Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 429 (MP)

Chhenu alias Yunus v. State of M. P.

2011-04-06

A.M.NAIK, SHANTANU KEMKAR

body2011
ORDER Shantanu Kemkar,.T. – 1. With consent, heard finally. 2. By this petition, under Article 226 of the Constitution of India, the petitioner has challenged his detention order dated 22.09.2010 (Annexure P-1) passed by the District Magistrate, Ujjain and also the order dated 2.12.2010 (Annexure P-5) passed by the State Government by which the order of detention passed by the District Magistrate, Ujjain has been confirmed. 3. On being satisfied that it is necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order the District Magistrate, Ujjain in exercise of his powers under section 3 (2) of the National Security Act, 1980 (for short. the Act) issued an order dated 22.09.2010 (Annexure P-1) detaining the petitioner for a period of one year and serving him with the grounds of detention. After receiving the report in affirmative from the Advisory Board, the State Government passed the order dated 2.12.2010 under section 12 of the Act (for short, the Act) confirming the order of petitioner's detention. 4. Undisputedly, on 22.09.2010, the date of passing of the order of detention, the petitioner was already in jail, as would be clear from the order dated 17.09.2010 (Annexure P-4) passed by Judicial Magistrate First Class, Ujjain. The said order reveals that the petitioner was in Central Jail, Bherugath since 13.09.2010 for offence under sections 302. 307, 323, 324, 341,294, 506 and 34 of Indian Penal Code in Crime No. 230 of 2010. It is also not in dispute that in regard to the said offence, the petitioner was released on bail only on 15.02.2011. Thus, admittedly, on the date of passing of the detention order, which is of 22.09.2010, the petitioner was in jail. 5. Having regard to the aforesaid undisputed position in order to seek quashment of the impugned orders, the learned counsel for the petitioner placed reliance on a Division Bench judgment of this Court in the case of petitioner himself -- Chenu alias Yunus sun of Babu Khan Double v. State of M.P and another passed in W.P. No. 5601 of 2010, decided on 5.07.2010, [ 2011(1) MPWN 50 ], and in the case of Nitin Bali v. State of M.P. and others (W.P. No. 8731 of 2010) decided by a division Bench of this Court on 8.09.2010. 6. 6. In the said orders passed by the Division Bench after considering the law laid down by the Supreme Court as to whether a person in jail custody can be served with an order of detention whilst he is in such custody, it has been held 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 and 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. 7. The Supreme Court in the case of Vijay Kumar v. State of J & K. [ (1982) 2 SCC 43 ], has held thus :- "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. May be, 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." 8. Having regard to the aforesaid, we have examined the impugned order of detention in the light of the observations made by the Supreme Court in the case of Vijay Kumar v. State of, J & K, and also in the case of Merugu Satyanarayana v. State of Andhra Pradesh ( AIR 1982 SC 1543 ) on which reliance has been placed by learned counsel for the petitioner and we find that there is no whisper in the impugned detention order giving the slightest indication that the detaining authority was aware that the detenu was already in jail and yet for compelling reason a preventive detention order needs to be made. We also find that the reply and affidavit of the District Magistrate are also silent on this aspect of the matter. In this view of the matter, the impugned orders being contrary to the law laid down by the Supreme Court in the case of Vijay Kumar v. State of J & K. (supra) and in case of Merugu Satyanarayana v. State of Andhra Pradesh (supra), the same arc liable to be quashed. 9. In the circumstances, though additional ground of insufficiency of material for passing the detention order is also raised by the petitioner but we are not inclined to go into the same since we are quashing the impugned detention order dated 22.09.2010 (Annexure P- n passed by the District Magistrate, Ujjain and also the order dated 1.12.2010 (Annexure P-5) passed by the State Government confirming the order of the District Magistrate for the reasons stated herein above. 10. We accordingly, quash the order dated 22.09.2010 (Annexure P-1) and the order dated 2.12.20 I 0 (Annexure P-5) and direct the respondents to release the detenu Chhenu alias Yunus son of Babu Khan from the custody, if he is not required in any other case. 11. The petition stands allowed.