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Aqil Ahmad v. District Magistrate Bareilly District Bareilly And Others - HABEAS CORPUS WRIT PETITION No. 22880 of 2004 [2004] RD-AH 560 (17 August 2004)


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Court No.32

Habeas Corpus Writ Petition No.22880 of 2004

Aqil Ahmad vs. District Magistrate, Bareilly & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Mukteshwar Prasad, J.


In the instant petition under Article 226 of the Constitution of India the petitioner has challenged the validity of the order of the District Magistrate, Bareilly dated 8.4.2004 detaining him under the provisions of Section 3(2) of the National Security Act, 1980 (hereinafter referred to as ''the Act'), and also order of the State Government dated 19.4.2004 approving the detention for a period of one year.

Counter and rejoinder affidavits have been exchanged and are on record.

We have heard Shri Mahendra Pratap Singh, learned counsel for the petitioner, Shri N.L. Srivastava, learned AGA appearing for respondent nos.1, 2 & 3 and Shri J. Lal, learned counsel for the Union of India.

It appears that the petitioner has been detained on account of his involvement in N.C.R. No.10 of 2004 dated 1.2.2004, under Sections 323/504 IPC lodged by one Asif Ali and in case crime no.13 of 2004, under Section 302 IPC and case crime no.13-A of 2004, under Sections 307/504 IPC.  The alleged prejudicial activity of the petitioner has been stated in detail in the grounds of detention dated 8.4.2004, a copy of which is enclosed as Annexure 2 to the writ petition.

It is inter alia contended that when the impugned order was passed the petitioner was already in custody and, therefore, in view of the law laid down by the Hon'ble Apex Court in the case of Dharmendra Suganchand Chelawat & another vs. Union of India & others, 1990 SC 1196 the detaining authority ought to have recorded his satisfaction that there is possibility of the petitioner to be enlarged on bail in the near future and in the absence of such satisfaction on the cogent material placed before him the impugned order is vitiated and cannot sustain.  Learned counsel also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Paul Manickam & another, 2003 (8) SCC 342.

On the other hand, learned counsel for the respondents opposed the writ petition and submitted that the detaining authority having fully satisfied that the petitioner is likely to be released from jail in the near future passed the impugned order.  He drew our attention to the statement made in the counter affidavit filed by the detaining authority wherein it is stated that the deponent was fully aware of the judicial custody in criminal case and was also satisfied that the effective pairvi was being done for his release from jail, which was apparent from the fact that he moved bail application before the Chief Judicial Magistrate, which was rejected.  However, he could not point out from the grounds of detention or from the report of the sponsoring authority that there was cogent material for being satisfied that the petitioner was likely to be released on bail in the near future.  The Hon'ble Supreme Court in catena of decisions has held that the order of preventive detention can be passed against a person already in custody provided the detaining authority is aware of the fact that the detenu is already in detention and there was compelling reasons justifying such detention despite the fact that the detenu is already in custody.  While considering the expression ''compelling reasons' it has further been held that there must be cogent material before the detaining authority on the basis of which it must be satisfied that the detenu is likely to be released from the custody in the near future.  Reference may be made to the decisions of Hon'ble Apex Court in the cases of Dharmendra Suganchand Chelawat & another vs. Union of India & others (supra), Union of India vs. Paul Manickam & another (supra), Smt. Qamrunnisa Vs. Union of India & others, 1991 (1) SCC 128 and Amrit Lal Vs. Union Government through the Secretary, Ministry of Finance & others, 2001 SCC (Crl.) 147.  Therefore, where the order of detention in respect of a person already in custody does not indicate that the detenu was likely to be released on bail in the near future, the order of detention would be vitiated.  

The contention advanced on behalf of the respondents that it has come in the counter affidavit of the detaining authority that on the material placed before him he was fully satisfied that an effective pairvi was being made for the release of the petitioner from jail inasmuch as the bail application moved before the Chief Judicial Magistrate was rejected, has no substance for the reason that such satisfaction is to be indicated in the grounds of detention.  It is settled legal position that when a statutory functionary makes an order based on certain grounds its validity is to be tested on the reason mentioned in the order and the same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.  In the grounds of detention it has only been indicted that detenu's pairokar has moved application for bail before the learned court, Bareilly and he is making full efforts for his being released on bail, which is, in our view, is not full compliance of law as has been laid down by the Hon'ble Apex Court.  The satisfaction regarding possibility of being enlarged on bail in the near future is to be incorporated in the grounds of detention based on the material placed before the detaining authority otherwise, the order of detention in respect of a person already in custody vitiates.

Therefore, in the facts of the case and also in view of the fact that the detaining authority failed to indicate in the order that the petitioner is likely to be enlarged on bail in the near future though he was aware that he is already in judicial custody in Bareilly the order of detention cannot sustain.  We need not to address on the other point raised in the writ petition, as this petition deserves to be allowed on the point indicated above.

In the result, the writ petition succeeds and is hereby allowed.  

The impugned order dated 8.4.2004 is quashed.  The respondents are directed to set the petitioner at liberty forthwith unless he is required to be detained in any other case.  However, there shall be no order as to costs.




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