- (1.) THIS writ petition under Article 226 of the Constitution of India has been filed against the orders of detention passed under Section 12 (2) of the Jharkhand Control of Crimes Act, 2002 ('the Act' for short). Mr. A. K. Kashyap, learned senior counsel appearing for the petitioner submitted that the District Magistrate did not inform the petitioner about the right of representation in the detention order contained in Memo no. 11 -99 dated 21.7.2011 (Annexure 1). On this aspect he relied on the judgment reported in AIR 2000 SC 2504 State of Maharashtra Vs. Santosh Shankar Acharya in which it was inter -alia held that: The only logical and harmomious construction of the provisions of the Act would be that in a case where an order of detention is issued by an officer under S. 3(2) notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Sec. 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of S. 22, of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under S. 14 of the Maharashtra Act Such a construction of powers would give a full play to the provisions of Sec. 8 (1) as well as S. 14 and also S. 3 of the Maharashtra Act This being the position, non -communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under Sec. 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Art 22(5) of the Constitution. He also relied on the judgment reported in 2008 (1) East Cr. Cases 18 (Patna) Binod Yadav Vs. State of Bihar, in which the judgment of Santosh Shankar Acharya (supra) was followed in relation to the Bihar Control of Crimes Act 1981, having similar provisions with the Act. He further submitted that the representation filed by the petitioner was not placed before the Advisory Board. On this point, he relied on paragraph 15 of the judgment reported in 2008 (4) East Cr. Cases 167 (Pat) of Sural Kumar Sahni Vs. State of Bihar, paragraph 6 of the judgment reported in 1977 Cri. L.J. 406 Siraj Sheikh Vs. District Magistrate, (Calcutta), and paragraph 20 of the judgment reported in 1970 SCC (Cr.) 92 Jayanarayan Sukul vs. State of West Bengal, which reads as follows: 20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.
(2.) HE also submitted that there is non application of mind on the part of the concerned authorities inasmuch as, in some of the cases which have been made grounds for detention, the petitioner is not involved. However, in view of Section 12 A of the Act, he did not press this point further. On the other hand Mr. Kumar Sundaram, learned counsel appearing for the State supported the impugned orders. He submitted that the petitioner has not suffered any prejudice by not communicating him the right of representation, inasmuch as, soon after he was detained on 21.7.2011, his wife made a representation on 25.7.2011. He further submitted that when the matter was referred to the Advisory Board by the Home Department, the petitioner had not made any representation. It was made afterwards i.e., on 17.8.2011. The Home Department after considering rejected it on 19.8.2011. Therefore, he submitted that the aforesaid contentions raised on behalf of the petitioner have no merit. He also produced the relevant record before us. We also perused the records of learned Advisory Board.
(3.) ON this, Mr. Kashyap submitted that suitable conditions can be imposed on the petitioner.;