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2008 DIGILAW 1380 (ALL)

MONU v. JAIL SUPERINTENDENT

2008-07-21

S.P.MEHROTRA, V.M.SAHAI

body2008
JUDGMENT By the Court.—The present Habeas Corpus Petition has been filed by the petitioner under Article 226 of the Constitution of India, inter-alia, praying for quashing the impugned detention order dated 30-7-2007 (Annexure 4 to the Petition) passed by the respondent no. 2, and further, for commanding the respondents to produce the corpus of the petitioner before this Court and set him at liberty. It appears that a First Information Report was lodged by one Chandra Prakash Sharma on 11-4-2007 regarding an incident alleged to have taken place on the same day. The said First Information Report was registered as Case Crime No. 161 of 2007, under Sections 147, 148, 149 and 302 of the Indian Penal Code and Section 7 of the Criminal Law Amentment Act, Police Station Mauranipur, District Jhansi against the petitioner and other co-accused persons. The petitioner and other co-accused were arrested in connection with the said Crime Case. 2. While the petitioner was in detention in connection with the aforesaid Crime Case, the Circle Officer, Mauranipur, Jhansi submitted a Report dated 29-7-2007 to the Senior Superintendent of Police, District Jhansi recommending detention of the petitioner under the National Security Act, 1980 (in short “the N.S. Act”). Pursuant thereto, the Senior Superintendent of Police, District Jhansi made similar recommendation dated 29-7-2007 to the District Magistrate, Jhansi. 3. Thereupon, the District Magistrate, Jhansi (respondent No. 2) passed the detention order dated 30-7-2007 against the petitioner under Section 3(2) of the N.S. Act. The petitioner was supplied with the grounds of detention as per the requirements of Section 8(1) of the N.S. Act. The detention order was approved by the State Government as per the requirements of Section 3(4) of the Act. The petitioner made a representation dated 11-8-2007 to the Central Government against the said detention order dated 30-7-2007. The said representation was rejected by the Central Government by its communication dated 29/30-8-2007. The matter was referred to the Advisory Board under Section 10 of the N.S. Act. The Advisory Board gave its opinion that there was sufficient cause for the detention of the petitioner. Thereupon, the State Government passed an order dated 21-9-2007 confirming the detention order. Thereafter, the petitioner has filed the present Petition. 4. Counter Affidavits have been filed on behalf of the respondents. 5. Learned Counsel for the petitioner has stated that he does not propose to file Rejoinder Affidavits. Thereupon, the State Government passed an order dated 21-9-2007 confirming the detention order. Thereafter, the petitioner has filed the present Petition. 4. Counter Affidavits have been filed on behalf of the respondents. 5. Learned Counsel for the petitioner has stated that he does not propose to file Rejoinder Affidavits. Therefore, we have proceeded to hear the matter finally. 6. We have heard the learned Counsel for the petitioner and Sri Sudhir Mehrotra, learned A.G.A. appearing for the respondent Nos. 1, 2 and 3, and perused the record. 7. The learned Counsel for the petitioner submits that at the time when the detention order dated 30-7-2007 was passed, the petitioner was already detained in connection with the aforesaid Crime Case and, therefore, the Detaining Authority ought to have recorded its satisfaction that the petitioner was likely to be released on bail. As no such satisfaction has been recorded by the Detaining Authority, the detention order dated 30-7-2007 is illegal. 8. Reliance in this regard has been placed on the following decisions of the Apex Court : (1) Kamarunnissa v. Union of India and another, 1991 (1) SCC 128 . (2) Veeramani v. State of Tamil Nadu, JT 1994 (1) SC 350. 9. It is also submitted by the learned Counsel for the petitioner that similar detention orders under the N.S. Act were passed against other co-accused in the aforesaid Crime Case including Govindji and Pratap. Habeas Corpus Petition No. 61838 of 2007 filed by Govindji and Habeas Corpus Petition No. 61846 of 2007 filed by Pratap have been allowed by a Division Bench of this Court by an order dated 20-3-2008, and the detention orders passed against the said persons under the N.S. Act have been quashed. Sri Sudhir Mehrotra, learned A.G.A. appearing for the respondent Nos.1, 2 and 3 and Sri Taj Prakash, learned Counsel appearing for the respondent No. 4 submit that the detention order is perfectly legal and valid. We have considered the submissions made by the learned counsel for the parties. 10. In Kamarunnissa’s case (supra), their Lordships of the Supreme Court have laid down as under (Paragraph 13 of the said SCC) : “13. We have considered the submissions made by the learned counsel for the parties. 10. In Kamarunnissa’s case (supra), their Lordships of the Supreme Court have laid down as under (Paragraph 13 of the said SCC) : “13. 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 a real possiblity 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 cannot 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 it before a higher Court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention. This seems to be quite clear from the case law discussed above and there is no need to refer to the High Court decisions to which our attention was drawn since they do not hold otherwise. We, therefore, find it difficult to accept the contention of the Counsel for the petitioners that there was no valid and compelling reason for passing the impugned orders of detention because the detenus were in custody.” 11. This decision shows that a detention order can be validly passed even if a person is already in custody. However, various conditions laid down in the above decision must be fulfilled in such a case. This decision shows that a detention order can be validly passed even if a person is already in custody. However, various conditions laid down in the above decision must be fulfilled in such a case. One of the conditions is that the Detaining Authority has reason to believe on the basis of reliable material placed before him that there is a real possibility of such a person being released on bail. 12. In Veeramani’s case (supra), their Lordships of the Supreme Court have opined as under (Paragraph 6 of the said JT) : “6. From the catena of decisions of this Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody; if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down.” 13. This decision, thus, again lays down that in case detention order is passed against a person who is already in custody, the Detaining Authority must record his satisfaction that he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail. 14. A perusal of the impugned detention order dated 30-7-2007 shows that the Detaining Authority has not recorded his satisfaction that he has reason to believe that the petitioner is likely to be released on bail. In the grounds of detention, the Detaining Authority has noted that the petitioner is making efforts to get himself released on bail. However, the Detaining Authority has not recorded his satisfaction that there is likelihood of the petitioner being released on bail. Hence, the satisfaction which ought to have been recorded by the Detaining Authority before passing the detention order against a person who is in custody, has not been recorded in the impugned detention order dated 30-7-2007. 15. In view of the above, the detention order dated 30-7-2007 is illegal and is liable to be quashed. 16. The detention order dated 30-7-2007 under the N.S. Act is accordingly quashed. 17. 15. In view of the above, the detention order dated 30-7-2007 is illegal and is liable to be quashed. 16. The detention order dated 30-7-2007 under the N.S. Act is accordingly quashed. 17. The petitioner may be released unless he is wanted in some other case. 18. With these directions, the Habeas Corpus Petition is allowed.