Rajendra vs Union Of India And 4 Others
2017 Latest Caselaw 1100 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 40
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 13782 of 2017
 

 
Petitioner :- Rajendra
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- Anand Pati Tiwari
 
Counsel for Respondent :- G.A.,A.S.G.I.,N.D.Rai
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

The order of the Court was delivered by:-

Hon'ble Bala Krishna Narayana, J. - The arguments of this case concluded at the close of the Court hours on 24.05.2017. We then made the following order:-

"Heard Sri Anand Pati Tiwari, learned counsel for the petitioner, Sri N.D. Rai, learned counsel for the respondent no.1, Union of India and learned AGA for respondent no.2 to 5.

We will give the reasons later. But we make the operative order here and now.

The detention order is quashed. The detenu will be set at liberty forthwith."

Here are the reasons:- 

By means of this Habeas Corpus Writ Petition, the petitioner Rajendra has made a prayer to issue a writ, order or direction in the nature of Habeas Corpus quashing the detention order dated 20.12.2016 (Annexure No.1) passed by respondent no.3, District Magistrate, Auraiya in exercise of his power u/s 3 (2) of the National Security Act, 1980 and to set the petitioner Rajendra at liberty.

From the perusal of the pleadings of the parties as well as the ground of detention supplied to the petitioner along with the detention order, it transpires that Case Crime No. 407 of 2016 under Sections 379, 285, 427, 420, 467, 468, 471 I.P.C. and Section 15 (2) of the Petroleum and Minerals Pipeline (Acquisition of Right of User in land) Act, 1962 and Section 3/4 of the Prevention of Damages to Public Property Act, 1984, was registered at P.S.- Dibiyapur, District- Auraiya against petitioner and other co-accused. The F.I.R. was lodged by Sri Ankit Sati, Operation Officer, H.P.C.L. In the F.I.R., it was alleged that the petitioner along with his companions Surjeet alias Bhola, Jitendra Yadav, Shaloo Thakur, Sonu Sharma, Pintoo Singh, Amit Botham, Gaurav alias Billu Yadav, Avadh Bihari, Gudda, Dalveer and driver of the tanker whose name was not known, had damaged R.K.P.L. (Revadi-Kanpur) diesel supply pipeline of Hindustan Petroleum Corporation Ltd. at point 367.2 km in post- Harchandpur of village- Ramgarh by drilling a hole in it  with the aid of tools and equipments and stolen diesel. Their act had also resulted in wastage of huge quantity of diesel which had spilled all over the road. The petitioner was arrested on account of his being accused in the aforesaid case and sent to jail. Respondent no.3 on finding the aforesaid activity of the petitioner prejudicial to the maintenance of supplies and services essential to the community passed the impugned detention order which was served upon the petitioner while he was in District Jail- Auraiya on account of being accused in Case Crime No. 407 of 2016. The grounds of detention further reveal that while the petitioner was in jail in connection with Case Crime No. 407 of 2016, he was booked in Case Crime No. 474 of 2016 u/s 2/3 of The Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

It has been submitted by learned counsel for the petitioner that since the impugned order of preventive detention was passed by respondent no. 3 against the petitioner while he was in prison as a person under judicial custody, it was incumbent upon the detaining authority respondent no.3 while passing the order of detention to record therein that there was strong possibility of the detenu 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 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 for the State and Sri N.D. Rai, learned counsel for the Union of India made their submissions in support of the impugned order.

We have very carefully considered the submissions made by the learned counsel for the parties and 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-1) reveal that the same merely contains a recital that the petitioner who was in District Jail, Auraiya on account of his being involved in Case Crime No. 474 of 2016 and the bail application moved by him in the aforesaid case had been rejected by Special Judge, Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 on 08.11.2016 and he was again making efforts to obtain bail by filing Criminal Misc. Bail Application No. 41295 of 2016 on 19.11.2016 before the Hon'ble High Court. The impugned order does not contain any further recital to the effect that there was real possibility of his being released on bail and in the absence of any such satisfaction been recorded in the impugned order, recording subsequently therein that upon being released on bail, he may again indulge in activities, which may be prejudicial to the public order, will not validate the impugned order.

The Apex Court has examined the legal impact of the failure of the detaining authority to record in the order of the preventive detention passed with regard to a detenu already imprisoned as a person in the judicial custody "that there was real possibility of the detenu being released on bail from the said judicial custody" in several decisions.

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 has 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 this 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 mentioned 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."

Thus what follows is that an order of detention passed in respect of a person under judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of Kamarunnissa (supra) and one such essential condition is that authority passing the order of detention in respect of a person in custody should have reason to believe on the basis of reliable material placed before him that there is real possibility of his being released on bail. In the present case, the respondent no.3, District Magistrate, Auraiya has failed to record any such satisfaction in the impugned order.

Sri N.D. Rai, learned counsel for the Union of India and learned AGA for the State despite having made elaborate submissions before us have failed to demonstrate that the detaining authority had recorded his satisfaction in the impugned order that there was real possibility of his being released on bail or his coming out of jail.

In the absence of any such satisfaction been recorded in the impugned order by the detaining authority/ respondent no. 3, the impugned detention order which suffers from the vice of total non- application of mind cannot be held to be a valid order. 

These were the reasons upon which we quashed the order of detention.

Order Date :- 24.5.2017

KS