Jharkhand High Court: In a petition challenging order of preventive detention passed by District Magistrate-cum-Deputy Commissioner on 16-09-2022 under Section 12(2) of Jharkhand Control of Crimes Act, 2002 and the confirmation order dated 22-11-2022 signed by the Department of Home, Prison and Disaster Management of Jharkhand approving preventive detention of the petitioner for 3 months, the Division Bench of Shree Chandrashekhar and Ratnaker Bhengra, JJ. quashed the said orders.
The Court mentioned the history of the instant petition which reflected almost 6 months’ delay on part of the petitioner, and highlighted the petitioner giving an impression before the Supreme Court as if the petition was not being heard by the High Court. The Court gave a reality check for the petitioner that “the exercise of powers under Article 226 of the Constitution is discretionary and must necessarily depend upon the unblameworthy conduct of the person seeking relief. Therefore, the doctrine of laches can be invoked to deny relief to a person if he fails to put forth a plausible and acceptable explanation to the Court.”
However, the Court decided to examine the instant matter considering the safeguard provided to a detenu under the Constitution of India. It was contended by the petitioner that there was an inordinate and unexplained delay in deciding his representation dated 26-10-2022 which violated his right as a detenu under Article 22(5) of the Constitution.
As per the counter-affidavit filed on behalf of the State Police, the petitioner was described as an anti-social element whose main profession was illegal mining and extortion and was also involved in gang wars being involved in 6 criminal cases facing serious allegations of attempt to murder, extortion, illegal possession of stolen property, offences under SC/ST Act, Jharkhand Mines and Minerals Act, 2004 and Arms Act, 1959.
It was further highlighted by the Court that the counter-affidavit by the Department of Home, Prison and Disaster Management reflected that the order of preventive detention of 16-09-2022 was approved by the government on 27-09-2022 and the Advisory Board through proceeding dated 1-11-2022 clarified that there was sufficient cause for the petitioner’s detention. His representation was received in the Department on 3-11-2022 and rejection order was issued on 15-12-2022.
The Court hinted towards the powers to legislate preventive detention laws under Entry 9 of List I of Schedule VII empowering the Union Legislature and Entry 3 in List III of Schedule VII empowering the Union and State Legislatures. It further pointed out the Constituent Assembly debates wherein, the interest of State was given precedence over liberty of an individual but thought it necessary to make such powers subject to certain Constitutional safeguards.
The Court explained Section 17 of Crimes Control Act which gives right to the detenu to make representation against the order of preventive detention, provisions only being a reiteration of the Constitutional remedy under Article 22(5). The Court relied on Amir Shad Khan v. L. Hmingliana, (1991) 4 SCC 39 wherein the Court held that “right to make a representation against the detention order thus flows from the Constitutional guarantee enshrined in Article 22(5) which casts an obligation on the authority to ensure that the detenu is afforded the earliest opportunity to exercise that right, if he so desires”. It further referred to Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 wherein, the Court stated four principles to be followed regarding representation of detenus.
The Court held the inordinate and unexplained delay in disposal of representation made by the detenu against the preventive detention order of 16-09-2022 illegal and unconstitutional. The Court directed that the continued detention of the detenu must end forthwith. It explained that a glance at order dated 15-12-2022 made it clear that the petitioner’s representation was decided by the Under Secretary, Department of Home, Prison and Disaster Management, who was not the competent authority under the Crimes Control Act. The Court brought forth that Section 12 of Crimes Control Act empowered the District Magistrate as competent authority to detain a person on the ground of maintaining public order, however, the reports of Sub-Divisional Police Officer and Superintendent of Police were made the foundation for passing preventive detention order against the petitioner.
The Court rejected any justification on part of the State regarding delay of at least 50 days on the ground that the matter was ‘under the process’ and commented that “even where the order of preventive detention reflects proper application of mind inasmuch as the detention order records the reason for detention any violation of the Constitutional safeguards shall render the preventive detention order illegal.”
The Court explained the legal position that “the detenu may be a criminal, a hardened criminal or a smuggler but having regard to the Constitutional mandate it is imperative that his representation is decided at the earliest without any delay.” The Court knocked over the certainty in law regarding unreasonable delay in considering a detenu’s representation having the effect of invalidating the order of preventive detention, and the State government being the authority concerned being bound to consider the detenu’s representation for the purpose of preventive detention matters.
The Court relied on State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667 wherein, the directions issued by a State officer, which were not established to have been issued pursuant to any decision taken by the competent authority in terms of the Rules of Executive Business of the State framed under Article 166 of the Constitution have been held illegal.
The Court pointed out that the records reflect the absence of application of mind by the Departmental Minister who simply accorded his approval to the proposal prepared by the Department of Home, Prison and Disaster Management, whose act was also held responsible which seriously affected the Constitutional right of the detenu, for which reason as well, the order dated 15-12-2022 was rendered illegal. The Court held their acts in abdication of the official duty and a reflection of lack of devotion to duty warranting initiation of a departmental proceeding.
The Court relied upon the settled law that “if the initial action is not in consonance with law no subsequent proceeding can be validated by any means” as held in the case of Mangal Prasad Tamoli v. Narvadeshwar Mishra, (2005) 3 SCC 422 that “if an order at the initial stage is bad in law then all further proceedings consequent thereto shall be non est and have to be necessarily set-aside.”
The Court said that because the initial order of preventive detention was already held invalid, the subsequent orders issued by amending the original order also became bad in law as through order dated 16-09-2022 on account of unexplained delay in disposal of representation of the petitioner and the procedural illegalities, therefore liable to be quashed. The Court also quashed the orders dated 15-12-2022 and 15-03-2023 by which preventive detention of the petitioner was extended and ordered the release of the petitioner.
[Ashok Yadav v. State of Jharkhand, 2023 SCC OnLine Jhar 1038, decided on 14-07-2023]
Judgment by: Justice Shree Chandrashekhar
Advocates who appeared in this case :
For Petitioner: Advocate Vimal Kirti Singh, Advocate Manjusha Priya, Advocate Ujjal Choudhary, Advocate Siddhartha Gautma;
For State: Mrinal Kanti Roy GA-I, Chandan Tiwari, AC to GA-I.
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