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2005 DIGILAW 819 (ALL)

IQBAL v. STATE OF U P

2005-04-29

S.RAFAT ALAM, VIKRAM NATH

body2005
By the Court.-In the instant writ petition the sole petitioner has prayed for quashing of the order of the District Magistrate, Mordabad dated 1-5-2004 detaining him under the provisions contained in Section 3 (2) of the National Security Act, 1980 (for short the Act ). 2. Counter and rejoinder-affidavits have been exchanged between the parties and are on record. 3. We have heard Sri Mohit Singh, learned Counsel for the petitioner, Sri Arvind Tripathi, learned Additional Government Advocate for the State-respondents and learned Additional Standing Counsel for the Union of India-respondent No. 5. 4. It appears that the petitioner was involved in the commission of murder of Mohd. Gufran and Rakesh Kumar Agarwal for which an F. I. R. was registered as Case Crime No. 48 of 2004, under Section 302 I. P. C. , Police Station Galshahid, District Mordabad. It has been alleged in the grounds of detention that the petitioner alongwith his associates having criminal antecedent committed murder of Mohd. Gufran on 21-1-2004 at about 8. 30 p. m. in Lane No. 2 of Mohalla Asalatpur on Ismail road. Thereafter, they rushed towards the main road and tried to stop the Maruti Car No. DL 2c/1412. However, when the driver did not stop the vehicle, they started firing which resulted into the death of Rakesh Kumar Agarwal. It is also alleged that on account of indiscriminate firing the car lost its control and collided with a pole. It is further alleged that on account of injury caused the driver of the vehicle Rakesh Kumar Agarwal was seriously injured and he ultimately died. Thereafter, on the report of the sponsoring authority, impugned order of detention was passed. 5. Learned Counsel for the petitioner vehemently argued that the alleged incident had taken place on 21-1-2004 whereas the impugned order of detention was passed on 1-5-2004 after long lapse of time but without there being any justification for passing the order after such delay. It is further submitted that no explanation has been furnished in the counter-affidavit for passing the impugned order after lapse of more than three months. Reliance has also been placed on the Division Bench judgment of this Court in the case of Waseem v. State of U. P. & Ors. , reported in 2004 (50) ACC 931. It is further submitted that no explanation has been furnished in the counter-affidavit for passing the impugned order after lapse of more than three months. Reliance has also been placed on the Division Bench judgment of this Court in the case of Waseem v. State of U. P. & Ors. , reported in 2004 (50) ACC 931. It is also contended that there was no material before the detaining authority at the time of passing of the impugned order that there was every possibility of the petitioner being released on bail and on being released he will indulge in similar activities. It is also stated that Habeas Corpus Writ Petition No. 37238 of 2004 of co- detenu Saleem v. State of U. P. & Ors. , has been allowed by this Court vide judgment and order dated 16- 12-2004. 6. On the other hand, learned Counsel for the respondents opposed the writ petition and submitted that since the petitioner was already in custody after the incident of 21-1-2004 and, therefore, there was no occasion at that point of time to pass the impugned order of detention. It is also submitted that the writ petition of co-detenu Saleem was allowed on the technical ground that his representation addressed to the Central Government was wrongly sent to the Advisory Board on account of which abnormal delay was caused in deciding the representation. 7. We have considered the submissions made on both sides. 8. We are of the view that the writ petition deserves to be allowed on the ground that the detaining authority did not record his satisfaction in the order nor in the grounds of detention that there is imminent possibility of the petitioner being released on bail in near future. Even in the report of the sponsoring authority, which is on record, no material was placed that there was every possibility of the petitioner being released on bail. 9. It is settled legal position that a person already in custody can be detained under the provisions of the Act provided the detaining authority is aware about his custody and also records his satisfaction on the material placed before him that there is every possibility of the petitioner being released on bail in near future. Reference may be made to the judgment of the Honble Supreme Court in the cases of Union of India v. Paul Manickam & Anr. Reference may be made to the judgment of the Honble Supreme Court in the cases of Union of India v. Paul Manickam & Anr. , 2003 (8) SCC 342 and Qamarunnissa v. Union of India & Ors. , 1991 (1) SCC 128 . 10. In the case in hand, admittedly the petitioner was already in jail on the date of passing of the impugned order despite that the detaining authority did not record his satisfaction about the possibility of the petitioner being released on bail in the near future nor any material has been brought on record to show that there was every chance of the petitioner being released on bail and, therefore, in the absence of such satisfaction or material on record, the order of detention is vitiated. 11. Since the writ petition deserves to be allowed on this short point alone, we need not to address on the other submissions made on behalf of the petitioner. 12. In the result, the petition succeeds and is hereby allowed. The respondents are directed to set the petitioner at liberty forthwith provided he is not required to be detained in any other case. However, there shall be no order as to costs. Petition allowed. .