FAHIM KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this writ application the petitioner has prayed for issuance of appropriate writ for quashing the order dated 3.6.1998 passed by the respondent No. 2, the District Magistrate, Dhanbad under Section 12(2) of the Bihar Control of Crime Act, 1981 (hereinafter referred to as 'the Act') and further for a direction commanding upon the respondents to immediately release the petitioner from custody.

(2.) The petitioner's case is that while he was under custody in connection with Dhanbad PS Case No. 347/98 under Sections 302/34, IPC and Section 27 of the Arms Act, he was served with impugned order dated 3.6.1998 directing his detention under Section 12(2) of the said Act. The Petitioner was also served an order passed under Section 17 of the said Act directing him to make a representation to the Home Secretary, Government of Bihar as provided under the Act. The petitioner made a detailed representation against the order of detention explaining about the various cases instituted against him. However, the Deputy Secretary to the Government, Home (Police Department) by order dated 15.7.1998 confirmed and approved the detention of the petitioner till 6.6.1999 i.e. for more than 12 months as contemplated under Sections 21(1) and 22 of the said Act.

(3.) Mr. V. Shivnath, learned counsel appearing on behalf of the petitioner, assailed the impugned order passed by the respondent No. 2 and the order of approval passed by the Government as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the first order of detention was passed by the respondent No. 2 on 3.6.1998 and, therefore, the State Government was empowered to confirm the detention only for a period of 12 months. Learned counsel, therefore, submitted that the detention of the petitioner beyond 2.6.1999 is wholly illegal, mala fide and without jurisdiction. Learned counsel then submitted that the petitioner filed a detailed representation explaining each and every allegation made against him while passing the order of detention but the representation was not considered by the authority in accordance with law, and there appear total non- application of mind by the authority while confirming the order of detention. In this connection, learned counsel relied upon a decision of the Supreme Court in the case of Mohammad Sali V/s. State of Kerala,1996 2 CrLJ 1225. Learned counsel lastly submitted that before passing the order of detention the Magistrate was fully conscious of the position that the petitioner was in jail and was likely to be released. The authority, therefore, instead of opposing the bail application, illegally and with a mala fide intention took the help of the aforesaid Act and passed the order of detention. As a matter of fact the authorities have no material to oppose the bail application of the petitioner and that was the reason why the order of detention was passed. According to the learned counsel, the circumstances in which the order of detention was passed cannot be sustained in law. In this connection, learned counsel relied upon a decision in the case of Satish Kumar V/s. State of Bihar, 1996 2 EastCriC 711.