DULAL NISHAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) In this writ application filed under Arts. 226 and 227 of the Constitution, the petitioner has prayed for quashing the order of detention passed under S. 12(2) of the Bihar Control of Crimes Act, 1981 (hereinafter referred to as the Act) against the petitioner, vide Annexure-1, and also the confirmation order of his detention passed by the State Government, vide Annexure-4.

(2.) The petitioner was in custody in connection with Manjhari P.S. case No. 2/2001 under S. 386/387/34, IPC when the impugned order passed by the respondent No. 3-District Magistrate, West Singhbhum, was served on him on 7-5-2001 and the Government confirmed the order of his detention, wide Annexure-2, on 24-3-2001. The petitioner thereafter filed his representation, vide Annexure-3 and that representation was placed before the Advisory Board. On 20-6-2001, vide Annexure-4, the order dated 14-3-2001, Annexure-1, was confirmed by the State Government of Jharkhand, and the petitioner was ordered to be detained till 6-5-2002.

(3.) The case of the petitioner is that the impugned order is mala fide because the detaining authority has merely mentioned in the impugned order that the order has been passed only with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order and the petitioner has been said to be an anti-social element in that order. According to the petitioner, that order has been mechanically passed with the intent to deprive the petitioner of his liberty. The contention of the petitioner is that when the detaining authority was passing the order, it was not even aware that the petitioner was, at that time, already in jail custody and the detaining authority passed the order of his "immediate arrest" which indicates that there was non-application of mind. The petitioner's further case is that in Maffasil P.S. Case No. 11/99 under S. 302/34, IPC and 27 of the Arms Act, he was acquitted of the charge, but the case under the Arms Act is still pending against him in which he has been granted bail. With regard to Manjhari P.S. Case No. 6/2001 under S. 386/387/34, IPC his case is that he is in jail as the case and his bail application is pending. His further contention is that as he was acquitted in the case aforesaid (Muffasil P.S. Case No. 11/99), this could not have been the ground for detention and for this ground of detention, the entire detention order is vitiated. The contention of the petitioner is that the petitioner is not a habitual offender and therefore, he does not come within the mischief of S. 2(d) of the Act. With regard to the earlier cases in the context of his criminal history i.e. P.S. Case No. 17/1998 under S. 379/307 etc. IPC, Sadar P.S. Case No. 114/1993 under S. 394/411, IPC, the case of the petitioner is that the first case it is pending and the petitioner is on bail and in second case, it is also pending and the petitioner is on bail.