"Alleged Detention Has Expired Long Back With A Passage Of Time" Supreme Court Dismisses Jharkhand Gobvt's Plea Assailing HC Order Quashing Detention Orders

Observing that the order of detention in terms of the provisions of the Bihar Control of Crimes Act, 1981 ("Act") had expired long back, the Supreme Court recently dismissed a special leave petition assailing Jharkhand High Court's order of declaring continuous detention after expiry of first three months of the detention as bad in the eyes of law.

The bench of Justices Ajay Rastogi and AS Oka in their order said,

"In the given facts and circumstances and the fact that the alleged detention has expired long back with a passage of time, we find no reason to entertain the present Special Leave Petitions which are, accordingly, dismissed."

Counsel appearing for the State contended that the observations in the impugned judgement were not in conformity with the view of the Top Court in Mrs. T. Devaki vs. Government of Tamil Nadu and Ors. (1990) 2 SCC 456. Counsel also drew court's attention to the judgement passed by Jharkhand High Court on December 19, 2017 wherein the High Court took note of the impugned judgement and did not concur with the view expressed.

Case Before Jharkhand High Court

The accused(s)/ petitioners had approached the High Court assailing the detention order passed against them under Section 12(2) of the Act by way of writ petition(s). They were also aggrieved by the subsequent steps that were being followed resulting in the detention of the petitioners for a period of 3 months which were extended for further period of three months from time to time.

The issue for consideration before the High Court was whether the detaining authority could without any basis and without getting further confirmation by the Advisory Board, extend the period of detention. Another was whether without there being any further opinion of the Advisory Board taken by the competent authority, the period of detention of a detenu could be extended for three months at a time.

The petitioner's counsel submitted that the preventive detention of the petitioners was bad in law since the petitioner's case after the first detention order was never reviewed by the concerned authority. Counsel also contended that the petitioners were not given any opportunity to represent before them for reviewing the order of detention and thus the basic right of the petitioners were curtailed. It was further submitted that their detention was extended for three months each merely by concerned authority's order without taking the Advisory Board's opinion as to whether the detention was necessary or not. Petitioner's counsel also submitted that keeping the petitioner's in custody was against the provisions of law as enumerated in the Jharkhand Control of Crimes Act since confirmation of the order of the preventive detention made by the detaining authority was absent.

Opposing the prayer made by the petitioners the counsel appearing for the State submitted that the order was passed u/s 12 of the Act pursuant to which it was confirmed by the State Government as well as by the Advisory Board. Relying on the Top Court's judgement in Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh and Others reported in (2015) 13 SCC 722, counsel submitted that the State Government was detaining a detenu for a maximum period of three months at a stretch, which was being extended by the authorities subsequently. With regards to further confirmation by the Advisory Board for subsequent extension of the period of preventive detention of the petitioners, the counsel submitted that the procedure with respect to preventive detention of the petitioners had duly been followed and it was confirmed by the Advisory Board.

The bench of Justice Rongon Mukhopadhyay while allowing the writ applications observed that,

"None of the extension orders indicates that the recommendation for extension made by the District Magistrate was ever placed before the Advisory Board. Neither the succeeding orders reveal such fact nor any statement has been made in the counter affidavit filed by the State controverting the same. It is, thus, an admitted fact that the subsequent extension of the order of preventive detention of the petitioners were at the State Government level without activating the mechanism of getting it confirmed by the Advisory Board."

Case Title: State of Jharkhand & Ors v. Prince Khan Etc| Petitions for Special Leave to Appeal (Crl.) No(s). 4729- 4730/2017

Coram: Justices Ajay Rastogi and AS Oka

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