JUDGMENT Hon’ble Anil Kumar Agarwal, J.—Heard Sri D.S. Mishra, Sri Chandrakesh Mishra, Sri Prashant Pandey, learned counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Nitin Gupta, appearing on behalf of respondent No. 1, Union of India. This Habeas Corpus writ petition has been filed on behalf of Sharavan Kumar Yadav, with a prayer to : 1. issue a writ, order or direction in the nature of Habeas Corpus directing the respondents to produce the corpus of petitioner before this Ho’ble Court to set him at liberty from the illegal detention. 2. issue writ, order or direction in the nature of certiorari quashing the impugned order of preventive detention dated 28.2.2012 passed by the respondent No. 3 District Magistrate, Chandauli and order or approval dated 18.4.2012 passed by the respondent No. 2 (Annexures 2 and 5) respectively to the writ petition). 3. issue any other suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. 4. award cost of the Habeas Corpus petition in favour of the petitioner. 2. The facts in brief of this case are that a proposal for detaining the petitioner under the National Security Act (hereinafter referred to as N.S.A.) has been moved by the Officer-In-Charge of the P.S. Alinagar district Chandauli on 9.2.2012, the same was approved and forwarded by the S.P. Chandauli on 10.2.2012 to the District Magistrate Chandauli, the District Magistrate, Chandauli passed the impugned order dated 28.2.2012 in exercise of the power conferred under Section 3(3) of N.S.A. directing the petitioner to be detained as an ordinary prisoner in District Jail Varanasi under Section 3(2) of N.S.A., copy of the order dated 28.2.2012, its grounds and other documents were sent to the petitioner in district Jail Varanasi, the same were received in District Jail Varanasi, the contents of the same were read over and explained to the petitioner, he was informed in regard to the grounds of detention as well as in regard to his right to make representation to the different authorities including the District Magistrate, Chandauli. He was informed to submit the same within 12 days or before the approval of detention order or whichever was earlier. He was informed to submit the same within 12 days or before the approval of detention order or whichever was earlier. The District Magistrate, Chanduali sent a copy of the detention order, grounds of detention and other connected papers to the State Government by letter 28.2.2012, the same were received by the State Government on 29.2.2012, the same was approved by the State Government on 2.3.2012. The approval of the detention order was communicated to the petitioner through the District Authorities by the State Government’s radiogram and letter both dated 5.3.2012, a copy of the detention order, grounds of detention and other connected papers received from the District Magistrate, Chandauli by the State Government, was also sent to the Central Government by the State Government on 5.3.2012. 3. 3. The petitioner filed a representation dated 13.3.2012 in eight copies, the same was sent to the office of the District Magistrate Chandauli on 13.3.2012, which was rejected by the District Magistrate, Chandauli on 19.3.2012, its copy was received in District Jail, Varanasi on 19.3.2012, the same was served upon the petitioner on the same day, a copy of the petitioner’s representation dated 13.3.2012 alongwith the parawise comments therein, forwarded by the District Magistrate, Chandauli by an undated letter, was received in the concerned office of the State Government on 19.3.2012, its copy were sent to U.P. Advisory Board(Detention) to the Central Government vide its separate letter both dated 19.3.2012, concerned section of the State Government examined the recommendations, and submitted a detailed note on 20.3.2012, the same was examined by the Deputy Sectary on 21.3.2012, by the Special Secretary and the Secretary on 22.3.2012 and thereafter it was placed before the State Government, who rejected the same on 22.3.2012, it was communicated to the petitioner through the District Authority vide State Government’s radiogram dated 23.3.2012, the case of the petitioner was referred to the Advisory Board by the State Government by forwarding the detention order, grounds of detention and other connected papers on 5.3.2012, the Advisory Board by its letter dated 14.3.2012 informed the State Government that the case of the petitioner will be taken up for hearing on 19.3.2012 and directed that the petitioner be informed that if he desires to attend the hearing before the Advisory Board alongwith his next friend (non-advocate) he can do so and we allow to take his next friend alongwith him, if he had so requested, It was communicated to the petitioner through the District Authorities by the State Government’ radiogram on 14.3.2012, when the petitioner appeared for hearing before the Advisory Board on that date, the Advisory Board heard the petitioner in person considered his representation and gave its report alongwith complete record of the case expressing therein its opinion that there was sufficient cause for detention of the petitioner. This report and the record of the case were received in the concerned section of the State Government through the Registrar U.P. Advisory Board vide letter dated 12.4.2012 on 12.4.2012, on receipt thereof, the State Government once again examined afresh the entire case of the petitioner alongwith the opinion of the Advisory Board and took a decision on 18.4.2012 confirming the detention order and also for keeping the petitioner under detention on 18.4.2012 for a period of 12 months and it was communicated to the petitioner through the State Government’ radiogram letter both dated 18.4.2012. 4. The representation of the petitioner alongwith parawise comments was forwarded to the Central Government in the Ministry of Home Affairs sent by the Government of U.P. through its letter dated 19.3.2012, the same was received in the concerned section of the Ministry of Home Affairs on 29.3.2012, a report, as envisaged under Section 3(5) of the N.S.A., was made to the Central Government by the State Government through its letter dated 5.3.2012, the same was received by the Central Government in the concerned section on 14.3.2012. the representation was put up for consideration before the Union Home Secretary (who has been delegated the power by the Central Government to decide such cases) on 29.3.2012. The Union Home Secretary, after duly considering the order of detention, its grounds, representation of the petitioners and comments of the detaining authority rejected the representation on 31.3.2012 and the file of the petitioner was sent back to the Joint Secretary, which reached in the section concerned through the Under Secretary on 3.4.2012. A wireless message dated 3.4.2012 was sent to the Home Secretary Government of U.P. Lucknow, Superintendent of District Jail, Varanasi, District Magistrate, Chandauli and the detenu informing that the representation of the petitioner was considered and rejected by the Central Government. A copy of the wireless message was also sent on 4.4.2012 by post to the petitioner through the Superintendent of District Jail, Varanasi. 5. This writ petition has been filed by the petitioner Sharavan Kumar Yadav, being aggrieved by the order dated 28.2.2012 passed by the District Magistrate, Chandauli, the order of its approval dated 5.3.2012 and the order of its confirmation dated 18.4.2012 by which the petitioner has been detained for a period of 12 months. 6. 5. This writ petition has been filed by the petitioner Sharavan Kumar Yadav, being aggrieved by the order dated 28.2.2012 passed by the District Magistrate, Chandauli, the order of its approval dated 5.3.2012 and the order of its confirmation dated 18.4.2012 by which the petitioner has been detained for a period of 12 months. 6. It is contended by the learned counsel for the petitioner that : (i) The detaining authority i.e. District Magistrate, Chandauli was not apprised with complete facts of this case by the sponsoring authority that is why the subjective satisfaction of the detaining authority for passing the impugned order was not proper, which vitiate the order of detention. (ii) The detention order of the petitioner has been passed mainly on the ground that he was involved in case crime No. 316 of 2011 under Sections 364, 302 and 201 IPC, P.S. Ali Nagar, District Chandauli. On the basis of his alleged involvement in case crime No. 316 of 2011, the FIR, in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention Act) was also registered against him. The alleged involvement of the petitioner in case crime No. 316 of 2011 was on account of his personal enmity, it was not affecting the public order, at the most it may be a case affecting the law and order problem. (iii) One of the grounds for passing the impugned detention order is that the charge-sheet was submitted against the petitioner in case crime No. 316 of 2011 under Sections 364, 302, 201 IPC in which the bail application of the petitioner was pending in the Court of learned District and Sessions Judge, Chandauli. The petitioner was making the efforts to release on bail and there was real possibility of his being released on bail and that in being so released he would in all probability indulged in prejudicial activities. In the same ground it has been clearly mentioned that the investigation of case crime No. 342 of 2011 under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention Act), 1986 was also pending against the petitioner. The petitioner was having the criminal antecedents as of case crime No. 445 of 2008 under Sections 137 and 323 and case crime No. 326 of 2009 under Sections 386, 504 and 506 IPC were also registered at P.S. Mughal Sarai, District Chandauli. The petitioner was having the criminal antecedents as of case crime No. 445 of 2008 under Sections 137 and 323 and case crime No. 326 of 2009 under Sections 386, 504 and 506 IPC were also registered at P.S. Mughal Sarai, District Chandauli. The detaining authority was not having any knowledge whether the petitioner was released on bail or any bail application was pending, rejected or not moved in case crime No. 342 of 2011 under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention Act), 1986. The fact is that the petitioner had not moved any bail application in case crime No. 342 of 2011 under Section 3(1) U.P. Gangster and Anti Social Activities (Prevention Act), 1986. Even if the petitioner releases on bail in case crime No. 316 of 2011 there was no real possibility of his releasing from the jail and indulging in prejudicial activities. If this fact would have been brought to the knowledge of the detaining authority, the order of the detention might have not been passed. Even the Sponsoring Authority has not brought the fact to the knowledge of the detaining authority that the petitioner was released on bail in case crime No. 445 of 2008 under Sections 137, 323 IPC and case crime No. 326 of 2009 under Sections 386, 504, 506 IPC, P.S. Mughal Sarai, District Chandauli. It vitiates the impugned detention order. In support of this submission, the counsel for the petitioner cited the following cases (a) Sandeep v. State of U.P. and others, 2008 (1) EFR 605 (Allahabad High Court). (b) Vikrant @ Vikki Tyagi v. Superintendent, District Jail, Muzaffar Nagar decided by the another Division Bench of this Court on 18.4.2008 in Civil Misc. It vitiates the impugned detention order. In support of this submission, the counsel for the petitioner cited the following cases (a) Sandeep v. State of U.P. and others, 2008 (1) EFR 605 (Allahabad High Court). (b) Vikrant @ Vikki Tyagi v. Superintendent, District Jail, Muzaffar Nagar decided by the another Division Bench of this Court on 18.4.2008 in Civil Misc. Habeas Corpus Writ Petition No. 55347 of 2007 (c) Haradhan Saha v. State of Bengal, (1975) 3 SCC 198 : ( AIR 1974 SC 2151 ) wherein it has been observed by the Supreme Court of India in paragraph No. 34 : “ where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of State or public order. “ (d) T.V.Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi v. State through Secretary and another, (2006) 2 SCC 664 , (e) A. Shanthi (Smt.) v. Government of T.N. and others, (2006) 9 SCC 711 (f) Rajesh Gulati v. Government of NCT of Delhi and another, (2002) 7 SCC 129 , in which it has been held that if no bail application was pending, the order of detention order was illegal. (iv) The representation dated 10.3.2012 was not sent on the same day by the Jail Authority to the District Magistrate, Chandauli, it was sent to the District Magistrate, Chandauli on 13.3.2012, the same was received in the office of the District Magistrate, Chandauli on the same day, but it was rejected by the District Magistrate Chandauli on 19.3.2012. There was undue delay in sending the representation by the Jail Authority to the District Magistrate and in deciding the representation of the petitioner by the District Magistrate, Chandauli. There was no proper explanation of delay in sending the representation and deciding the same by the District Magistrate, Chandauli. There was undue delay in sending the representation by the Jail Authority to the District Magistrate and in deciding the representation of the petitioner by the District Magistrate, Chandauli. There was no proper explanation of delay in sending the representation and deciding the same by the District Magistrate, Chandauli. According to the counter-affidavit filed by Smt. Manisha Trighatiya, the detaining authority, the representation was received in her office on 13.3.2012, on 14.3.2012 copy of the representation was sent to S.P. Chandauli for submitting the comments, who submitted the comments through letter dated 16.3.2012 which was received in the office of District Magistrate on 16.3.2012, 17.3.2012 and 18.3.2012 were holidays. Thereafter on 19.3.2012 the representation of the petitioner was rejected by District Magistrate. It also shows that there was no proper explanation of delay in deciding the representation by District Magistrate. (v) There was delay in deciding the representation by the State Government as well as the Union Government, the delay in deciding the representation has not been properly explained. 7. In reply of the above contention, it is submitted by learned A.G.A., the Counsel appearing for Union of India that the detaining authority has not committed any error in passing the impugned detention order which has been subsequently confirmed by the State Government. The representation of the petitioner was rejected by the District Magistrate, State Government and Central Government after due consideration, there was no undue delay in deciding the representation of the petitioner at any stage and the delay has been properly explained. The involvement of the petitioner in Case Crime No. 316 of 2011 under Sections 364, 302 and 201 I.P.C. was affecting the public order, the material supplied by sponsoring authority for passing the impugned order has been properly considered by the detaining authority and after proper application of mind after full satisfaction, the detaining authority passed the impugned detention order. The impugned detention order, subsequent orders passed by the State Government approving and confirming the detention order and the orders passed by State Government, Advisory Board or Central Government with regard to the representation of the petitioner are not suffering from any irregularity or illegality. The continuance detention of the petitioner in jail is not illegal in any manner. The impugned detention order, subsequent orders passed by the State Government approving and confirming the detention order and the orders passed by State Government, Advisory Board or Central Government with regard to the representation of the petitioner are not suffering from any irregularity or illegality. The continuance detention of the petitioner in jail is not illegal in any manner. The detaining authority after being satisfied that there was real possibility of being released on bail, on the basis of material supplied, as has been mentioned in the grounds of detention. If an accused is released on bail in main offence and other offences mentioned in gang chart of a case of Gangster Act, generally he is released on bail in cased of Gangster Act also. If it is not mentioned in the grounds of detention order that no bail application has been moved in a case of Gangster Act, shall not violate the detention order. 8. Considering the facts, circumstances of the case, impugned detention order, its ground, subsequent orders passed by the State Government as well as the Central Government, the submission made by learned counsel for the petitioner, learned A.G.A., counsel appearing on behalf of Union of India, the case cited as mentioned above and from the perusal of record it appears that in the present case, the impugned detention order dated 28.2.2012 has been passed by the District Magistrate Chandauli, the grounds of detention have also been supplied to the detenu which show that the detention order has been passed mainly on the allegation that the petitioner was involved in Case Crime No. 316 of 2011 under Sections 364, 302 and 201 I.P.C. and thereafter the FIR was lodged against him in Case Crime No. 342 of 2011 under Section 3 (1) of U.P. Gangsters and Anti Social Activities (Prevention)Act, 1986. In the grounds of detention, the reference of Case Crime No. 445 of 2008 under Sections 137, 323 I.P.C. and Case Crime No. 326 of 2009 under Sections 386, 504, 506 I.P.C. was also given. In the grounds of detention, the reference of Case Crime No. 445 of 2008 under Sections 137, 323 I.P.C. and Case Crime No. 326 of 2009 under Sections 386, 504, 506 I.P.C. was also given. It has been clearly mentioned in the grounds of detention that the petitioner has moved the bail application in the Court of District and Sessions Judge, Chandauli in Case Crime No. 316 of 2011 under Sections 364, 302 and 201 I.P.C., Police Station Alinagar, district Chandauli, the same was pending and the petitioner was making the efforts for releasing on bail and there was real possibility of his being released on bail and there was a possibility of his indulging in such prejudicial activities which would jeopardize the security of the State or public order but the detaining authority was not apprised with a fact that the petitioner has not moved any bail application in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 even no reference with regard of his on bail has been given in case crime No. 445 of 2008 and case crime No. 326 of 2009 which were shown against him. This fact has not been brought to the knowledge of the detaining authority by the sponsoring authority and the detaining authority also did not make any query to ascertain the fact whether any bail application was moved by the petitioner for releasing him on bail in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangster and Anti Social Activities(Prevention) Act, 1986. There is no controversy/dispute on the question whether the detention order can be passed or not, if a person is in custody. The Courts have laid down the principle as to when such a detention order can be passed. In this regard, the leading case is of Kamarunnissa v. Union of India and another; (1991) 1 SCC 128 , which has been followed in the case of Veeramani v. State of Tamil Nadu; (2006) 2 SCC 664 , TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi v. State through Secretary and another; JT 2003(Suppl 2) SC 503 Union of India v. Paul Manickam and another. It has been held by the Supreme Court of India in paragraph 13 of Kamarunnisa case;- “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 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 his 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 if before a higher Court.” 9. The above mentioned condition should be satisfied for passing a valid detention order against a person in custody, one of the condition is that there should be real possibility of the person being released on bail. In the present case the detaining authority has clearly mentioned in the ground of detention that the petitioner had applied for bail in case crime No. 316 of 2011 under Sections 364, 302 and 201 I.P.C. P.S. Alinagar district Chandauli. The bail application was pending in the Court of District and Sessions Judge, Chandauli and there was real possibility of his releasing on bail, but the District Magistrate was not apprised with the fact that no bail application was pending in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, the detaining authority did not make the query to know the fact whether the petitioner had applied for bail in case crime No. 342 of 2011 or he was released on bail, which shows that complete facts have not been brought to the knowledge of detaining authority, the detaining authority has not applied his mind for satisfaction that there was real possibility of the petitioner being released on bail and indulging in such prejudicial activities which would jeopardised the security of the State or public order. In case it had been brought to the notice of the detaining authority that no bail application was moved by the petitioner in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangster and Anti-Social Activities(Prevention) Act, impugned detention order might have not been passed. The detaining authority should have knowledge about the fact that no bail application was moved in case crime No. 342 of 2011 for recording the satisfaction that there was real possibility of releasing the petitioner on bail. In the present case, there was no indication that the detaining authority had knowledge that the petitioner had not moved any application for bail in case crime No. 342 of 2011 under Section 3(1) of U.P. Gangster and Anti-social Activities(Prevention) Act, satisfaction of the detaining authority that there was real possibility of realising of the petitioner on bail, is not proper which vitiates the impugned order. There is no need to discuss the other points raised by the learned counsel for the petitioner. In view of the above discussion we come to the conclusion that the satisfaction of the detaining authority that there was real possibility of releasing the petitioner on bail, would have been different, if it was brought to the knowledge of the detaining authority that no bail application was moved by the petitioner in case crime No. 342 of 2011 under Section 3(1) U.P. Gangster and Anti-social Activities (Prevention) Act, in absence of the same the satisfaction of the District Magistrate that there was real possibility of releasing of the petitioner on bail, is vitiated. The impugned detention order dated 28.2.2012 passed by the District Magistrate, Chandauli is illegal and is hereby quashed. Let the petitioner be released from jail unless he is wanted in some other case. Accordingly this Habeas Corpus petition is allowed. ——————