- (1.) The petitioner was served with a notice dated 27 th November, 2010, under Section 3 of the Jharkhand Control of Crimes Act, 2002 (wrongly mentioned in the notice as Bihar Control of Crimes Act, 1981), a copy of which has been placed on record as Annexure-1. The petitioner's contention is that he submitted representation against the said notice; however, proceeding under Section 3 of the Act of 1981 was dropped vide order dated 25 th March, 2011 after observing that since an order under Section 12 (2) of the Act of 2002 for detention of the petitioner has been passed, the proceeding under Section 3 of the Act of 2002 has become infructuous. On 25 th March, 2011 a separate order of detention was passed under Section 12 (2) of the Act of 2002, a copy of which has been placed on record as Annexure 4 and grounds for passing such a order are given separately in memo no. 454/c dated 25 th March, 2011. The petitioner's further contention is that immediately after service of detention order, he submitted a representation against the order of detention to the State Government through the Jail Authorities as it is permissible and a right given to every detenue under Section 17 (1) of the Act of 2002. The State Authority was under obligation to decide the representation of the writ petitioner forthwith and if, not forthwith, then without any delay. This right of representation of the petitioner is not only by virtue of Section 17 (1) of the Act of 2002, but as has been conferred by Clause 5 of the Article 22 of the Constitution of India.
(2.) By not deciding the petitioner's representation, the State Government has violated the Constitutional provision and played with the liberty of the writ petitioner as if, the petitioner's representation would have been considered in time, the State Government may have dropped the proceedings initiated under Section 12 (2) of the Act of 2002. Not only this, the petitioner when challenged the order of detention, the State Government passed the confirmation order on 31 st March, 2011 and that too, without rejecting the petitioner's said representation. The petitioner's representation even thereafter was not considered and decided by the State Government and the petitioner, therefore, preferred the writ petition before this Court on 20.05.2011 challenging the petitioner's detention. In the writ petition, counter was filed by the State on 26.6.2011 and then, before filing the counter affidavit, the petitioner's representation was not considered and decided by the State Government, though it would not have made the illegal detention of the petitioner a legal detention. The State Government, after two months of filing of the counter in futile effort to cover up the illegality, on 6 th August, 2011, rejected the petitioner's representation vide, order placed on record as Annexure 'X', submitted along with the supplementary affidavit dated 17 th August, 2011. The representation of the petitioner has been rejected after taking into consideration the opinion of the Advisory Board also but without considering any of the submissions of the writ petitioner.
(3.) Learned counsel for the petitioner vehemently submitted that consideration of the representation of a detenue is mandatory and non-deciding of the representation of the detenue renders the detention proceeding invalid. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Mohinuddin alias Moin Master Vs. District Magistrate, Beed and others, 1987 4 SCC 58, wherein it has been held that failure on the part of the State Government to consider the representation made by the detenue renders the detention of the detenue invalid and continuation of detention, in such situation, is constitutionally impermissible.;