Criminal Writ Jurisdiction Case No. 525 of 2007. Case: Binod Yadav Vs The State of Bihar and Ors.. High Court of Patna (India)
| Case Number | Criminal Writ Jurisdiction Case No. 525 of 2007 |
| Counsel | For Appellant: Ram Suresh Rai, Sr. Adv., Bhola Prasad, Dilip Kumar and Swapnil Kumar Singh, Advs. and For Respondents: Lalit Kishor, Sr. Adv. and Addl. Adv., General 3 |
| Judges | S.K. Singh and Syed Md. Mahfooz Alam, JJ. |
| Issue | Constitution of India - Article 22(5); General Clauses Act, 1897 - Section 11, General Clauses Act, 1897 - Sections 11(1), 12, 12(2), 21; PIT Narcotic Drugs and Psychotropic Substances Act ; Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ;Maintenance of Internal Security Act, 1971 - Section 14 ; Bihar Control of ... |
| Citation | 2007 (2) BLJR 3011, 2009 (II) DMC 617, 2009 (2) PLJR 837 |
| Judgement Date | August 31, 2007 |
| Court | High Court of Patna (India) |
Judgment:
Shiva Kirti Singh, J.
1. Learned Counsel for the petitioner and learned Addl. Advocate General III have been heard in detail so that this writ petition may be disposed of at the stage of admission itself.
2. Petitioner has sought for a writ in the nature of Habeas Corpus seeking his release from preventive detention pursuant to order dated 22.5.2007 (Annexure-1) issued by the District Magistrate, Bhagalpur under Section 12(2) of Bihar Control of Crimes Act, 1981 (hereinafter referred to as 'the Act') which has been confirmed by the State Government vide order dated 1.6.2007 (Annexure-2).
3. Petitioner is presently in preventive jail custody at Central Jail, Bhagalpur since 22.5.2007. While in such custody, on 6.6.2007 he was served with order of the State government contained in Annexure-2 dated 1.6.2007 whereby he was informed that the State Government has approved the order of the District Magistrate dated 22.5.2007 and if the petitioner wishes then he may file his written representation against order of preventive detention to the State Government through the Superintendent of Central Jail, Bhagalpur. Even prior to service of grounds of detention, as appears from Annexure-3 on 23.5.2007, through an Advocate the petitioner filed a representation/petition before the District Magistrate, Bhagalpur praying for release from jail custody. No order appears to have been passed in respect of that representation. Through a communication dated 24.5.2007 contained in Annexure-4, the District Magistrate, Bhagalpur communicated to the petitioner the grounds for his preventive detention in which four criminal cases against the petitioner were given as grounds and altogether seven criminal cases of earlier period were shown as criminal history of the petitioner. On the basis of those materials as appears from Annexure-4 the District Magistrate came to a subjective satisfaction that petitioner falls in the category of anti social element; his activities had created fear and tenor in the general public and the same was prejudicial to maintenance of public order. It further appears from order of the State Government contained in memo No. 7149 dated 14.7.2007 that the Advisory Board had also opined in favour of preventive detention of the petitioner under the provisions of the Act.
4. While communicating the grounds of detention, through Annexure-4 dated 24.5.2007 and also through order of the State Government under Section 12(3) of the Act dated 1.6.2007 (Annexure-2) the petitioner was informed that he could represent before the State Government. Apparently due to Section 17 of the Act, the petitioner was never informed that he could represent before the District Magistrate, Bhagalpur.
5. On behalf of the petitioner an argument was advanced that there is no valid delegation of the power of preventive detention by the State Government in favour of the District Magistrate, Bhagalpur. In reply learned State counsel relied upon the impugned order contained in Annexure-1 which refers to a notification of the State Government under Section 12(2) of the Act dated 22.12.2006 and a memo No. 2558 dated 9.3.2007. Further to make the position clear, a copy of notification dated 9.3.2007 has been brought on record as Annexure-B to a supplementary counter affidavit filed on 6.8.2007. That notification clearly shows that there was a valid delegation of power to order for preventive detention in favour of the District Magistrate, Bhagalpur for the period 1.4.2007 to 30.6.2007. Hence, first point raised on behalf of the petitioner is found without any substance.
6. The next submission advanced on behalf of the petitioner raises an important question of law as to...
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