petitioner. pursuant to the.....

Judgment:
ORDER

Deoki Nandan Prasad, J.

1. This application has been filed under Article 226 of the Constitution of India for quashing the entire proceedings of CCA Case No. 5 of 2002 including the orders dated 19.8.2000, 3.9.2000 and 20.8.2002 passed by the Deputy Commissioner, Jamtara as well as approval was made by the Government of Jharkhand,Department of Home initiated under Section 12(2) of the Bihar Control of Crimes Act (hereinafter referred to as 'the Act').

2. It is stated that the Sub-Divisional Officer, Jamtara requested the Superintendent of Police, Jamtara to send a proposal to the Deputy Commissioner, Jamtara to detain the petitioner under Section 12 of the Act and thereafter the Superintendent of Police, Jamtara recommended accordingly for detention of the petitioner. Pursuant to the said recommendation, the Deputy Commissioner, Jamtara by order dated 1.8.2002 passed the order of detention of the petitioner under Section 12(2) of the Act and forwarded the said recommendation to the State Government, Department of Home for approval. Thereafter the Government of Jharkhand by Letter No. 6-02 (APA)/ 2002-4000 dated 12.8.2002 (Annexure 5) directed the Deputy Commissioner, Jamtara (respondent No. 3) to make available the documents relating to the detention of the petitioner and the State Government by Letter No. 602 (APA) 2002-4048 16 2002-4048 16 .8.2002 (Annexure 6) refused to approve the detention of the petitioner on the ground that no documents whatsoever as sought for was made available relating to the detention of the petitioner. It is further claimed that again on the same set of grounds/allegations, the Sub-Divisional Officer, Jamtara (respondent No. 5) requested the Superintendent of Police, Jamtara (respondent No. 4) to place the proposal for detention of the petitioner. Again the respondent No. 4 recommended for detention of the petitioner on the basis of which the Deputy Commissioner, Jamtara (respondent No. 3) passed the order of detention on 19.8.2002 on the same set of allegations without there being fresh facts/grounds after rejection of the earlier order of detention. Later on, the State Government by its order contained in Memo No. 6 (APA)-04(APA)/2002-4389 dated 3.9.2002 (Annexure 13) approved the order detention of the petitioner passed by respondent No. 3 on 19.8.2002 (Annexure 11) after expiry of the stipulated period as laid down under the provision of the Act. The petitioner had also filed his representation before the Secretary, Government of Jharkhand on 15.9.2002 (Annexure 14) through the Superintendent of Jail, Jamtara which has not yet been disposed of or no order whatsoever has been communicated to the petitioner thereon. The approval made by the State Government after 30.8.2002 even in respect of second detention on the same and similar grounds is illegal which has been done beyond the stipulated period of 12 days as required under the Act and, therefore, the order of detention of the petitioner is in complete violation of the mandatory provision of Section 12(2) of the Act and the order of detention cannot be sustained in any way as the second detention has been made with sole purpose to harass the petitioner on the same and similar grounds/allegations as well as no any chit of paper, such as, first information reports relating to the cases have ever been served upon the petitioner. Therefore, the order of detention is fit to be quashed.

3. Counter-affidavit has been filed by the Deputy Commissioner, Jamtara (respondent No. 3 stating therein the Superintendent of Police, Jamtara (respondent No. 4) vide Letter No. 51 dated 25.7.2002 requested that the petitioner should be detained under the Act. Accordingly, a detailed criminal history of the petitioner was submitted and on perusal of the long list of crimes committed by the petitioner in past, the order of detention was passed as the petitioner was an anti social element and he is a habitual offender. It is further stated that the Superintendent of Police again submitted a report giving fresh ground of detention of the petitioner as the earlier detention order was revoked due to non-approval of the State Government and on the fresh grounds, it was necessary to detain the petitioner to prevent breach of public peace and order and, accordingly, the order was passed. It is further submitted that only after being fully satisfied with the report of the Superintendent of Police along with the fresh grounds, it was found necessary to detain the petitioner under Section 12(2) of the Act and thereafter the order of detention of the petitioner was passed which was dully approved by the State of Jharkhand, Department of Home.

4. Mr. Delip Jerath, learned counsel for the petitioner, at the very outset, submitted that the Deputy Commissioner, Jamtara (respondent No. 3) on the recommendation of the Superintendent of Police, Jamtara (respondent No. 4) already passed the order of detention of the petitioner vide order dated 1.8.2002 but the said order could not be approved by the Government of Jharkhand as the Deputy Commissioner, Jamtara (respondent No. 3) failed to make available the documents relating to detention of the petitioner and, as such, the State Government by its letter dated 16.8.2002 already refused to approve the detention of the petitioner, but again on the same and similar allegations/grounds, the respondent No. 3 passed the order of detention of the petitioner under Section 12(2) of the Act which is apparently illegal and cannot be sustained in law. No one can be detained again and again under Section 12(2) of the Act on the same and similar set of grounds/allegations. It is further submitted that the approval made by the State Government as regards to the second detention order is also illegal which has been done beyond the stipulated period of time i.e. 12 days and by antedating, passed the order on 3.9.2002 stating that the approval has been made on 31.8.2002, on which date 12 days required period was expired. It is further argued that the same and similar allegations as regards to the cases pending against the petitioner have been shown in the recommendation of the Superintendent of Police, Jamtara, in which the petitioner has been availing the opportunity of bail and there is no document or evidence to show that the petitioner had ever indulged in conspiracy from the Jail custody and, as such, the petitioner cannot be detained only on mere assumption, hence the order of detention is fit to be quashed.

5. On the other hand, Mr. M.K. Laik, Senior Standing Counsel No. 1 submitted that the Deputy Commissioner, Jamtara (respondent No. 3) has passed the order legally on the recommendations of the Superintendent of Police, Jamtara as the petitioner was having criminal history and he is also a habitual offender. It is also submitted that the petitioner has been indulged in criminal conspiracy even from the Jail custody as he has been operating his criminal activity as well as the State of Jharkhand, Department of Home, also approved the detention order which will be evident from Annexure D to the counter-affidavit, and there is no illegality in the order of detention.

6. Obviously the detention order was passed by the Deputy Commissioner, Jamtara (respondent No. 3) earlier under Section 12(2) of the Act on the recommendation of the Superintendent of Police, Jamtara (respondent No. 4) dated 25.7.2002 but the said detention order could not be approved by the State of Jharkhand, Home Department, because of non-availability of the required documents within the stipulated period of 12 days, as per Letter No. 4048 dated 16.8.2002, so the proceeding started for detaining the petitioner under the Act was already dropped/revoked by the State Government.

7. The word 'revocation' means annulling, rescinding, withdrawing. The word 'expire' means to come to an end or to put to an end to or to terminate or to become extinct or to become void. Non-approval by the State Government includes the revocation of the earlier detention order of the petitioner made by the Deputy Commissioner, Jamtara. It is true that Clause (2) of Section 23 of the Act provides that revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 12 of the Act against the same person.

8. The Superintendent of Police, Jamtara (respondent No. 4) submitted second recommendation dated 17.8.2002 (Annexure 8) giving the same example of the criminal cases being six in number. In paragraph 3, the grounds are also similar to the earlier recommendation for detention of the petitioner except that it has been said that the petitioner is doing criminal activity from the jail custody. The Deputy Commissioner without appreciating the evidence as to whether actually the petitioner is doing criminal activity from Jail and without finding any cogent evidence to this effect, against passed the order impugned detaining the petitioner under Section 12(2) of the Act and recommended for approval of the State Government (Home Department).

9. From going through Annexure D to the counter-affidavit, it appears that theapproval was made by the State Government (Home Department) by order dated 3.9.2002 stating that approval has already been made on 31.8.2002 but surprisingly enough to note that no such order has been placed before this Court to show that actually approval was made on 31.8.2002, on which date 12th day from the order of detention expires. From the order of the Home Department, Government of Jharkhand (Annexure D) it is apparent that it was approved on 3.9.2002 after expiry of 12 days without complying the mandatory provision of Clause (3) of Section 12 of the Act.

10. In the earlier recommendations, the grounds, for detaining the petitioner were given showing criminal cases pending against him which are as follows :--

(i) Jamtara P.S. Case No. 78 of 1996 under Sections 452, 307, 506 and 34 of the Indian Penal Code.

(ii) Jamtara P.S. Case No. 199 of 1996 under Section 395 of the Indian Penal Code.

(iii) Jamtara (Mihijam) P.S. Case No. 261 of 1996 under Section 392 of the Indian Penal Code.

(iv) Jamtara (Mihijam) P.S. Case No. 250 of 1996 under Section 392 of the Indian Penal Code.

(v) Jamtara P.S. Case No. 194 of 2001 under Sections 147, 148, 149, 353, 427 and 307 of the Indian Penal Code, Section 27 of the Arms Act and Section 3/4 of the Explosive Substance Act.

(vi) Kundahit P.S. Case No. 15 of 2002 under Sections 341, 323, 452 and 353 of the Indian Penal Code.

11. The same and similar cases have been shown in the second ground/recommendation for detention of the petitioner. Most of the cases pending against the petitioner are relating to the year 1996. Only one fresh ground has been given in the second recommendation that he has been indulged in criminal activity from the Jail custody, but as discussed above, no any cogent evidence coming to show that he has actually been operating criminal activity from the Jail custody. No any chit of paper has been produced to substantiate this allegation. The order of detention declared by the Government to be illegal for non-compliance of the mandatory provision resulting non-approval of the earlier detention amounts to revocation of the first detention order. Hence, the subsequent order of detention on the same facts and allegations cannot be sustained. The allegation of operating criminal activity from Jail, which is without any cogent evidence, is said to be vague and groundless for which one under the Act. The detaining authority should be very specific putting the ground for detention which would be likely to act in a manner prejudicial to nothing cogent has been placed to substantiate the said allegation. Thus successive detention orders on the same grounds are bad in law. There appears no fresh fact arisen subsequent to the previous order of detention and, therefore, the subsequent order of detention cannot be held to be valid and no one can be detained on mere assumption under the Act.

12. Apart from the above, the State Government (Home Department) passed the order of approval after expiry of 12 days as envisaged under Clause (3) of Section 12 of the Act and that fact is itself evident from the order contained in Annexure D to the counter affidavit passed on 3.9.2002 as it is clear that no any document has been placed to indicate that actually the order of approval was passed on 31.8.2002 rather from Annexure D it is apparent that it was passed on 3.9.2002. Further it is also evident from the Letter No. 4988 dated 5.10.2002 of the Home Department that earlier detention order passed by the Deputy Commissioner, Jamtara (respondent No. 3) was rejected/revoked by the State Government after due consideration but against second detention order was passed on the same and similar grounds and that too has been approved after expiry of 12 days, for which the order of detention cannot be sustained in the eye of law.

13. Having regard to the above facts and circumstances coupled with the evidence on record, there appears that the Deputy Commissioner, Jamtara (respondent No. 3) committed error in passing the order of detention which is liable to be quashed.

14. For the reasons aforesaid, I allow this application and quash the entire proceedings of CCA No. 5 of 2002 including the orders dated 9.8.2002 and 3.9.2002. The petitioner is directed to be released forthwith if not wanted in any other case.