Background 

In the Matter at hand Ashok Yadav v. State of Jharkhand a petition opposing the preventive detention order for the petitioner for three months that was approved by the Jharkhand Department of Home, Prison, and Disaster Management and authorised under Section 12(2) of the Jharkhand Control of Crimes Act, 2002, by the District Magistrate/Deputy Commissioner.

Argument Advance 

The petitioner argued that his right as a detainee under Article 22(5) of the Constitution was infringed by the excessive and inexplicable delay in determining his submission dated 26 October 2022.

The State argued that the petitioner was characterised as an anti-social element who engaged in gang warfare, illegal mining, and extortion as his primary occupations. He was also accused of serious allegations of attempted murder, extortion, illegal possession of stolen property, and violations of the SC/ST Act, the Jharkhand Mines and Minerals Act of 2004, and the Arms Act of 1959.

Conclusion of the Court

The orders were overturned by the division bench of Justice Ratnaker Bhengra and Justice Shree Chandrashekhar of the Jharkhand High Court.

The Court determined that it was improper and unconstitutional to take too long to decide a detainee’s appeal against a preventative detention order. The court emphasised that the Under Secretary of the Department of Home, Prison, and Disaster Management, who was not the competent authority under the Crimes Control Act, decided on the petitioner’s representation. The Court argued that the District Magistrate has the authority to imprison someone to preserve public order under Section 12 of the Crimes Control Act. Even though the order of preventive detention shows the correct application of mind, the Court rejected the State’s rationale for a delay of at least 50 days, holding that any infringement of constitutional protections renders the order unconstitutional. The court emphasised that regardless of the detainees’ criminal status, a decision about their representation must be made as soon as possible without delay. The Court also questioned the legal certainty around an excessive delay in taking a detainee’s counsel into account, given that the State government is in charge of doing so in cases involving preventive detention.

The court stated that because the initial order of preventive detention was already deemed invalid, the subsequent orders issued by amending the original order also became invalid in law due to the unexplained delay in handling the petitioner’s representation and the procedural irregularities, and were therefore subject to being overturned. The Court also revoked the previous orders that had extended the petitioner’s preventative detention and ordered his release.

CASE NAME – Ashok Yadav v. State of Jharkhand, Writ Petition (Cri) No. 598