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2012 DIGILAW 670 (MP)

Bhagwan Singh @ Choti v. State of M. P.

2012-07-05

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2012
ORDER Shantanu Kemkar, J. 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 18.01.2012 (Annexure P1) passed by the District Magistrate, Ujjain and also the order dated 25.02.2012 (Annexure P3) 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 in exercise of his powers under section 3(2) of the National Security Act, 1980 (for short, the Act) issued an order dated 18.01.2012 (Annexure P1) detaining the petitioner for a period of one year and was served with the grounds of detention. After receiving the report in affirmative from the Advisory Board, the State Government passed the order dated 25.02.2012 under section 12 of the Act (for short, the Act). 4. Undisputedly, on 18.01.2012 the date of passing of the order of detention, he was already in Jail, as would be clear from the order dated 08.01.2012 (Annexure P2) passed by Judicial Magistrate First Class, Mahidpur. The said order reveals that the petitioner was in Central Jail, Bherugarh for offence under sections 323, 365, 368, 120 (B), 506, 34, 395, 397 and 364A of Indian Penal Code in Crime No.446 of 2011. Thus, on the date of passing of the detention order, which is of 18.01.2012, he was in Jail. 5. Having regard to the aforesaid undisputed position, learned counsel for the petitioner placed reliance on a Division Bench judgment of this Court in the case of petitioner himself – Chhenu Alias Yunus son of Babu Kha Double vs. State of M.P. and another passed in W.P. No.5601 of 2010, decided on 5.07.2010 and in the case of Nitin Bali vs. State of M.P. And others (W.P. No.8731 of 2010) decided on 8.09.2010. 6. 6. In the said order 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. (emphasis supplied) 7. Considering the law laid down by the Supreme Court in the case of Vijay Kumar vs. State of J & K (1982)2 SCC 43 , in which it has been 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.” (emphasis supplied) it has been held by a Division Bench of this Court that the detention of the petitioner was liable to be quashed in the absence of any slightest indication in the order 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. 8. 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 ) and we find that there is no indication in the order to the effect that the detaining authority was aware that the detenu was already in custody and that he has reason to believe on the basis of 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 for compelling reasons a preventive detention order needs to be made. The reply and affidavit of the District Magistrate are also silent on this aspect of the matter. 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 18.01.2012 (Annexure P1) passed by the District Magistrate, Ujjain and also the order dated 25.02.2012 (Annexure P3) 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 18.01.2012 (Annexure P1) and the order dated 25.02.2012 (Annexure P3) and direct the respondents to release the detenu Bhagwan Singh alias Choti son of Premsingh Sisodia from the custody, if he is not required in any other case. 11. The petition stands allowed.