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2012 DIGILAW 1248 (PAT)

Katiman Yadav v. State of Bihar

2012-09-05

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
ORDER Heard counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:— “I. For issuance of writ of Certiorari thereby quashing and setting aside the order of preventive detention as contained in memo no. 408 dated 27.3.2012 in Case No. 4/2011-12 passed by the respondent no.4 in purported exercise of power under Section 12(2) of the Bihar Control of Crimes Act, 1981 thereby ordering for detention of the petitioner for maintaining public order and further for quashing and setting aside the order as contained in memo no. 3127 dated 4.4.2012 passed under the seal and signature of respondent no. 2 whereby the said respondent has been pleased to seek approval from Advisory Board of the Hon’ble High Court, Patna of the detention order dated 27.3.2012 and further for quashing and setting aside the order bearing memo no. 3688 dated 2.5.2012 passed under the seal and signature of respondent no.2 approving the detention order for 12 months in one stretch in violation of the proviso to Section 12(2) of the Act. II. For consequently issuance of writ of Habeas Corpus directing the respondents to release the petitioner from illegal detention being the same to be void ab initio.” 3. The facts giving rise to the present writ application lie in a very narrow compass. The petitioner while he was in jail custody in connection with some of the criminal cases, he was served with a show cause notice issued by the District Magistrate, Munger dated 15.2.2012 wherein on the basis of the recommendation sponsored by the Superintendent of Police, Munger as with regard to detaining the petitioner under the provisions of Bihar Control of Crimes Act (hereinafter referred to as ‘the Act’) he was asked to submit his show cause reply. The petitioner is said to have filed his show cause reply to the aforementioned show cause notice, whereafter the impugned order of detention had been passed by the District Magistrate, Munger on 27.3.2012 which reads as follows:— ^^fcgkj vijk/k fu;a=.k vf/kfu;e okn la0& 4/2011-2012 jkT; cuke dfVeu ;kno fcgkj vijk/k vf/kfu;e] 1981 ds rgr vknru vijk/kh dfVeu ;kno] fi0& Lo0 tkyks ;kno] lk0& flf?ka;k] Fkkuk& u;kjkeuxj] ¼lfQ;kljk½ ftyk& eqaxsj ftUgsa foi{kh dgdj funs'k fn;k tk;sxk] ds fo:) dkjZokbZ djus gsrq iqfyl vèkh{kd] eaMy dkjk] eaqxsj ds i=kad 4829@lh0vkj0] fnukad 11.11.11 ,oa vèkh{kd] eaMy dkjk] eqaxsj ds i=kad 444 eqaxsj@tsy] fnukad 25.2.12 ,oa 469] eqaxsj@tsy@fnukad 1.3.12 }kjk foi{kh dfVeu ;kno dk vkifÙk vkosnu i= dk voyksdu fd;kA iqfyl v/kh{kd ds izfrosnu ls ;g fofnr gksrk gS fd foi{kh ,d vknru vijkèkdehZ gS tks gR;k] gR;k dk iz;kl] jaxnkjh vkfn lfgr xaHkhj izd`fr ds vU; dbZ dk.Mksa esa vkjksfir ,oa uketn vfHk;qDr gSA tks dkQh fnuksa ls Qjkj FkkA Qjkjh vof/k esa vketu vius vkidks vlqjf{kr eglwl djus yxs Fks rFkk yksxksa dk Hk;eqDr gksdj viuk dk;Z lEikfnr djuk Hkh dfBu gks x;k FkkA foi{kh dk uke lqudj gh yksxksa esa vkrad dh ygj mRiUu gks tkrh gSA oÙkZeku esa ;g tsy esa gSA ¼tsy esa jgrs gq, vU;kU; ek/;eksa ls vketuksa esa Hk; dk ekgkSy iSnk fd;k tk jgk gS O;olk;h oxZ ls jaxnkjh vkfn dh ekax dh tk jgh gS½ bl vijk/kh dk tsy ls ckgj jguk tufgr ,oa yksdfgr ds n`f"Vdks.k ls csgn [krjukd gS fuEukafdr n`"Vkarksa ls mijksDr rF;ksa dh lEiqf"V gksrh gS& foi{kh dk iwoZ dk vijkf/kd bfrgkl fuEu izdkj izfrosfnr gS%& 1- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 136@03 fnukad 24.12.03 èkkjk 302/34 Hkk0na0la0 ,oa 27 vkElZ ,sDV& fnukad 24.12.2003 dks lqcg 7:30 cts dfVeu ;kno ,oa mlds lgdfeZ;ksa }kjk feydj oknh ds firk e`rd ;'koUr lko dks xksyh ekjdj gR;k dj fn;kA ?kVuk dk dkj.k ;g Fkk fd vijk/kdehZ dfVeu ;kno ds firk Lo0 tkyksa ;kno dh gR;k djhc Ms<+ nks lky igys gqbZ Fkh] ftlds uketn vfHk;qDr tsy esa Fks ftls e`rd ;'koar lko us gh iSjoh dj csy djok;k Fkk] mlh vkØks'k esa ?kVuk dks vatke fn;k x;kA vuqla/kku ,oa i;Zos{k.k ls bl dk.M dh /kkjk 302@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV ds rgr dfVeu ;kno ,oa mlds vU; lg;ksfx;ksa ds fo:) lR; gksuk ik;k x;k gS ,oa vuqla/kkuksaijkUr dfVeu ;kno ds fo:) vkjksi i= la0 118/05] fnukad 10.6.05 lefiZr fd;k x;k gSA 2- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 29@04 fnukad 22.2.04 èkkjk 323@307@504@379@34 Hkk0n0fo0 ,oa 27 vkElZ ,sDVA 3- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 145@04 fnukad 16-9-04 èkkjk 387@34 Hkk0na0la0 ,oa 27 vkElZ ,sDVA 4- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 169@04 fnukad 8.12.04 èkkjk 147@142@149@353@307 Hkk0na0la0 ,oa 27 vkElZ ,sDVA 5- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 197@04 fnukad 22-12-04 /kkjk 341@342@307@387@435@34 Hkk0na0la0 ,oa 27 vkElZ ,sDVA u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 16@05 fnukad 20-2-05 èkkjk 307@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV%& fnukad 20-2-05 dks 7%00 cts dfVeu ;kno vius vU; lg;ksfx;ksa ds lkFk fd'kksj ;kno ds lfØ; lnL; flUVq ;kno] iadt ;kno] Mkseu ;kno ij viuk viuk opZLo dk;e djus ds fy;s xksyhckjh dh ?kVuk dks vatke fn;k x;kA vuqlaèkku ,oa i;Zos{k.k ls ;g dk.M /kkjk& 307@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV ds rgr dfVeu ;kno ,oa vU; ds fo:) lR; gksuk ik;k x;k gS ,oa vuqlaèkkuksijkUr dfVeu ;kno ds fo:) vkjksi i= la[;k 105@05] fnukad 30.6.05 lefiZr fd;k x;k gSA 6- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 82@06 fnukad 11.8.06 èkkjk 147@148@149@323@324@325@307@ 386 Hkk0na0la0 ,oa 27 vkElZ ,sDVA 7- u;kjkeuxj ¼lfQ;kljk; vks0ih0½ Fkkuk dk.M la0& 07@10 fnukad 17.1.10 èkkjk 302@379@34 Hkk0na0la0 ,oa 27 vkElZ ,sDVA vk/kkj gky esa foi{kh dh vkijkf/kd xfrfof/k;k¡ fuEu izdkj izfrosfnr gaS%& 1- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 156@08 fnukad 1-10-08 èkkjk 307@34 Hkk0na0la0 ,o 27 vkElZ ,sDV%& fnukad 1-10-08 dks 7%00 cts bl dk.M ds oknh vius ljcsVk ,oa vU; xzkeh.k ds lkFk ?kj okil vk jgs Fks fd ?kVuk LFky ij dfVeu ;kno ,oa muds lg;ksxh }kjk tku ekjus dh fu;r ls va/kk/kqa/k Qk;fjax dj fn;k x;k] ftlesa fdlh izdkj cky&cky cp x;sA vuqla/kku ,oa i;Zos{k.k ls ;g dk.M èkkjk 307@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV ds rgr dfVeu ;kno ,oa vU; lgdehZ ds fo:) lR; gksuk ik;k x;k gS ,oa vuqla/kkuksijkUr dfVeu ;kno ds fo:) vkjksi i= la0 05@09 fnukad 29-1-09 lefiZr fd;k x;k gSA 2- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 167@08 fnukad 24-10-08 èkkjk 147@148@149@324@307 Hkk0na0la0 ,oa 27 vkElZ ,sDV & fnukad 23.10.08 dks 5%30 cts bl dk.M esa t[eh iVsy Hkkjrh] dey u;u dey mQZ ckcw lkgsc ds HkV~Bk ds dk;kZy; ds lkeus Fks fd ,dk,d dq[;kr vijk/k dehZ dfVeu ;kno vius vU; lg;ksfx;ksa ds lkFk j[ks gfFk;kj ysdj vk;s vkSj va/kkèkqaèk xksyhckjh djus yxsA ftlls iVsy Hkkjrh cqjh rjg ls t[eh gks x;sA vuqla/kku ,oa i;Zos{k.k ls bl dk.M dh /kkjk 341@323@307@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV ds rgr dfVeu ;kno ,oa mlds vU; lg;ksxh ds fo:) lR; gksuk ik;k x;k gS ,oa vuqlaèkkuksijkUr dfVeu ;kno dks Qjkj fn[kkrs gq, vkjksi i= la0 26@09] fnukad 28-2-09 lefiZr fd;k x;k gSA 3- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 185@08 fnukad 30-11-08 èkkjk 302@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV%& fnukad 30-11-08 dks 4%00 cts la/;k cknuh ds ifr laVq ;kno cfg;kj ls cVkbZnkjh ij fy;s x;s [ksr esa yxs xsgw¡ ds Qly dk iVou dj jgs Fks fd ,dk,d dq[;kr vijkèkdehZ dfVeu ;kno vius vU; lg;ksfx;ksa ds lkFk gjcs gfFk;kj ls yS'k gksdj vk;s vkSj va/kk/kqa/k tku ekjus ds fu;r ls xksyhckjh djus yxs] ftlls laVq ;kno dh e`R;q ?kVuk LFky ij gks x;hA vijkf/k;ksa }kjk opZLo dh yM+kbZ dks ysdj ?kVuk dks vatke fn;k x;k gSA vuqla/kku ,oa i;Zos{k.k ls ;g dk.M /kkjk 302@34 Hkk0na0la0 ,oa 27 vkElZ ,sDV ds rgr dfVeu ;kno ,oa mlds lgdehZ ds fo:) lR; gksuk ik;k x;k gS ,oa vuqla/kkuksijkUr dfVeu ;kno dks Qjkj fn[kkrs gq, vkjksi i= lefiZr fd;k x;k gSA 4- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 23@10 fnukad 27-2-10 èkkjk 457@380@387@34 Hkk0na0la0%& fnukad 21-2-10 dks vijk/kdehZ dfVeu ;kno vius vU; lg;ksxh ds lkFk oknh xaxk lkg ds ?kj ij tkdj tcjnLrh njoktk [kksyokdj jaxnkjh esa Ms<+ yk[k :i;k dk ek¡x fd;k Fkk rFkk ugha nsus ij xkyh&xykst dj tku ls ekjus dh /kedh ns jgs Fks rFkk oknh dks eksckbZy la0& 9162417902 nsrs gq, bl ij ckr djus ds fy;s oknh xaxk lkg ij nokc ns jgs gSaA fnukad 25-2-10 dks Hkh dfVeu ;kno ,oa muds lgdehZ }kjk oknh xaxk lkg ds Hkrhtk ds ek/;e ls muds ?kj dk njoktk [kksyokdj vkX;s;kL= dk Hk; fn[kkdj Ms<+ yk[k :i;s jaxnkjh Lo:i ek¡xkA vijkfèk;ksa ds Mj ls oknh xaxk lkg vius ?kj dk njoktk can dj vius ifjokj ds vU; lnL;ksa ds lkFk Hkkxdj eqaxsj fLFkr vius llqjky pys x;s FksA fnukad 26@27-2-10 dh jkf= djhc 2%00 cts oknh xaxk lkg dks lwpuk feyh dh muds ?kj dk njoktk [kqyk gS] ftl ij vxys fnu oknh xaxk lkg vius ifjokj ds vU; lnL;ksa ds lkFk vius ?kj vk;s rks vius ?kj dk njoktk [kqyk gqvk vkSj vanj fNVduh VqVk gqvk rFkk ?kj ls lkjk lkeku xk;c ik;sA dfVeu ;kno ,oa muds lgdfeZ;ksa }kjk jaxnkjh ugha nsus ds dkj.k gh oknh ds ?kj dk rkyk rksM+dj lkjk lkeku xk;c dj ys x;sA vuqla/kku ,oa i;Zos{k.k ds Øe esa bl dk.M dks /kkjk& 457@380@387@34 Hkk0na0la0 ds rgr izk0 uketn vfHk;qDr dfVeu ;kno ,oa mlds lgdfeZ;ksa ds fo:) lR; gksuk ik;k x;k gS ,oa vuqla/kkuksijkUr dfVeu ;kno ds fo:) vkjksi i= la0 101@10] fnukad 10-10-10 lefiZr fd;k x;k gSA 5- u;kjkeuxj ¼lfQ;kljk;½ Fkkuk dk.M la0 36@10 fnukad 21-3-10 èkkjk 307@34 Hkk0na0la0] 27 vkElZ ,sDV ,oa 3@4 fo0 ink0 vf/k0%& fnukad 20-3-10 dh jkf= 10%00 cts oknh t;'kadj izlkn us vius ?kj ds cxy esa lM+d ij ce QVus dk vkokt lqusA ftl ij oknh vius Nr ij x;s fd vpkud oknh ds ?kj ij vaèkk/kqu Qk;fjax gksus yxkA oknh t;'kadj izlkn us vius ?kj ij yxs lkSj mtkZ ds jks'kuh esa ns[kk fd dqN dq[;kr vijkèkdehZ dfVeu ;kno vius vU; lgdfeZ;ksa ds lkFk vXus;kL= ls tku ekjus dh fu;r ls xksyh Qk;j djus yxsA ftl ij oknh }kjk vkRej{kkFkZ vius ykbZlsalh jkbQy ls tokch Qk;fjax fd;k x;k rks iqfyl vkrs ns[k oknh dks tku ls ekjus dks /kedh nsrs gq, Hkkx x;sA vuqla/kku ,oa i;Zos{k.k ls bl dk.M dh /kkjk& 307@34 Hkk0na0la0 27 vkElZ ,sDV ,oa 3@4@5 oh0 ink0 vf/k0 ds rgr izk0 uketn vfHk0 dfVeu ;kno ,oa mlds vU; lgdehZ ds fo:) lR; gksuk ik;kA vuqla/kkuksijkUr dfVeu ;kno ds fo:) vkjksi i= la0& 103@10] fnukad 15-10-10 lefiZr fd;k x;k gSA foi{kh dks iqfyl v/kh{kd] eaqxsj ds i=kad 2829@lh0vkj0] fnukad 11.11.11 }kjk yxk;s x;s vkjksi esa layXu dkxtkrksa ds lkFk Kkikad 210 fnukad 15-2-12 }kjk vkifÙk nkf[ky djus dk uksfVl tkjh fd;k x;kA ftlds Øe esa foi{kh }kjk iqfyl inkfèkdkjh }kjk yxk;s x;s vkjksiksa ds Øe esa vius vkifÙk vkosnu esa mYys[k fd;k x;k gS fd u;kjkeuxj Fkkuk dk.M la0& 156@08] 167@08] 36@10 esa tekur feyk gqvk gSA u;kjkeuxj Fkkuk dk.M la0& 185@08 ds eqdnek esa tsy esa gw¡A foi{kh }kjk lefiZr vkosnu esa iqfyl izfrosnu esa mYysf[kr vk/kkjksa ij lE;d tokc ugha fn;k x;k gSA vr% mDr dkj.k i`PNk dks vLohd`r fd;k tkrk gSA iqfyl v/kh{kd] eqaxsj ds izfrosnu ,oa dfVeu ;kno dh vijkf/kd d`R; rFkk vlkekftd xfrfof/k;ksa dks /;ku esa j[krs gq, esjk lek/kku gks x;k gS fd ;fn mUgsa 'kh?kz NksM+ fn;k x;k rks os oSls dk;Z djsaxsa tks yksd O;oLFkk ij izfrdwy izHkko MkysaxsA blfy, fcgkj vijk/k fu;a=.k vfèkfu;e] 1981] ¼fcgkj vf/kfu;e 7@81½ dh /kkjk 12 dh mi /kkjk ¼2½ ds lkFk fcgkj ljdkj x`g ¼vkj{kh½ foHkkx dh vfèklwpuk la0 9941] fnukad 19-12-11 }kjk mDr dfVeu ;kno] fi0& Lo0 tkyks ;kno] lk0& flf/ka;k] Fkkuk& u;kjkeuxj] ¼lfQ;kljk;½ ftyk& eqaxsj dks fu:) fd;k tk;A mUgsa eaMy dkjk] eaqxsj esa fu:) j[kk tk;sxkA bl vkns'k dh izfr iqfyl v/kh{kd] eqaxsj@dkjk v/kh{kd] eqaxsj@foi{kh dfVeu ;kno dks HkstsaA foi{kh pkgsa rks utjcanh vkns'k ds fo:) vH;kosnu dj ldrs gSaA bl fu:) vkns'k dh izfr] iqfyl vèkh{kd ls izkIr izfrosnu dh pkj&pkj izfr;ksa ds lkFk jkT; ljdkj dks lEiqf"V gsrq Hkst nh tk;A ys[kkfir ,oa la'kksf/krA g0@& vLi"V g0@& vLi"V ftyk n.Mkf/kdkjh] ftyk n.Mkf/kdkjh] eqaxsjA eqaxsjA** (Underlining for emphasis) 4. It has to be also kept in mind that after the said order of detention was served on the petitioner in jail the State Government had approved it and the case of the petitioner was thereafter referred to the Advisory Board and after the Advisory Board had also concurred with the proposal, the order of detention passed against the petitioner was confirmed in terms of Section 21 of the Act leading to issuance of the impugned order dated 2.5.2012 for detaining the petitioner upto 26.3.2013. This writ application has been filed thereafter on 22.8.2012 assailing the order of detention dated 27.3.2012 and the order of confirmation dated 2.5.2012. 5. Mr. Vindhyakeshri Kumar, learned Senior counsel appearing on behalf of the petitioner, has raised only two issues, namely:— (i) that in terms of the judgment of this Court in the case of Binod Yadav vs. the State of Bihar & Ors., reported in 2007(Suppl) PLJR 936, as the District Magistrate being the detaining authority had not indicated in the order as with regard to filing of a representation by the petitioner, the order of detention must be held to be bad. (ii) There is a complete lack of application of mind by the District Magistrate while passing the impugned order of detention, inasmuch:— (a) There is nothing to show that the District Magistrate even after being made aware that the petitioner was in judicial custody and confined in jail in connection with substantive criminal case(s) his detention was necessary under the Act as there was a possibility of his being released either on bail or by acquittal in those criminal cases and on being so released he would indulge into pre-judicial activity affecting public order. (b) Most of the criminal cases referred to as criminal antecedent having ended in either acquittal or discharge of the petitioner, the subjective satisfaction recorded by the District Magistrate while passing the impugned order of detention would amount to mechanical application of his mind virtually acceding to the whims and fancies of the sponsoring authority, namely, Superintendent of Police, Munger. 6. Learned Senior counsel for supporting himself has relied on a recent judgment of the Apex Court in the case of Rekha Vs. State of Tamil Nadu Tr. Sec. to Govt. & Anr., reported in 2011(3) BBCJ 289 (S.C.). 7. 6. Learned Senior counsel for supporting himself has relied on a recent judgment of the Apex Court in the case of Rekha Vs. State of Tamil Nadu Tr. Sec. to Govt. & Anr., reported in 2011(3) BBCJ 289 (S.C.). 7. Per contra, learned counsel for the State with the help of his counter affidavit while supporting the impugned order of detention passed against the petitioner has submitted that first of all it was not correct to say that the petitioner was not afforded an opportunity of filing representation to the order of detention passed by the District Magistrate, Munger and as such, the reliance placed by the learned counsel for the petitioner on the judgment of the Division Bench of this Court in the case of Binod Yadav (supra) is wholly misplaced. He has further submitted that the subjective satisfaction recorded by the District Magistrate based on proven track of record of criminal cases against the petitioner and the same would require no interference by this Court. In this regard he has placed reliance on the judgment of the Apex Court in the case of Smt. Asha Keshavrao Bhosale Vs. Union of India & Anr., reported in AIR 1986 S.C. 283 . 8. There will be no difficulty in accepting the submission of the learned counsel for the State and thus, also rejecting the submission of the learned counsel for the petitioner that the order of detention is not vitiated on account of non-compliance of the direction given by the Division Bench of this Court in the case of Binod Yadav (supra) as with regard to affording of an opportunity of filing a representation while passing the order of detention. From the quoted and underlined portion of the detention order it is absolutely clear that the District Magistrate, Munger while passing the order of detention had given an opportunity to the petitioner to file his representation against the detention order. Thus, the first submission of the learned counsel for the petitioner must be and is hereby rejected. 9. There is, however, considerable force in the second submission of the learned counsel for the petitioner. The petitioner was in jail custody when the order of detention was passed. Thus, the first submission of the learned counsel for the petitioner must be and is hereby rejected. 9. There is, however, considerable force in the second submission of the learned counsel for the petitioner. The petitioner was in jail custody when the order of detention was passed. There is no difficulty in upholding an order of detention passed against the person who is in jail but then such detention order passed against a person continuing in custody has to record a clear satisfaction to the effect that the detaining authority is not only aware of the fact of detenu being actually in jail custody but has also a reason to believe on the basis of reliable material that there is a possibility of his being released either on bail or by acquittal and after being so released he would in all probability indulge in pre-judicial activity affecting public order and thus the necessity of passing the detention order to prevent him from so doing. 10. In the present case from the order of detention and especially its underlined portion as quoted above it would be clear that after giving details of the criminal cases the District Magistrate had merely recorded the following reason for passing the order of detention:— ^^iqfyl v/kh{kd] eqaxsj ds izfrosnu ,oa dfVeu ;kno dh vijkf/kd d`R; rFkk vlkekftd xfrfof/k;ksa dks /;ku esa j[krs gq, esjk lek/kku gks x;k gS fd ;fn mUgsa 'kh?kz NksM+ fn;k x;k rks os oSls dk;Z djsaxsa tks yksd O;oLFkk ij izfrdwy izHkko MkysaxsA** 11. As a matter of fact from the reading of the entire detention order it does not appear that the District Magistrate was even aware as to whether any bail application had already been filed by the petitioner for his being released from custody or that there was likelihood of the petitioner being released on bail or acquitted in such criminal cases in which he was already languishing in jail. As a matter of fact even when the petitioner had in his show cause reply made it clear that he was continuing in jail in connection with only one criminal case, namely, Nayaramnagar P.S.Case No. 185/2008, nothing was recorded even with regard to that very case that the petitioner had already either filed a bail petition and/or was likely to be released on bail or by way acquittal in that case. Thus, the order of detention of the petitioner being one while the petitioner was in jail in connection with a criminal case clearly lacks the desired satisfaction. From the averments made in the writ petition it is evident that the petitioner had not even filed a bail petition as on 2.3.2012 in connection with Nayaramnagar P.S. Case No. 85 of 2008 in which actually the trial itself was at advanced stage and which ended in acquittal on 19.5.2012. 12. Law in this regard has already been settled by the Constitution Bench of the Apex Court in the case of Rameshwar Shaw Vs. District Magistrate, Burdwan, reported in AIR 1964 SC 334 , wherein it was held as follows:— “[12] 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 and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. … Therefore, we are satisfied that the question as to whether an 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.” 13. The same view was reiterated by the Supreme Court in the case of Binod Singh Vs. District Magistrate, Dhanbad, reported in (1986)4 SCC 416 , wherein it was held as follows:— “7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedom of our citizens.” (underlining for emphasis) 14. The Supreme Court again in the case of Kamarunnissa Vs. Union of India, reported in (1991)1 SCC 128 , while dealing with this very aspect of a person who is in jail had laid down a law in a more elaborate manner wherein it was held as follows:— “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 possibility 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.” 15. 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.” 15. The aforesaid view remains still a good law as they have been followed without any exception by the Apex Court also in the long line of cases including Rajesh Gulati Vs. Govt. of NCT of Delhi & Anr., reported in (2002)7 SCC 129 , K. Varadharaj Vs. State of T.N., reported in (2002)6 SCC 735 , Amritlal Vs. Union Govt., reported in (2001)1 SCC 341 , T.V.Sravanan @ S.A.R.Prasana Venkatachaariar Chaturvei Vs. State through Secretary and Anr., reported in (2006)2 SCC 664 and even recently in the case of Rekha (supra), wherein it was held that :— “if no bail application was pending and the detenu was already in fact in jail in a criminal case the detention order under the Preventive Detention Law is illegal”. 16. The Apex Court in fact in the aforesaid case of Rekha (supra) had also clarified that there has to be a full detail about the possibility of bail being granted and in this regard it was held as follows:— “11. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of orders, the bail application number, whether the bail order was passed in respect of co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail orders in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored.” 17. However, the respondent authority should have given details about the alleged bail orders in similar cases, which has not been done in the present case. A mere ipse dixit statement in the ground of detention cannot sustain the detention order and has to be ignored.” 17. Judged in this background when we find that there is absolutely nothing in the order of detention to show that the petitioner had even filed a bail application in connection with the criminal case in which he was in custody, the mere ipse dixit of the District Magistrate that if the petitioner was released at an early date he would indulge into activities adversely affecting the public order would only go to show his mechanical application of mind vitiating the order of detention. 18. The reliance placed by the learned counsel for the State on the judgment of the Apex Court in the case of Smt. Asha Keshavrao Bhosale (supra) will have no application to the facts of this case, inasmuch as whatever was observed in paragraph 10 thereof as with regard to satisfaction under prevention detention law being subjective and thus, not open for the court to test the adequacy of the material for which such satisfaction is based. That infact only refers to scope of judicial review of the grounds of detention. Here, however, the question is not the ground of detention but the satisfaction recorded by the District Magistrate as with regard to a person who is in jail custody and has to be detained under the Preventive Detention Law. The detention order in such cases, therefore, must fulfil the three tests laid down by the Apex Court in the case of Kamarunnissa (supra), wherein it has been laid down that if the three tests are fulfilled in the satisfaction recorded by the detaining authority such an order cannot be struck down on the ground of detention order having been passed against a person who is continuing in jail custody. 19. There is yet another aspect which would vitiate the impugned order of detention. As noted above, the petitioner was sought to be detained on the basis of recommendation of the Superintendent of Police, who had cited seven criminal cases as the antecedent of the petitioner and five cases as ground for detention. 19. There is yet another aspect which would vitiate the impugned order of detention. As noted above, the petitioner was sought to be detained on the basis of recommendation of the Superintendent of Police, who had cited seven criminal cases as the antecedent of the petitioner and five cases as ground for detention. The petitioner in fact in the show cause reply had already clarified that in all the seven cases referred to as the criminal antecedent he had either been acquitted or had been discharged by the competent court of law and was also on bail in connection with three out of five cases which were made immediate grounds of his detention while in one of them he was already acquitted and was continuing in jail in connection with only one case. This aspect of the matter has been clearly asserted by him by giving details of those seven cases in paragraph 12 of the writ application which has not been controverted in the counter affidavit filed by the State. Paragraph 12 of the writ application for the sake of clarity is quoted hereinbelow:— “12. That it is stated that the cases which have been made basis of the detention of the petitioner, in most of the cases the petitioner has either been discharged/ acquitted or is on bail and thus no case was made out for his detention on public interest. Petitioner craves leave of this Hon’ble Court to give a detailed chart herein below of the status of each case alleged against him in the detention order: I. Nayaramnagar (Saphiasrai) P.S.Case No. 136/03 petitioner has been acquitted by the judgment and order dated 20.6.2007 by the Court of Addl. Sessions Judge, F.T.C.6, Munger. II. Nayaramnagar (Saphiasrai) P.S.Case No. 29 of 2004 case being lodged on mistaken fact, final form submitted, no protest petition by informant as such case dropped by Lok Adalat vide order dated 24.6.2006. III. Nayaramnagar (Saphiasrai) P.S.Case No. 145/04 petitioner discharged in lack of sufficient evidence vide judgment and order dated 2.3.2007 passed by Sri Prabhat Kumar Sinha, J.M., 1st class, Munger. IV. Nayaramnagar (Saphiasrai) P.S.Case No. 169/04 petitioner acquitted of all the charges vide judgment and order dated 19.12.2007 passed by Addl. Sessions Judge, F.T.C.6, Munger. V. Nayaramnagar (Saphiasrai) P.S.Case No. 197/04 petitioner acquitted of all the charges vide judgment and order dated 15.3.2011 by Addl. Sessions Judge, F.T.C.5, Munger. VI. IV. Nayaramnagar (Saphiasrai) P.S.Case No. 169/04 petitioner acquitted of all the charges vide judgment and order dated 19.12.2007 passed by Addl. Sessions Judge, F.T.C.6, Munger. V. Nayaramnagar (Saphiasrai) P.S.Case No. 197/04 petitioner acquitted of all the charges vide judgment and order dated 15.3.2011 by Addl. Sessions Judge, F.T.C.5, Munger. VI. Nayaramnagar (Saphiasrai) P.S.Case No. 16/05 petitioner acquitted giving benefits of doubt vide judgment and order dated 22.3.2007 by Addl. Sessions Judge, F.T.C.6, Munger. VII. Nayaramnagar (Saphiasrai O.P.) P.S.Case No. 82/06 petitioner acquitted giving benefit of doubt vide judgment and order dated 13.12.2000 by Addl. Sessions Judge, F.T.C.5, Munger. VIII. Nayaramnagar (Saphiasrai O.P.) P.S.Case No. 156/2008 petitioner released on bail. IX. Nayaramnagar (Saphiasrai O.P.) P.S.Case No. 167/2008 petitioner released on bail. X. Nayaramnagar (Saphiasrai O.P.) P.S.Case No. 185/2008 petitioner acquitted of all charges vide judgment and order dated 19.5.2012 by Addl. Sessions Judge, Munger. XI. Nayaramnagar (Saphiasrai) P.S.Case No. 323/10 petitioner acquitted of charges vide judgment and order dated 19.8.2011 by Shri Rakesh Kumar, J.M., 1st Class, Munger. XII. Nayaramnagar (Saphiasrai) P.S.Case No. 36/10 petitioner released on bail.” 20. Thus what makes the order of detention still vulnerable is that even out of those five criminal cases which were made immediate ground for detention of the petitioner had also included Nayaramnagar P.S.Case No. 323/2010 in which he had already been acquitted by a judgment dated 19.8.2011 passed by the Judicial Magistrate, 1st Class, Munger. Therefore, once a show cause notice was issued to the petitioner before passing of the order of detention, and the petitioner had explained about his acquittal or bail in the aforesaid case as also with regard to all the criminal cases cited as grounds for his detention, the District Magistrate while passing the impugned order of detention in view of his also taking into consideration the show cause reply filed by the petitioner was required to record his satisfaction that irrespective of acquittal or discharge of the petitioner from the connected cases, his unabated continued criminal activities in other four cases were still evidence of his being a threat to public order and that he was going to be released from jail at an early date on account of his being given in bail in three cased and likelihood of his acquittal in the case in which he was in jail. That, however, has not been done and the District Magistrate, Munger while passing the order of detention has mechanically reproduced the details of the cases as was furnished to him in the recommendation made to him by the Sponsoring authority, namely, Superintendent of Police, Munger. It is this aspect of the matter which was considered by a Division Bench in a judgment dated 6.8.2010 in Cr.W.J.C.No. 544/2010 (Arbind Choudhary Vs. State of Bihar & Ors.), wherein it was held as follows:— “18. Long list of cases included in the criminal history and the four cases grounds for the purposes of detention being non-existent, so it cannot be held that the petitioner is repeatedly indulging himself in criminal activities. Since all these long list of cases, detention order is being itself an example of total non-application of mind and the order passed under Section 12(2) and its confirmation under Section 21(2) and 22 of the Act are fit to be quashed. 20. This is a case in which the Detaining Authority has not applied his independent mind while passing the detention order. He has been guided by the recommendation of the Sponsoring authority but the mandate of the legislature for passing an order of detention is that the Detaining Authority will pass an order of detention, on being satisfied of this fact at the persons who is going to be detained (sic). Since this aspect is completely missing in the present case, the order of detention passed by the District Magistrate, Begusarai dated 26.12.2009 contained in letter no. 1810 and the order of affirmation passed by the State Government dated 19.2.2010 as contained in letter no. 1411, are fit to be quashed.” 21. Before parting with this Court in all fairness to the learned counsel for the State must notice to his one of the submission wherein he was quite emphatic that since the order of detention was passed after following the principles of natural justice by way of issuance of a show cause notice to the petitioner and considering the show cause reply given by him, the resultant detention order could not be made subject matter of judicial review as it would amount to questioning the subjective satisfaction of the detaining authority. The aforesaid submission, however, has been only noted for its being rejected. The aforesaid submission, however, has been only noted for its being rejected. First of all it has to be understood that there is no provision under the Act which actually requires a District Magistrate to issue a show cause notice prior to passing of the order of detention under Section 12 of the Act. Therefore, if the District Magistrate issues such a show cause notice and passes an order after considering the show cause reply of detenu, such detention order cannot become immune from the scope of judicial review specially when the safeguards and requirement of natural justice is also not borne out from the reading of the resultant order passed on the basis of such show cause notice and reply filed thereon. The adhere principle of natural justice is not an empty formality inasmuch necessary concomitant of the principle of natural justice that there must be an application of mind on the show cause filed in response to a notice while passing the order is essentially a fundamental requirement to achieve the very object of the principle of audi al tem partem. Reference in this connection may be usefully made to the judgment of Apex Court in the case of Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India reported in 1976 SC 1785 and S.N. Mukherjee Vs. Union of India reported in 1990 SC 1984. 22. The additional opportunity given to a detenu by the District Magistrate before passing of the order of detention may be helpful to him in capacity of detaining authority for arriving at his subjective satisfaction but then once such an order of detention is assailed before the Court it has to be tested on the parameter of Article 14 and Article 22 of the Constitution of India read with the provisions of the Act. The satisfaction of the detaining authority is not a subjective one based on the detaining authority’s emotions, beliefs or prejudices. There must be a infact real likelihood of the person being able to indulge in such activities and the inference of such likelihood being drawn must be borne out from the objective data, as was held by the Apex Court in the case of Rajesh Gulati (supra). 23. There must be a infact real likelihood of the person being able to indulge in such activities and the inference of such likelihood being drawn must be borne out from the objective data, as was held by the Apex Court in the case of Rajesh Gulati (supra). 23. Thus, having given our anxious consideration to the materials on record as also the submissions of the parties we are of the opinion that the order of detention against the petitioner is bad both on fact and in law and is fit to be set aside. 24. In the result, this writ application is allowed and the impugned order of detention dated 27.3.2012 passed by the District Magistrate, Munger, as contained in Annexure 4, and its confirmatory order passed by the State Government dated 2.5.2012, as contained in Annexure 6, are quashed. Consequently, the petitioner would be entitled for his release forthwith unless he is wanted in any other case.