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2012 DIGILAW 369 (MP)

Omprakash v. State of M. P.

2012-04-02

S.C.SHARMA, SHANTANU KEMKAR

body2012
ORDER Shantanu Kemkar, J. 1. With consent heard finally. This petition under Article 226 of the Constitution of India is directed against the order dated 25.09.2011 passed by the District Magistrate, Ujjain ordering for petitioner’s detention under section 3 (2) of the National Security Act, 1980 (for short the Act). 2. Although in the writ petition various grounds have been raised challenging the impugned detention order, however, during the course of the hearing learned counsel for the petitioner has urged only ground to the effect that the order of petitioner’s detention was passed when he was already in custody for an offence registered as Crime No.440/11, which is in violation of the law laid down by the Supreme Court in various cases. 3. In order to support the plea raised, learned counsel for the petitioner drawn our attention to the letter dated 20.03.2012 addressed by the Superintendent, Central Jail, Ujjain. On going through the said letter it is clear that petitioner was sent in judicial custody on 26.08.2011 on the basis of the order passed by the Chief Judicial Magistrate, Ujjain in regard to an offence registered as Crime No.440/11 under sections 294, 341 of the Indian Penal Code read with section 25/27 of the Arms Act. It is also clear from the said letter that while in custody the petitioner was served with the order of detention on 25.09.2011. 4. The aforesaid position could not be disputed by the learned panel lawyer appearing for the respondents/State. 5. Having regard to the aforesaid it is undisputed that the petitioner was in custody when the impugned detention order was passed. The impugned detention order does not give any slightest indication that the authority was satisfied or whether he has reason to believe on the basis of the reliable material that the detenu though was already in custody but there is possibility of his being released on bail and that on being so released, he in all probabilities indulge in prejudicial activities. In the absence of recording of such satisfaction by the authority in our considered view the impugned order of detention and the subsequent confirmation order are not sustainable. No doubt even in the case of a person in custody the detention order can validly be passed. In the absence of recording of such satisfaction by the authority in our considered view the impugned order of detention and the subsequent confirmation order are not sustainable. No doubt even in the case of a person in custody the detention order can validly be passed. If the authority passing the order is aware of the fact that he is actually in custody and 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. If the authority has passed an order after recording such satisfaction the order cannot be struck down. However, as observed such is not the position in the present case and there is no such satisfaction in the impugned order. In the circumstances, the impugned order is liable to be quashed. [See Rameshwar Shaw Vs. District Magistrate, Bardwan AIR 1964 SC 334 , Sanjay Kumar Agarwal Vs. Union of India (1990) 3 SCC 309 , N. Meera Rani Vs. Government of Tamil Nadu (1989) 4 SCC 418 , Dharmendra Suganchand Chelawat Vs. Union of India AIR 1990 SC 1196 , Kamarunnissa Vs. Union of India AIR 1991 SC 1640 and Abdul Sathar Ibrahim Manik Vs. Union of India (1992) 1 SCC 1 . Veeramani Vs. State of Tamil Nadu JT 1994 (1) SC 350 and an order passed by Division Bench of this Court on 05.07.2010 in Chhenu Alias Yunus Vs. State of M.P. and another in Writ Petition No.5601/2010 = 2011(1) MPWN 50 , Vijay Kumar Vs. State of J & K (1982) 2 SCC 43 , Merugu Satyanarayana Vs. State of Andhra Pradesh AIR 1982 SC 1543 and Binod Singh Vs. District Magistrate, Dhanbad, Bihar and others 1986 Cr.L.J. 1959]. 6. Having regard to the aforesaid, we quash the impugned detention order and the subsequent confirmation order and direct the release of the detenu from the custody, if he is not required in any other case. 7. The petition stands allowed. No orders as to costs.