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Anuj v. Union Of India And Others - HABEAS CORPUS WRIT PETITION No. 36320 of 2004  RD-AH 463 (21 February 2005)
H.C. Writ Petition No. 36320 of 2004.
Union of India & others. Respondents.
Hon.S.Rafat Alam, J.
Hon. Vikram Nath, J.
In the instant petition, the sole petitioner has questioned the validity of the order of the District Magistrate, Bulandshahr dated 11.04.2004 detaining the petitioner under the provisions of Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the Act).
Counter and rejoinder affidavit have been exchanged between the parties and are on record.
We have heard Sri G.K. Khanna, learned counsel for the petitioner and Sri Arvind Tripathi, learned Additional Government Advocate, who has appeared on behalf of respondent no. 2 to 4. We have also perused the record.
Although the order of the detention has been challenged on several ground, during the course of arguments, learned counsel for the petitioner submitted that petition deserves to be allowed on the ground that the detaining authority which has detained the petitioner has not recorded his satisfaction that there was imminent likelihood of the petitioner being enlarged on bail, despite the fact that he had knowledge that the petitioner was already in custody in Case Crime No. 20 of 2004 under Section 302, 120B, 34 IPC and 7 Criminal Law Amendment Act, on the date the order of detention was passed. Reliance has been placed on the judgment of the Apex Court in the case of Union of India vs. Paul Manickam and another reported in (2003) 8 SCC 342, Kishan Kumark vs. State of U.P. & others, Dharmendra Suganchand Chelawat vs. Union of India and others reported in (1990) 1 SCC 746, Smt. Qamrunnisa vs. Union of India & others reported in 1991 (1) SCC 128 and in case of Alijan Mian vs. District Magistrate, Dhanbad and others reported in AIR 1983 SC 1130 and in N. Meera Rani vs. State of Tamilnadu reported in AIR 1989 SC 2027.
On the other hand, learned Additional Government Advocate opposed the writ petition. The learned counsel for the respondent submitted that the Detaining Authority has stated in detail the grounds of detention contained in Annexure 7 to the writ petition. Briefly stated the allegation is that the petitioner is member of Sonu Tyagi Gang and his main activities include extortion of money, and grabbing of shops, houses and also collect Chauth and Hafta for keeping the shops and also for getting forcible and wrongful possession of houses and shops. However, Sri Tripathi learned Additional Government Advocate could not point out from the detention order and the grounds that such satisfaction as required had been recorded by the Detaining Authority.
In all the cases referred to above the Hon'ble Supreme Court has observed that the awareness of the detaining authority about the custody of the denenue and also the satisfaction regarding possibility of the detenue being enlarged on bail is necessary for passing the order of detention. A perusal of the detention order does not disclose any such satisfaction having been recorded by the Detaining Authority in the order and grounds of detention. Therefore, in view of the exposition of law and also in view of the fact that the detaining authority failed to record such satisfaction, the detention of the petitioner under the provisions of the Act is vitiated.
In the result, the writ petition succeeds and is allowed. The respondents are directed to set the petitioner at liberty forthwith provided is not required to be detained in any other case. However, there shall be no order as to costs.
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