JAI RAM KUNWAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has been detained in preventive custody under section 12(2) of the Bihar Control of Crimes Act, 1981 (herein after referred to as the said Act) by the District Magistrate, Begusarai vide his memo no.3156 dated 18th November, 2001. The detention has been approved by the State Government under section 12(3) of the said Act on 29th November, 2001 and confirmed under section 21(1) read with section 22. of the said Act on 27th December, 2001. In between, after service of ground of detention dated 19.11.2001 the petitioner made representation on 9.12.2001 which was rejected on 22.12.2001. The petitioner seeks quashing of the said orders and his release.

(2.) SRI Dinu Kumar, learned counsel for the petitioner made three -fold submission. He firstly submitted that the petitioner has been detained to prevent him from securing bail in Barauni (Zero Mile) RS. Case No. 370/2001 under section 25(1 -B) A and 26 of the Arms Act; Secondly, from the grounds of detention it would appear that the petitioner has been detained on the basis of incidents which took place 14. months prior to the detention order on 13.8.2000 and 7.9.2000. There being no proximity between the incidents and the detention, the order is fit to be set aside. Lastly, there was inordinate delay in disposal of the representation of the petitioner and on this ground too the detention is liable to be set aside.

(3.) THE right to have the representation considered within a reasonable time is a constitutional right and where the representation of the detenu does not receive prompt attention by the detaining authority, the detention is liable to be quashed as being violative of the mandate of Article 22(5) of the Constitution. However, as the Supreme Court has clarified what is of substance is not the period of delay but the explanation of the delay. While in one case a shorter but un -explained delay may vitiate the detention, in another case, longer delay may not if an explanation is furnished for the same. In the instant case it is true that the file got stuck up in the office between 11.12.2001 and 19.12.2001 but that was on account of non -availability of the Under Secretary. It is well known that the Government functions through hierarchy of officials and as per practice and procedure the Dealing Assistants are supposed to put up notes to the Under Secretary which in this case was done but be cause the Under Secretary was not available the file could not go beyond untill 19.12.2001. We are satisfied, in the facts and circumstances of the case, that the delay was not intentional. In any view,the representation was disposed of within 13 days. In these premises it does not appear that there was inordinate delay in disposal of the representation.