Jitendra Yadav vs State Of U.P. And 3 Others
2015 Latest Caselaw 1564 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 

 
Habeas Corpus Writ Petition No. 8528 of  2015
 

 

 

 
Jitendra Yadav                                                 ........................ Petitioner
 

 

 
Vs.
 

 

 
State of U.P. And three others                         .....................Respondets
 

 

 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble B.K.Narayana,J.)

Heard learned counsel for the petitioner, Sri. J.K.Upadhyay, lerned AGA for the State and Sri Brij Lal, learned counsel for the Union of India.

This habeas corpus writ petition has been filed on behalf of the petitioner Jitendra Kumar with a prayer to isssue a writ order of direction in the nature of certiorari quashing the impugned detention order dated 28.10.2014 passed by District Magistrate, Ballia (Annexure-1) to the writ petition. Further prayer has been made to issue a writ order or direction in the nature of habeas corpus commanding the respondent nos. 1, 2 and 3 to set the petitioner, who is presently detained in District Jail, Ballia, at liberty.

The facts of the case in brief are that the District Magistrate, Ballia passed the order dated 28.10.2014 in exercise of the powers conferred on him under Section 3(2) of the National Security Act (hereinafter referred to as 'NSA') while the petitioner was in District Jail, Ballia on account of his being accused of case crime no. 420 of 2014, under Sections 147, 148, 149, 307, 386 and 279 IPC and 7 Crl. Law Amendment Act. The copy of the detention order and the grounds of detention and all other connected papers were served upon the petitioner while he was in jail in connection with the aforesaid case crime. The petitioner made a representation to the Chairman, Advisory Boad, Lucknow, annexure-3 to the writ petition. The detention order was approved by the State Government respondent no.1 vide order dated 12.12.2014 Annexure-4 to the writ petition.

Learned counsel for the petitioner submitted that the impugned detention order has been passed by the respondent no.3 against the petitioner on account of his alleged participation in a solitary incident which had taken place on 23.07.2014 at about 11.30 a.m. in Bahadurpur Chatti, P.S. Kotwali, District Ballia, on the basis of which case crime no. 420 of 2014, was registered against the petitioner and other accused. Advancing his submissions further, learned counsel for the petitioner submitted that since the impugned order of preventive detention was passed by the respondent no.3 while the petitioner was in prison as a person under judicial custody, it was incumbent upon the detaining authority respondent no.3 while passing impugned order of detention to record therein that there was strong possibility of the detenue being released on bail from the said judicial custody, the detaining authority respondent no.3 having failed to record any such satisfaction in the impugned order the same stands vitiated and liable to be set aside.

He next submitted that a valid detention order should reflect that the authority was aware that the detenu was already in prison under judicial custody and there was reliable material before him on the basis of which he had reason to believe that there was every possibility of the detenu being released on bail and in case of such release the detenu would indulge in prejudicial activities and in order to prevent him from indulging in any activities affecting the public order or the tranquillity of the community, it was imperative to pass an order for his preventive detention and unless the aforesaid satisfaction is recorded, the application of mind by the detaining authority cannot be proved and testing the impugned order on the aforesaid principle, the impugned order appears to suffer from vice of complete non application of mind.

Per contra learned AGA and Sri Brij Lal, learned counsel for the Union of India made their submission in support of the impugned order.

We have very carefully perused the impugned order as well as other material brought on record.

A careful reading of the grounds of detention supplied to the petitioner under Section 8 of the Act along with the detention order (Annexure-2) reveals that the same merely contains a passing reference to the fact that the petitioner who was in District Jail, Ballia on account of his being involved in case crime no. 420 of 2014 was making efforts to obtain bail. The impugned order does not contain any furhter recital to the effect that the petitioner had moved a bail application and there was every likelihood of his being released on bail and in the absence of any such satisfaction being recorded in the impugned order, recording subsequently therein that upon being released on bail, he may again indulge in criminal activities, which may be prejudicial to the public order, will not validate the impugned order.

Even for recording the satisfaction in the impugned order, that the petitioner was making efforts to obtain bail, there was no material before the detaining authority except the confidential report of Superintendent of Police, Ballia and even the aforesaid report of the Superintendent of Police dated 24.10.2014, copy whereof has been filed as Annexure-9 to the writ petition, does not refer to any material in this regard.

A Division Bench of this Court in 2013 Legal Eagle (Ald.) 2177 reported in Cheeku Badla Vs. Superintendent, District Jail, Bulandshahar and others, while examining the legal impact of the failure of the detaining authoirty to record in the order of preventive detention passed with regard to a detenu already in prison as a person under judicial custody "that there was possibility of the detenue being released on bail from said judicial custody", has held hereunder :

"Considering the submission made by the learned counsel for the petitioner and the learned A.G.A. for the State of U.P. and from the perusal of the record it appears that in the grounds of detention, it is mentioned that the petitioner is making efforts/trying to get the bail but for recording such satisfaction there was no material before the detaining authority, even the sponsored authority has not committed any error to show that the petitioner was trying or making efforts for releasing on bail, merely on the ground that the detenu was trying to release or trying for releasing on bail, is not sufficient to satisfy the detaining authority to answer that there was real possibility of releasing the detenu on bail and he shall involve in prejudicial activities after releasing on bail, this ground has been taken on the basis of information given by the Pairokar of P.S. Lalkurti to verify this information detaining authority did not summon the record by which the bail application of the petitioner was rejected by the Additional District & Sessions Judge, Court No. 18 Meerut and the application moved before the High Court, shows that the such satisfaction recorded by the detaining authority is not subjective but it is based on hearsay even on the basis of information given by the Pairokar of P.S. Lalkurti detaining authority has not recorded his satisfaction that there was real possibility of releasing of the petitioner on bail. The Supreme Court of India observed in the case of Haradhan Saha Versus State of Bengal, (1975) 3 SCC 198; AIR 1975 S.C. 2151 in its paragraph No 35 that "where the concerned person is actually in jail custody at the time when the order of detention is passed against him, and is not likely to be released for a fair long time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in the activities which would jeopardised the security of the State or the public order." The Supreme court have laid down principles as to when the such detention order can be passed, In this regard, the leading case is reported in (1991) 1 SCC 128, Kamarunnissa Vs. Union of India and another; which has been followed in the case of Veeramani Vs. State of Tamil Naduu; (2006) 2 SCC 664, TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi Vs. State through Secretary and another; JT 2003 (Suppl 2) SC 503 Union of India Vs. Paul Manickam and another. It has been held by the Supreme Court of India in paragraph 13 of Kamarunnisa case;-

" From the catena of decisions referred to above, it seems clear to us that even in the case of a person in custody a detention order can validly be passed(1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him(a) that there is real possibility of his being released on bail, and(b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in his behalf, such an order can not be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question if before a higher court."

The above mention conditions should be satisfied for the above valid detention or against the person in custody, one of the condition is that there should be real possibility of the person being released on bail."

Learned AGA and Sri Brij Lal, learned counsel for the Union of India despite making elaborate submissions failed to demonstrate that the detaining authority had recorded his satisfaction in the impugned order that the petitioner who was in prison had moved a bail application for his released and there was strong possibility of his being released on bail.

Learned counsel for the respondents have further failed to draw our attention to any material which was placed by the sponsoring authority before the detaining authority respondent no.3 for recording his satisfaction that there was every likelihood of the petitioner being released on bail and even the fleeting reference made in the impugned order that the petitioner was trying to obtain bail does not appear to be based on any material whatsoever.

For the aforesaid reasons and keeping in view the settled law on the issue, we are of the view that the impugned order cannot be sustained and is liable to be quashed.

The writ petition is allowed. The impugned order dated 28.10.2014 passed by the respondent no.3 Annexure -1 to the writ petition is hereby quashed. The petitioner shall be released forthwith if he is not wanted in any other case.

There shall however be no order as to costs.

The Registrar General of this Court is directed to communicate this order to Superintendent of Police, Ballia for necessary follow up action.

Order Date : 31.07.2015

Abhishek Sri/-