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2010 DIGILAW 646 (MP)

Chhenu @ Yunus v. State of M. P.

2010-07-02

S.K.SETH, SHANTANU KEMKAR

body2010
ORDER S.K. Seth, J. -- 1. The short question which this petition raises for our decision is whether the order of detention passed against and served on the petitioner Chhenu alias Yunus is sustainable under section 3 (2) of the National Security Act, 1980 (hereinafter called the 'Act'). The answer to this question would naturally depend upon a fair and reasonable construction of the relevant clause of the said section. 2.The District Magistrate, Ujjain, passed the detention order on the March 3, 2010 directing that the petitioner should be detained. The order recites that the District Magistrate was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. This order was served on the petitioner on March 3, 2010. The grounds of detention were served on 4.3.2010. After getting positive report from the Advisory Board, State Government passed the Order dated April 19, 2010 under section 12 of the Act confirming the detention order for a period of twelve months vide Annexure P-6. 3. At the outset, it may be stated that there is dispute about the date of arrest of detenu. According to learned counsel for petitioner the detenu was already in jail when he was served with the detention order. On the other hand learned Additional Advocate General appearing for respondents stoutly maintained that detenu was taken into custody on April 16, 2009. No attempt was made either in the reply or during the course of arguments to reconcile conflicting dates of detention. The counter affidavit does not indicate how the case of detenu was dealt with by the Advisory Board, therefore, we directed production of original record for our perusal. 4. We have gone through the original record and find that on the basis of FIR dated 21.2.2010 Crime No. 128/2010 was registered against the detenu in the Police Station Chimangunj Mandi Ujjain for offences punishable under sections 307, 327, 506/34 of the Indian Penal Code. Petitioner was granted bail by the learned Sessions Judge, Ujjain on 22.4.2010 on the ground of parity because co-accused were granted bail on 7.4.2010, as is clear from Annexure PA. Yet, not only the reply but the separate affidavit of the District Magistrate is capaciously silent on this aspect. Petitioner was granted bail by the learned Sessions Judge, Ujjain on 22.4.2010 on the ground of parity because co-accused were granted bail on 7.4.2010, as is clear from Annexure PA. Yet, not only the reply but the separate affidavit of the District Magistrate is capaciously silent on this aspect. Offences under sections 307 and 327 are non-bailable offences, therefore, in all fairness respondent ought to have disclosed the date of actual arrest of the detenu in connection with said crime. In fact in the record of the District Magistrate, we came across an application moved by the wife seeking permission to meet the detenu wherein she stated that detenu was in custody since 27.2.2010. We see no reason to disbelieve that the detenu was in custody since 27.2.2010 in the backdrop of the bail order. 5. Now the further question arises for consideration is whether a detention order is valid when detenu is already in custody? 6. Sub-section (2) of section 3 of the Act confers powers to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc. In this case, the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge in an activity prejudicial to the maintenance of public order. In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged in is likely to be repeated. This is the postulate of the section. And this undoubtedly transpires from the language employed in sub-section (2) which says that the detention order can be made with a view to, prevention the person sought to be detained from acting in any manner prejudicial to the maintenance of public order. This is the postulate of the section. And this undoubtedly transpires from the language employed in sub-section (2) which says that the detention order can be made with a view to, prevention the person sought to be detained from acting in any manner prejudicial to the maintenance of public order. Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub-section (2) of section 3, if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section. An order for preventive detention is made on the subjective satisfaction of the detaining authority. The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end of the activity by making a preventive detention order. In Rameshwar Shaw v. District Magistrate, Burdwan, AIR 1964 SC 334 , the Constitution Bench considered the question: "Can a person in jail custody be served with an order of detention whilst he is in such custody?" In this context the Bench held that as an abstract proposition of law, there may not be any doubt that section 3 (1) (a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ. It was observed thus: "Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released." 7. It was observed thus: "Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released." 7. Therefore, we are satisfied that the question as to whether in order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. 8. Same view has been reiterated in subsequent decisions of the Supreme Court (See. Sanjay Kumar Agarwal v. Union of India), (1990) 3 SCC 309 , N. Meera Rani v. Government of Tamil Nadu, (1989) 4 SCC 418 , Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 , Kamarunissa v. Union of India, AIR 1991 SC 1640 and Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1 , Veeramani v. State of Tamil Nadu, JT 1994 (1) SC 350. 9. From the catena of decisions of Supreme Court it is clear that even in the case of 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. 10. But in the instant case what we have to mainly see is whether there was awareness in the mind of the detaining authority that the detenu is in custody and that he had reason to believe that he is likely to be released. 11. In Vijay Kumar v. State of J. and K., (1982) 2 SCC 43 , at page 48, it has been held as under: "Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. In Vijay Kumar v. State of J. and K., (1982) 2 SCC 43 , at page 48, it has been held as under: "Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made." Same view has been reiterated by the Supreme Court in Merug Satyanaryana v. State of Andhra Pradesh, AIR 1982 SC 1543 on which reliance was placed by the counsel for the petitioner. 12. The impugned detention order does not give the slightest indication that the detaining authority was aware that the detenu was already in jail and yet on the material placed before him he was satisfied that a detention order ought to be made. There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail before the date on which he passed the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and therefore power under section 3 (2) of the Act is required to be exercised. The reply and affidavit of the District Magistrate does not throw any light on the vexed question whether the detaining authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order was made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. 13. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order was made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. 13. In view of the foregoing discussion we allow the writ petition and quash the detention Order dated March 3, 2010 and the subsequent confirmation Order dated April 19, 2010 and direct that the detenu Chhenu alias Yunus be released immediately from the custody if he is not required in any other cause. Order accordingly.