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2002 DIGILAW 856 (ALL)

MUMTAZ AHMAD KHAN v. STATE OF U P

2002-07-16

R.C.PANDEY, VISHNU SAHAI

body2002
VISHNU SAHAI, J. Through this writ petition preferred under Article 226 of the Constitution of India, the petitioner-detenu Mumtaj Ahmad Khan has impugned the order dated 25. 8. 2001 passed by the second respondent Mr. R. A. Prasad, District Magistrate, Sultanpur, detaining him under section 3 (3) of the National Security Act. 2. The detention order alongwith grounds of detention, which are also dated 25. 8. 2001, was served on the petitioner-detenu on 25. 8. 2001 itself and their true copies have been annexed as Annexure-l to the supplementary affidavit filed by Sayeed Ahmad (deponent in the writ petition) and petition respectively. 3. The prejudicial activities of the petitioner-detenu prompting the second respondent to issue the detention order against him are contained in the grounds of detention. A perusal of the grounds of detention would show that the impugned detention order is founded on two case crime numbers, namely, Case Crime No. 281 of 2001 under section 452/302 I. P. C. registered on 21. 7. 2001 on the basis of an F. I. R. lodged by Ram Chandra Gupta at P. S. Kudwar, district Sultanpur and Case Crime No. 282 of 2001 under section 4/25 of Arms Act registered at P. S. Kudwar district Sultanpur. 4. The details pertaining to the said case crimes are as under: We begin with Case Crime No. 281 of 2001. On 21. 7. 2001 at about 6 A. M. the detenu is alleged to have entered into the house of the informant Ram Chandra Gupta. At that time, the informants sister Nanhaka was attending to the daily chores. The detenu assaulted her with a knief, threw her on the ground, cut her neck and killed her. Thereafter, the detenu is said to have run away. As a consequence of the act of the detenu, tension between the Hindus and Muslims was generated in the village and the people of the village closed doors of their houses. The result was that the public order was adversely affected. The details relating to Case Crime No. 282 of 2001 in short are that on 22. 7. 2001 at about 8. 15 P. M. the Station House Officer incharge of Police Station, Kudwar arrested the petitioner-detenu and recovered a knife from him. 5. The result was that the public order was adversely affected. The details relating to Case Crime No. 282 of 2001 in short are that on 22. 7. 2001 at about 8. 15 P. M. the Station House Officer incharge of Police Station, Kudwar arrested the petitioner-detenu and recovered a knife from him. 5. On the basis of the aforesaid case crime numbers, the detaining authority was subjectively satisfied that in order to curb the petitioner-detenu from committing similar prejudicial activities in future, it was, imperative to detain him vide the impugned order. 6. A perusal of the grounds of detention would also show that the detaining authority has expressed therein his awareness that the detenu was in custody in Case Crime Nos. 281 of 2001 and 282 of 2001 and was trying to come out on bail in the said case Crime numbers and on 10. 8. 2001 had filed a bail application before the Chief Judicial Magistrate, Sultanpur. 7. We have heard learned Counsel for the parties. Although in this writ petition, learned Counsel for the petitioner-detenu has challenged the impugned order on a number of averments but he has restricted his challenge to the averments contained in para 15 of the petition. In the said paragraph, it has been averred that when the detaining authority passed the impugned detention order against the petitioner-detenu on 28. 8. 2001, no bail application of the petitioner was pending before any Court of law. 8. Learned Counsel for the petitioner-detenu strenuously urged that since no bail application of the detenu was pending before any Court of law, there was no necessity for the detaining authority to issue the impugned detention order against him and the said order is bad and unsustainable in law. 9. The averments contained in para 15 of the writ petition have been replied in para 14 of the return of the detaining authority (second respondent ). He has stated therein as under: As the petitioner was trying to do his level best to come out on bail and had moved an application for bail, the deponent was satisfied that in case he was released from jail, he would indulge in activities prejudicial to the maintenance of the public order and hence he issued the detention order against him. 10. 10. We have perused the averments contained in para 15 of the petition, those contained in para 14 of the return of the detaining authority and have no reservations in observing that this writ petition deserves to succeed. 11. The Supreme Court in para 19 of the off-quoted case of Dharmendra Suganchand Chelawat v. Union of India, 1990 (27) ACC 203 (SC) has observed as under: " The decisions referred to above lead to the conclusion that an order of 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 implies 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. " (Emphasis supplied) 12. A perusal of the aforesaid passage extracted from Chelawat case (supra) would show that one of the pre-requisites for issuing a detention order against a person in custody is that despite his being in detention there was compelling necessity/compelling reasons to detain him. The expression compelling reasons as is manifest from the aforesaid paragraph, means that there must be cogent material before the detaining authority on the basis of which he is satisfied that the person sought to be detained is likely to be released from the custody in near future. 13. In our view, there was no cogent material before the detaining authority on the basis of which he could have concluded that the detenu was likely to be released from custody in near future. 14. 13. In our view, there was no cogent material before the detaining authority on the basis of which he could have concluded that the detenu was likely to be released from custody in near future. 14. It is not disputed by the learned Counsel for the respondents that the bail application preferred by the detenu in Case Crime No. 281 of 2001 under section 452/302 I. P. C. of P. S. Kudwar district Sultanpur was rejected by the Chief Judicial Magistrate, Sultanpur vide his order dated 10. 8. 2001 and thereafter the detenu did not prefer any bail application in the said case crime number either in the Court of Sessions or the High Court or the Supreme Court. A perusal of the details pertaining to Case Crime No. 281 of 2001 contained in the grounds of detention to which we have adverted to earlier would show that the detenu entered into the house of the informant Ram Chandra Gupta and assaulted his sister with a knife on various parts of her body and cut her neck. 15. In our view bearing in mind the fact that the petitioner-detenu did not apply for bail after his bail application had been rejected by the Chief Judicial Magistrate, Sultanpur on 10. 8. 2001 and the brutal manner in which he inflicted fatal injuries on the deceased, it cannot be said that there was any cogent material with the detaining authority on the basis of which he could have concluded that the petitioner- detenu was likely to be released on bail in near future. 16. The expression cogent material that the detenu is likely to be released from the custody in near future as used in Chelawats case (supra) means that there should be plausible/convincing material to warrant such an inference. 17. The submission of the learned Counsel for the respondents was that since the petitioner-detenu had preferred a bail application before the Chief Judicial Magistrate Sultanpur which was rejected on 10. 8. 2001 means that there was cogent material before the detaining authority that the detenu was likely to be released on bail in near future is untenable. It is pertinent to mention that in para 14 of his return the detaining authority, excepting the aforesaid circumstance has referred to no other material. 18. 8. 2001 means that there was cogent material before the detaining authority that the detenu was likely to be released on bail in near future is untenable. It is pertinent to mention that in para 14 of his return the detaining authority, excepting the aforesaid circumstance has referred to no other material. 18. It is common knowledge that bail is hardly granted in a brutal murder wherein a single accused with a knife has inflicted fatal injuries on the person of deceased in the presence of eye-witnesses as is the case in Case Crime No. 281 of 2001, referred to above in which the detenue was involved. That being so, bearing in mind the fact that the detenu had not preferred any bail application in a Court after bail had been refused to him on 25. 8. 2001 by the Chief Judicial Magistrate, Sultanpur, it cannot be said that there was cogent material before the detaining authority on the basis of which it could be concluded that the detenu was likely to be released in near future in the said case crime. 19. For the said reasons, in our view, there was no cogent material before the detaining authority on the basis of which he could have concluded that the petitioner-detenu was likely to be released from custody in near future, in terms of Dharmendra Suganchand Chelawats case (supra) and that being so the impugned detention order cannot be sustained in law. In the result, we allow the writ petition, quash the impugned detention order and direct that the petitioner-detenu Mumtaj Ahmad Khan be released forthwith unless wanted in some other case. Petition Allowed.