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Kashi Ram v. District Magistrate/detention Officer, Distt.,rampur & Ors. - HABEAS CORPUS WRIT PETITION No. 2586 of 2005  RD-AH 1299 (10 May 2005)
Court No. 32
Habeas Corpus Writ Petition No. 2586 of 2005
Kashi Ram V. District Magistrate, Rampur and others
Hon.S.Rafat Alam J.
Hon. Vikram Nath J.
In the instant petition sole petitioner Kashi Ram has prayed for issuing direction in the nature of Habeas Corpus commanding the respondents to release him forthwith from the detention and also to quash the order of the District Magistrate, Rampur dated 1.10.2004 detaining him under section 3(2) of the National Security Act, 1980 (herein after referred to as the Act ).
Counter and rejoinder affidavits have been exchanged between the parties and are on record.
We have heard Sri A.K. Sachan, learned counsel for the petitioner and Sri Sudhir Mehrotra learned Additional Government Advocate for respondent nos. 1,2 and 4 and Sri N.C. Nishad learned Addl. Standing Counsel for respondent no.5 Union of India.
It appears that the petitioner is detained on account of his involvement in Case Crime No. 307 of 2004 under sections 302/323/504 and 120 I.P.C. and Case Crime No. 308 of 2004 under section 25 Arms Act. The prejudicial activities of the petitioner are stated in detail in the grounds of detention.
Briefly stated, the allegations are that on 18.07.2004 at about 8.00 a.m. the petitioner armed with country made pistol along with Jai Kishan and Angan Lal armed with Kanta and lathi respectively went to the jungle of the village where the deceased Mohan Lal and his son Jamuna Prasad were trying to start their pumping set. They started abusing and terrorising them and compelled to run towards the village and after chasing them up to the chak road near the village cornered them in sugar cane field and assaulted them with their weapons as a result of which they died. Thereafter they chased away two persons of the village Shyam Lal and Ram Swarup who had seen the incident and were shouting for help. Further the assailants undaunted and fearlessly brandishing their weapons went towards the village and on the way also assaulted Smt. Nathi who was going to work in the fields. The F.I.R. was registered on the information received from Shyam Lal one of the eyewitnesses. Thereafter the District Magistrate on the report of sponsoring authority after being satisfied with the report passed the detention order on 01.10.2004 detaining the petitioner under section 3(2) of the National Security Act, 1980.
Learned counsel for the petitioner inter-alia urged that the detention of the petitioner cannot be sustained on two grounds; firstly the Detaining Authority having knowledge of the fact that the petitioner is already in judicial custody since 19.7.2004 has failed to record his satisfaction that there is every possibility of the petitioner being released on bail. Learned counsel for the petitioner relied upon the decision of Apex Court in case of Surya Prakash V. State of U.P. and others reported in 1994(3) CCR 701(SC); secondly the Detaining Authority in the counter affidavit has not given any explanation for the delay caused in transmitting the representation to the State Government.
It is submitted that the alleged occurrence had taken place on 18.7.2004 and the petitioner was arrested on the next day i.e. 19.07.2004. Since then he was under judicial custody. Therefore, there was no justification for passing further order of detention unless the Detaining Authority had recorded his satisfaction in the order of detention that there is every possibility of the petitioner being released on bail in near future and further that on being released he would indulge in similar prejudicial activities.
In respect of the second contention it is submitted that admittedly the representation of the petitioner was received by the District Magistrate on 18.10.2004 but it was transmitted to the State Government on 28.10.2004 after ten days, whereas in the matter of detention the representation are required to be disposed with utmost promptness and such abnormal delay in forwarding the representation vitiates the continued detention of the petitioner.
On the other hand learned Addl. Government Advocate opposed the writ petition and submitted that the allegations against the petitioner are of serious nature and alleged incident has disturbed the public order and therefore, the order of detention is fully justified.
We have considered the submission made on both sides. There is no dispute on the point that even a person already in judicial custody can be detained under the provisions of the Act provided the Detaining Authority while passing the order of detention is aware of the fact that he is actually in custody and he has reasons to believe on the basis of reliable and cogent material placed before him that there is a real possibility of his being released on bail in near future and on being released he would indulge in similar prejudicial activities and this satisfaction is to be mentioned either in the order of detention or in the grounds of detention. However, where the Detaining Authority despite the knowledge that the detenu is already in judicial custody does not record such satisfaction while passing the order, the order of detention would be vitiated.
In the case in hand from a close reading of the order and the grounds of detention it is apparent that though the District Magistrate was aware of the fact that the petitioner is already in judicial custody in Case Crime No. 307 of 2004 and Case Crime No. 308 of 2004 despite that he did not record his satisfaction about the imminent possibility of release of the detenu on bail. Further in the absence of any cogent material whereupon it could be inferred that the petitioner having been released on bail would indulge in similar criminal activities and also in the absence of satisfaction of the Detaining Authority that there is possibility of the detenu/petitioner being enlarged on bail in near future, the impugned order of detention is vitiated.
He has only mentioned in the ground of detention that the petitioner has applied for bail in Case Crime No. 307 of 2004 before the Chief Judicial Magistrate, Rampur which is fixed for argument on 7.10.2004 and in Case Crime No. 308 of 2004 under section 25 Arms Act is fixed for argument on 04.10.2004 before the Judicial Magistrate. The order further mentions that from the aforesaid facts it is clear that the petitioner is continuously trying to come out on bail and if he comes out on bail he will again indulge in criminal activities and disturb the public order. We are of the view that prescription of law as has been laid down by the Hon'ble Apex Court has not been followed which vitiates the order of detention.
In the case of Dharmendra Sugan chand Chelawat v. Union of India reported in AIR 1990 SC 1196 wherein a three Judge Bench of the Apex Court, while considering the similar question held as under:
"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the Detaining Authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression " compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future; and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
The Hon'ble Apex Court in the case of Surya Prakash Vs. State of U.P.(Supra) reiterated its earlier view and observed as under:
"There is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the Detaining Authority's awareness of the facts that the detenu was in judicial custody at the time of making the order of detention, the Detaining Authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail '' he may again indulge in serious offences causing threat to public order'. (emphasis supplied). To put it differently, the satisfaction of the Detaining Authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified."
In the present case even the report of Sponsoring Authority, a copy whereof is enclosed as Annexure-5 to the writ petition, does not refer to any material to indicate that there was every possibility of the petitioner being enlarged on bail and after release he will engage in similar activities.
In the instant case from the report of Sponsoring Authority, a copy whereof is enclosed as Annexure-5 to the writ petition it appears that no cogent material was placed before the Detaining Authority whereupon it could be inferred that the detenu/ petitioner having been released on bail would engage himself in similar activities. Even in the counter affidavit of the District Magistrate it has not been stated that there was cogent material before him whereupon he was satisfied that the petitioner after release would again indulge in prejudicial activities hence detention was necessary under the provisions of the Act.
So far as the second contention regarding delay in forwarding the representation of the petitioner to the State Government it has no merit because the time consumed in transmitting the representation to the State Government has been explained in para 6 of the counter affidavit and as such the same has no merit.
No doubt the allegations against the petitioner is very serious but in the matter relating to personal liberty of a citizen the prescription of law is to be strictly complied with and therefore, we are constrained to allow this petition in view of the fact that the Detaining Authority has failed to indicate in the order of detention that there is every possibility of the petitioner being enlarged on bail and in absence of any material to show that in the event of release on bail he will indulge in similar criminal activities.
In the result, this petition succeeds and is hereby allowed. The respondents are directed to set the petitioner at liberty forthwith unless his detention is required in any other case. However, there shall be no order as to costs.
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