SURENDRA TIWARY Vs. STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) The petitioner herein has challenged the order of detention passed by the Districl Magistrate. Bokaro on 20th September, 1995 under Section 12(2) of the Bihar Control of Crimes Act, 1981 and served upon the petitioner on the same day while he was in custody in connection with a criminal case in the Bokaro Jail. The order of detention has been approved by the State Government on 30th September, 1995 under Section 12(3) of the Act. The grounds of detention were served upon the petitioner under Section 17 of the Act on 23-9-1995. The matter was referred to the Advisory Board and the respondents communicated to the petitioner that the Advisory Board had opined in favour of the detention of the petitioner. The said communication is Annexure 4, dated 21-12-1995.

(2.) In his writ petition, the petitioner has referred to the various grounds of detention and has submitted that the order of detention has been passed by the detaining authority without application of mind, and in any event, the incidents referred to do not justify his satisfaction that the activities of the petitioner, if not detained, were likely to be prejudicial to the maintenance of public order. At best, it can be said that the actions of the petitioner in the past gave rise to a law and order problem. It is further submitted that the incidents referred to in the grounds of detention are stale incidents and are stray incidents which have no adverse effect either on public order or even on law and order. The case of the petitioner is that since the detaining authority apprehended that in the pending criminal case the petitioner was likely to be enlarged on bail, he passed the order of detention without applying his mind to the facts of the case and the surrounding circumstances. It is, therefore, alleged by the petitioner that the subjective satisfaction of the detaining authority is itself doubtful. In any event, his subjective satisfaction is vitiated on account of the delay, as also on account of the fact that the incidents referred to do not justify his subjective satisfaction that the petitioner's actions were detrimental to maintenance of public order. It is also one of the grounds urged by the petitioner that the order of confirmation retaining to the opinion of the Board was served on the petitioner on 23-12-1995, when the law requires that the Advisory Board must submit its report within 7 weeks from the date of detention. It is, therefore, submitted that the detention of the petitioner on the expiry of seven weeks from the date of detention became bad, since the Advisory Board failed to submit its report in the matter.

(3.) We have noticed the plea of the petitioner with a view to appreciate the grounds on which the order of detention has been challenged. We have no doubt that the detaining authority was required in law, having regard to the allegations made in the writ petition to file a return controverting the allegations, and justifying his subjective satisfaction in the facts of the case and the surrounding circumstances. Unfortunately, the District Magistrate, Bokaro, the detataining authority, has not filed the return, and instead, one Mithilesh Kumar Singh, who was posted as Deputy Collector (Legal Section) has affirmed the counter-affidavit filed on behalf of the detaining authority. We notice from the order sheet of the case that Government Pleader No. 2 accepted notice on behalf of all the respondents. Mr. P. D. Agrawal, G. P. II states that he had addressed communications to respondents 2 and 3 namely, the District Magistrate of Bokaro as well as Joint Secrerary, Police, Government of Bihar, Patna, instructing them to file the return in this case. However the return has been filed by a Deputy Collector purporting to be on behalf of the detaining authority, and no return has been filed on behalf of respondent No. 3.