Hon'ble Naheed Ara Moonis,J.
(Delivered by Hon'ble Bala Krishna Narayana, J.)
1. Questioning the legality and validity of the order dated 28.4.2015 passed by the District Magistrate, Chandauli, respondent no. 4 directing detention of the petitioner Dablu Rai alias Dilip Rai in exercise of his power under Section 3 (2) of the National Security Act (hereinafter referred to as the 'Act') the petitioner has preferred this Habeas Corpus Writ Petition.
2. Some brief facts giving rise to the controversy involved in this writ petition are that while S. H. O. Ram Narain Ram along with his force was on the duty of maintaining law and order in the area on 9.11.2014 in his private vehicle, he received an information from the police informer that several animals were being transported in two vehicles which were coming from Nawrangabad side at Kabai Paharpur and heading towards Bengal-via-Bihar for the purpose of slaughtering. Upon receiving the aforesaid information, S. H. O., Ram Narain Ram promptly informed the police force already present in the area and ordered interception of the aforesaid vehicle, on which S. I. Chhotu Ram along with his force reached Kabai Paharpur at about 2.00 P. M. and when he saw a pick up coming from towards the side of the wine shop, he signaled the driver of the vehicle to stop, on which Ram Bali, driver of the vehicle parked the vehicle and after locking the steering jumped out from the vehicle along with his other companions and ran away. The search of the pick up which bore registration of U. P.-67T-6226, led to the recovery of two cows and one calf who were mercilessly tied and gagged with ropes. The animals were set free by the members of the police force. In the meantime, the driver of the other pick up bearing registration No. 67T-4036, which was allegedly being driven by the petitioner and chased by another police vehicle, which was occupied by S. I. Chhotu Ram, Constable Sumit Singh and Constable Bhanu Kumar Pandey, dashed his van repeatedly against the other police vehicle with the intention of killing it's occupants and as a result, it's incumbents received several injuries and government vehicle bearing registration No. U. P. 67G-0164, was pushed down from the road as a result of the collisions it was also damaged. Upon exhortations of the petitioner that the police personnel were taking away the cattle of the village as well as his vehicle, about 70-80 persons armed with sticks, brickbats and sharp edged weapons reached the place of occurrence and started pelting stones at the members of the police force and as a result of the aforesaid assault, S. I. Chhoturam, Constable Sumit Singh, Constable Bhanu Kumar Pandey, Constable Moin Rhyne and Constable Rang Bahadur Gupta received severe injuries and the government vehicle bearing registration No. U. P.-67G-0164 was also badly damaged. As a result of the aforesaid criminal activity, an atmosphere of panic gripped the village. Shop keepers pulled down the shutters of their shops and residents of the village hid themselves in their houses. Upon enquiry made from the police officers and the police informer, the complicity of the petitioner along with thirty six other accused was fully established. The criminal activity of the petitioner and the other co-accused had disturbed the tempo of the life and in order to restore the law and order in the area following the aforesaid incident, additional police forces had to be requisitioned from the nearby police stations and deployed in the area and it was after considerable effort, normalcy returned in the area. As a result of the aforesaid incident, public order was totally shattered. The daring crime committed by the petitioner and the other co-accused was widely published in several national and local level newspapers namely, Rashtriya Sahara, Dainik Jagran and Amar Ujala with the various captions like "Cattle smugglers attacked the police force and damaged vehicles", "Police force attacked by cattle smugglers" and "Five persons received injuries in the incident of stone throwing by cattle smugglers."
3. On the basis of the F. I. R. lodged by the S. H. O., Dhanapur district-Chandauli with regard to the aforesaid incident, Case Crime No. 169 of 2015, under Sections-3/5A/8 of the Prevention of Cows Slaughter Act and Section-11 of the Protection of Animals From Cruelty Act and Case Crime No. 170 of 2014, under Sections-307, 147, 148, 149, 323, 504, 506, 186, 353, 332, 336, 427/34 I. P. C. and Section-7 of Criminal Law Amendment Act and Section-13 of the Prevention of Damages to Public Property Act were registered against the petitioner and 36 other persons and S. I. Suresh Yadav was entrusted with the investigation of the aforesaid case. During investigation the I. O. recorded the statements of Ram Narain Ram (complainant) the then S. H. O., police station-Dhanapur, S. I. Chhotu Ram, Constable Sumit Kumar Singh, Constable Navin Kumar Pandey, Constable Moin Rain, Constable Bhanu Kumar Pandey, Constable Rang Bahadur Gupta and Constable Paramhans Singh. He also brought on record the injury reports of the police personnel who had received injuries in the incident and at the instance of S. I. Chhotu Ram inspected the place of occurrence and prepared the site plan. After completion of the investigation the I. O. submitted chargesheet Nos. 01B/15, dated 24.3.2015 and 02A/15, dated 24.3.2015 against the petitioner and other accused.
4. While the petitioner was in district jail, Varanasi on account of his being accused in the aforesaid cases, he was served with the impugned detention order dated 28.4.2015 passed by the respondent no. 4 under Section-3 (2) of the National Security Act along with the grounds of detention. The representations filed by the petitioner were rejected by the State as well as the Central Governments after receiving the report of the advisory board, State Government confirmed the detention order dated 28.4.2015 passed by the respondent no. 4 vide its order dated 9.6.2015.
5. Sri Daya Shankar Misra Misra, learned counsel for the petitioner submitted that there was absolutely no material before the detaining authority which could justify the belief of the detaining authority that the acts allegedly committed by the petitioner and other accused were in any way prejudicial to the public order. He further submitted that the relevant information and material showing that before passing of the impugned order, the petitioner apart from the cases mentioned in the grounds of detention was also involved / accused in other case. Apart from the two cases mentioned in the grounds of detention, the petitioner was also involved in other cases namely, Case Crime No. 4 of 1996, under Sections-323, 504, 506, 324, 325 and 435 I. P. C., P. S.-Dheena, district-Chandauli, Case Crime No. 66 of 1997, under Sections-323, 324, 504 and 506 I. P. C., P. S.-Dheena, district-Chandauli in which he had been acquitted, Case Crime No. 41 of 2014, under Sections-3/5A/8 of the Prevention of Cows Slaughter Act and Section-11 of the Protection of Animals to Cruelty Act, P. S.-Dheena, district-Chandauli and Case Crime No. 57 of 2015, under Section-3 (1) of U. P. Gangsters and Anti Social Activities (Prevention) Act, P. S.-Dhanapur, district-Chandauli, in which he had been bailed out. But no material with regard to the aforesaid cases was brought to the notice of the detaining authority. The aforesaid omission on the part of the sponsoring authority which amounted to withholding relevant and pertinent material from the consideration of the detaining authority has totally vitiated the subjective satisfaction of the detaining authority recorded in the impugned order. He next submitted that the impugned order having been passed by the detaining authority after the petitioner had been granted bail in both the cases on the basis of which Section 3 (2) of the N. S. A. was invoked against him, the same amounts to cancelling his bail by the State without taking recourse to the legal remedy available in this regard.
6. Sri Daya Shankar Misra, learned counsel for the petitioner also submitted that the incident on the basis of which the impugned order of preventive detention was passed, was a simple case of law and order.
7. Learned counsel for the petitioner next submitted that the impugned order of preventive detention was passed by the respondent no. 4 against the petitioner while he was in prison under judicial custody on account of his being involved in Case Crime Nos. 169 and 170 of 2014. It has further been submitted that there was no material placed before the detaining authority for recording his satisfaction about the release of the petitioner from the jail in near future. In paragraph 11 of the grounds of detention it has been mentioned that the petitioner who was confined in district jail, Varanasi was making continuous efforts for obtaining bail and there was strong possibility of the petitioner being released on bail and upon being release on bail, there was all likelihood of the petitioner indulging in activities which would disturb the public order. Advancing his submissions further, learned counsel for the petitioner submitted that of the two cases namely Case Crime No. 169 and 170 of 2014 which relate to the same incident which had taken place on 9.11.2014 on account of which the petitioner was languishing in District Jail, Varanasi, according to paragraph 7 of the grounds of detention, the petitioner had been granted bail by the Sessions Judge, Chandauli vide order dated 20.3.2015 in Case Crime No. 169 of 2014 but the petitioner could not be released on bail on account of his failure to furnish sureties. As far as Case Crime No. 170 of 2014 is concerned, the petitioner had been granted bail in the aforesaid case also vide order dated 24.4.2015 passed by this Court in Criminal Misc. Bail Application No. 13877 of 2015, i. e. before passing of the impugned detention order by the respondent no. 3 on 28.4.2015 but the aforesaid fact does not find any mention in the grounds of detention and there being no material brought before the detaining authority, even remotely suggesting that the petitioner had managed to arrange sureties which would enable him to secure his release on bail and hence it is apparent that no material was placed before the detaining authority by sponsoring authority that recording his satisfaction about the real possibility of the release of the petitioner from the jail in near future. Learned counsel for the petitioner has also submitted that the bald observation of the detaining authority that there is likelihood of the petitioner being released on bail and on his being released on bail, he would again indulge in similar activities disturbing the public peace and order and keeping the petitioner in captivity, is contrary to the catena of decisions of this Court and Hon'ble Supreme Court and also in contravention of fundamental rights enshrined under Article 21 of the Constitution of India. The petitioner was granted bail in Case Crime No. 169 of 2014 on 20.3.2015 but due to non-availability of sureties, he was not released, hence the subjective satisfaction of the detaining authority was irrational, without application of mind and on extraneous considerations.
8. Besides the incident which was made the basis for invoking the provisions of the National Security Act had taken place on 9.11.2014, while the order of detention was passed by the respondent no. 4 on 28.4.2015. The inordinate and unexplained intervening delay of more than six months had snapped the live link, if any, with the incident and passing of the impugned detention order.
9. Per contra, Sri Syed Ali Murtaza, learned A. G. A. representing respondent nos. 1, 3 and 4 submitted that the grounds taken by the petitioner have no legs to stand. There is no illegality or irregularity in the order of detention, which has been impugned in this writ petition.
10. Sri Murtaza has also submitted that not only the petitioner was named in the F. I. R. on the basis of which Case Crime No. 169 of 2014 and Case Crime No. 170 of 2014 were registered at P. S.-Dhanapur, district-Chandauli, his complicity in the commission of the crime which was subject matter of aforesaid Case Crimes was fully established from the statements of the injured eye-witnesses (police personnel) recorded during investigation and their injury reports. After the incident the guardians of the students who were in school, could not reach the schools of their children to bring them back to home. The incident had totally disturbed the public order. The news of the occurrence was published in several newspapers which engaged the attention of those persons who were not present on the spot causing terror and anger in their minds. He further submitted that the detaining authority upon being apprised by the sponsoring authority that the petitioner had moved bail application for his release before the Sessions Judge and there was strong possibility of the petitioner being released on bail and that upon his release the petitioner shall again indulge in activities prejudicial to the public order, hence to prevent such activity in future, the detaining authority passed the detention order against the petitioner.
11. Advancing his submission in this regard further, Sri Murtaza has also submitted that even where a detenue has not moved any bail application, the detaining authority can record its subjective satisfaction that there was likelihood of detenue coming out of jail.
12. Sri Murtaza also submitted that it is true that the petitioner had already been granted bail by the Sessions Judge in Case Crime No. 170 of 2014 on 24.4.2014 before passing the impugned order but the aforesaid fact does not find mention in the impugned order, but the said omission shall not vitiate the impugned detention order in view of the fact that the impugned order was passed by the respondent no. 4 on 28.4.2015 pursuant to the report of the sponsoring authority, S. P., Chandauli, which is dated 10.4.2015, which itself is based on the report of the S. O., Dhanapur dated 5.4.2015 and since both the reports were prepared before the bail order dated 24.4.2015 was passed, hence it was quite natural for the aforesaid fact to be conspicuous by its absence in the impugned order of detention. The failure of the sponsoring authority to bring to the notice of the detaining authority that the petitioner had been acquitted / enlarged on bail in Case Crime No. 4 of 1996, 66 of 1997, Case Crime No. 41 of 2014 and Case Crime No. 57 of 2015 and to bring the necessary documents pertaining to the aforesaid cases to the knowledge of the detaining authority would not in any way vitiate the impugned detention order or the subjective satisfaction of the detaining authority recorded in the impugned order as the entire relevant material was placed before the detaining authority.
13. Sri Murtaza lastly submitted that the subjective satisfaction recorded in the impugned order which is based upon pertinent material is not amenable to judicial scrutiny and the impugned order which does not suffer from any illegality or irregularity, does not call for any interference by this Court.
14. Sri N. D. Rai, learned counsel appearing for the Union of India has adopted the submissions made by learned A. G. A.
15. We have heard learned counsel for the parties and perused the material brought on record as well as the law reports cited by the learned counsel for the parties in support of their respective submissions.
16. The Apex Court in the case of Pebam Ningol Mikoi Devi Vs. State of Manipur and others reported in (2010) 9 Supreme Court Cases 618 has examined the scope of Judicial review of the subjective satisfaction of detaining authority. Paragraph 21 of its verdict rendered in the aforesaid case, which is relevant for our purpose is being reproduced herein below"
"21. To decide the correctness or otherwise of the detention order, two issues of importance arise before this Court. The first is, regarding the documents and material on which reliance was placed by the detaining Authority in passing the detention order. Secondly, with those materials, the detaining authority was justified in arriving at a finding that the detenu should be detained under the National Security Act without any trial. In matters of this nature, this Court normally will not go into the correctness of the decision as such but will only look into decision making process. Judicial review, it may be noted, is not an appeal from a decision but review of the manner in which the decision was made. The purpose of review is to ensure that the individual receives a fair treatment."
17. In Fazal Ghosi v. State of Uttar Pradesh, (1987) 3 SCC 502, this Court observed that: "The District Magistrate, it is true, has stated that the detention of the detenus was effected because he was satisfied that it was necessary to prevent them from acting prejudicially to the maintenance of public order, but there is no reference to any material in support of that satisfaction. We are aware that the satisfaction of the District Magistrate is subjective in nature, but even subjective satisfaction must be based upon some pertinent material. We are concerned here not with the sufficiency of that material but with the existence of any relevant material at all." (emphasis supplied) (Para 3).
18. In Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC 556, the Apex Court opined :- "Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts." (emphasis supplied) (Para 5).
The Court further added:
"...there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct "it is necessary" to make an order "detaining" such person, are subject to judicial review." (emphasis supplied) (Para 5).
19. In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, the Apex Court held:
"...the grounds supplied operate as an objective test for determining the question whether a nexus reasonably exists between grounds of detention and the detention order or whether some infirmities had crept in." (emphasis supplied) (Para 9).
20. In State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, the Apex Court observed that:
"...what is material and mandatory is the communication of the grounds of detention to the detenu together with documents in support of subjective satisfaction reached by the detaining authority." (emphasis supplied) (Para 8).
21. The legal position what emerges from these rulings is that, there must be a reasonable basis for the detention order, and there must be material to support the same. The Court is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and accordingly determine if there is an objective basis for the subjective satisfaction. The subjective satisfaction must be two fold. The detaining authority must be satisfied that the person to be detained is likely to act in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of the public order and the authority must be further satisfied that it is necessary to detain the said person in order to prevent from so acting.
22. In order to determine the validity of the impugned detention order in the light of the principles laid down in the aforesaid decisions, it will be necessary to examine the materials relied by the detaining authority while passing the impugned detention order. The documents relied upon by the District Magistrate mentioned in the grounds of detention are :-
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23. We have very carefully scanned the grounds of detention and documents relied upon by the detaining authority while passing the impugned order of detention. The original record of this case was produced by the learned A. G. A. before us at the time of hearing of this writ petition, and in our considered opinion the relevant material which could have been material to the scope, purpose and object of the National Security Act, was withheld by the sponsoring authority or the detaining authority and which may have moulded the belief / opinion /satisfaction of the detaining authority and persuaded it not to pass the impugned order of detention against the petitioner, namely the documents relating to Case Crime Nos. 4 of 1996 and 66 of 1997, in which the petitioner was acquitted, Case Crime Nos. 41 of 2014 and Case Crime No. 57 of 2015 in which the petitioner had been granted bail and the order dated 24.4.2015 passed by this Court by which the petitioner had been granted bail Case Crime No. 170 of 2014. These documents in our opinion, constituted relevant material for the purpose of recording the satisfaction whether it was imperative to pass an order of prevention detention by him in the exercise of powers conferred under Section-3 (ii) of the National Security Act against the petitioner or not ?
24. In view of the above, the subjective satisfaction recorded by the respondent no. 4 in the impugned order in our opinion, is vitiated on account of withholding of pertinent and relevant material by sponsoring authority from the detaining authority.
25. The submission advanced by learned A. G. A. that the subjective satisfaction recorded by the detaining authority in the order of detention is immune from judicial scrutiny, has absolutely no merit.
26. We have very carefully gone through the law repots relied upon by learned A. G. A. in support of his aforesaid contention namely, AIR (38) 1951 SC 174; Tarapada De and others Versus The State of West Bengal, AIR 1975 SC 638; Tulshi Rabidas Versus The State of West Bengal, AIR 1984 SC 43; D. M. Nowgong and another Versus Sharat Modoi, 2013 (4) SCC 531; Baby Devassy Chully alias Bobby Versus Union of India, 2012 (4) SCC 699; Subramanian Versus State of Tamilnadu and another, but in none of the aforesaid authorities it has been laid down that the subjective satisfaction of the detaining authority is not amenable to judicial scrutiny. The exceptions have been carved out and if the case is covered by the exceptions, then the Courts can examine whether the subjective satisfaction is based upon relevant material in the given case.
27. We now come to the next issue involved in this case i. e. whether the incident which formed the basis for passing the order of preventive detention against the petitioner was a simple case of law and order or an incident which disturbed public order.
28. What is public order has been explained by Hon'ble Apex Court in paras 7 to 15 in the case of State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591, which is quoted here as under:-
"The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed" This question has to be faced in every case on its facts.
"Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: Does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed (See Kanu Biswas v. State of West Bengal (AIR 1972 SC 1656).
29. The apex Court in para 15 of its judgement rendered in Subramaniyam Versus State of Tamilnadu reported in 2012 (4) SCC 699 has observed as hereinunder:
"Public order is the even tempo of the life of the community taking the country as a whole or even as specified locality"
30. Judging in the background of the settled law on the issue in the light of the grounds of detention, we find that the detaining authority in the grounds of detention has stated that on being asked by the police personnel who were chasing him in a government vehicle to stop the pickup, which he was driving, he banged his vehicle against the police vehicle repeatedly causing injuries not only to its incumbents but also damaging the vehicle. The detaining authority has further referred in the grounds of detention that upon his exhorting that the police men were taking away his vehicle and the cattle forcibly, about 70-80 villagers armed with lathis, attacked the police force and indulged in stone pelting as a result of which, several policemen received injuries. The shopkeepers of the area pulled down their shutters while members of the general public hid themselves in their houses. The guardians could not reach their wards' schools to bring them back home. There was disruption of the normal flow of traffic also.
31. Thus in view of the above, it cannot be said that no public order was involved in the instant case and it was only a case relating to law and order.
32. Now, coming to the last ground of attack on the impugned order that there was no material before the detaining authority for recording his satisfaction that there was strong possibility of the petitioner coming out of jail and on coming out of the jail, he would again indulge in activity disturbing public peace and order, we find that the detention order had been passed by the detaining authority so as to highlight the incident, which had allegedly taken place on 9.11.2014, the petitioner has been shown to be accused in two criminal cases namely Case Crime No. 169 and 170 of 2014, which relate to the offences under the Prevention of Cows Slaughter Act and Prevention of Cruelty to Animals Act, Indian Penal Code, Criminal Laws Amendment Act and Prevention of Damages to Public Property Act, for which he will be tried by criminal court on the basis of the legal evidence justifying his complicity but the captivity of the petitioner merely on the so called subjective satisfaction that he will be soon released on bail and upon being enlarged on bail indulge in activity disturbing public peace and tranquility, which is not warranted from any material on record, in our view would constitute an infraction of the valuable fundamental right of the petitioner enshrined under Article 22 (5) of the Constitution of India. The onus lies upon the prosecution to corroborate the charges against the petitioner during the course of trial and the trial Court is fully competent to award appropriate punishment on the proving of the accusations. The object of detention is not to punish a person but to prevent him from indulging in activities detrimental to public order, public peace and tranquility. From the perusal of the impugned order it transpires that the detaining authority has merely recorded therein that there was strong possibility of the petitioner being released on bail and on the mere apprehension of the petitioner being released on bail, the detaining authority has further recorded therein that upon his release, he would again indulge in similar activities, whereas the correct fact is that the petitioner had already been granted bail in both the cases namely, Case Crime No. 169 of 2014 and Case Crime no. 170 of 2014 on 20.3.2015 and 24.4.2015 respectively. The impugned order does not contain any recital whether sureties were available to the petitioner when the order of detention was passed on 28.4.2015 or that the petitioner had arranged sureties and there was every possibility that he will be released on bail as he had managed to secure sureties.
33. The Apex Court has examined the legal impact of the failure of the detaining authority to record in the order of the preventive detention passed with regard to a detenu already imprisoned as a person in the judicial custody that there was real possibility of the detenu being released on bail from the judicial custody and on being such release he will again indulge in similar activities.
34. The Hon'ble Apex Court observed in the case of Haradhan Saha Versus State of Bengal, (1975) 3 SCC 198; AIR 1975 S.C. 2151 in paragraph No. 35 that "where the concerned person is actually in jail custody at the time when the order of detention is passed against him, and is not likely to be released for a fair long time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in the activities which would jeopardised the security of the State or the public order."
35. The Hon'ble Apex Court has laid down the principles as to when the such detention order can be passed, In this regard, the leading case is reported in (1991) 1SCC 128, Kamarunnissa Vs. Union of India and another; which has been followed in the case of Veeramani Vs. State of Tamil Nadu; (2006) 2 SCC664, TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi Vs.State through Secretary and another; JT 2003 (Suppl 2) SC 503 Union of India Vs. 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 this behalf, such an order can not 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."
The above mentioned conditions should be satisfied for the above valid detention or against the person in custody, one of the condition is that there should be real possibility of the person being released on bail."
36. Thus what follows is, that an order of detention passed in respect of a person under judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of Kamarunnissa (supra) and one such essential condition is that authority passing the order of detention in respect of a person in custody should have reason to believe on the basis of reliable material placed before him that there is real possibility of his being released on bail. In the present case, the respondent no. 4 / District Magistrate, Chandauli has failed to record any such satisfaction in the impugned order.
37. The reliance placed by learned A. G. A. upon the judgement of the Apex Court rendered in Criminal Appeal No. 2545 of 2014, arising out of SLP (Criminal) No. 4199 of 2013; The Secretary to government, Public (Law and Order-F) and another Versus Nabila and another in support of his submission that even where a person against whom an order of prevention detention is passed while he is in judicial custody on account of being accused in a criminal case, has not moved any bail application, it will be justifiable for the detaining authority to record its subjective satisfaction that there was likelihood of such detenue being released on bail, in our opinion is totally mis-placed. In the case of Secretary to Government, Public (Law and Order-F) (supra) the Apex Court was examining the validity of an order passed by this Court whereby an order of preventive detention passed under Section 3 (ii) of the National Security Act by the detaining authority was quashed by this Court that on the ground that it was based upon a solitary incident. The Apex Court in paragraph 18 of the aforesaid judgement has held that the impugned order passed by the High Court quashing the order of detention on the ground that the same was based upon a solitary incident, is erroneous in law.
38. The detention order in this case was passed on 28.4.2015 in respect of an incident which had occurred on 9.11.2014, i. e. after more than five and half months. On the date of the passing of the order of detention, the petitioner had been granted bail in both the cases referred to in the detention order but on account of non-availability of the sureties, the petitioner was in jail when the detention order was served, justifying that the petitioner would indulge in similar activities, if set at liberty. The proper course open to the authority was to move the higher courts for cancellation of the petitioner's bail rather than circumventing the orders of granting bail to the petitioner. There is no live link of the incident dated 9.11.2014 with the detention order dated 28.4.2015.
39. Having regard to over all facts and circumstances of the case and catena of authorities cited by learned counsel for the parties, we hold that the detaining authority was not conscious of all the relevant aspects of this case and passed the impugned order merely on the subjective satisfaction sensing activities of the petitioner prejudicial to the public order, if not detained.
40. For the aforesaid reasons, we are of the view that the impugned order cannot be sustained and is liable to be quashed.
41. In the result, writ petition succeeds and is allowed. The impugned order dated 28.4.2015 passed by the respondent no. 4 is hereby quashed. Let the petitioner, Dablu Rai alias Dilip Rai be released forthwith, if not wanted in any other case.
Order Date: 9.3.16/HR