Hon'ble Chandra Dhari Singh,J.
Per Hon'ble Bala Krishna Narayana, J.
The argument of this case was concluded on 20.09.2018. We then made the following order :-
"Heard Sri Jagdish Prasad Mishra, learned counsel for the petitioner, Sri N.D. Rai, learned counsel for Union of India, Smt. Manju Thakur, learned A.G.A.-I for the State.
We will give reasons later. But we make the operative portion here and now.
This habeas corpus writ petition is allowed. The impugned detention order dated 28.09.2017 passed by respondent no. 3, District Magistrate, Muzaffar Nagar detaining the petitioner u/s 3 (2) in the National Security Act, 1980 is hereby set-aside.
The petitioner Kadar (detenu) is set at liberty."
Here are the reasons :- In this petition, the validity of the detention of petitioner Kadar (detenu) has been challenged. He has been detained by the District Magistrate, Muzaffar Nagar by an order dated 28.09.2017 made under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the NSA).
The activities of the petitioner on account of which the impugned order of preventive detention has been passed against the petitioner, had taken place on 05.06.2017 at about 19.30 hours in village - Nasirpur in which the petitioner along with his accomplices Shahzad son of Dinna, Israr son of Fajlu, Dhola son of Israr, Sajid son of Dinna alias Asgar and Yaseen son of Meenu, all residents of village- Nasirpur, P.S.- Nai Mandi, District- Muzaffar Nagar, had forcibly entered into the house of one Akash, son of Brajpal which was situated in densely populated area and fired indiscriminately at him and as a result of the firearm injuries received by Akash in the occurrence, he died later in the day during his treatment. As a result of the incident, there was stampede in the village and the villagers closed the doors of their houses. They started running helter-skelter to save their lives. Communal tension gripped the atmosphere and communal harmony was totally shattered. On the basis of the F.I.R. of the occurrence lodged by the deceased's uncle Harvir, Case Crime No. 681 of 2017 u/s 147, 148, 149, 452, 302, 307, 504 I.P.C., P.S.- Nai Mandi, District- Muzaffar Nagar was registered against the petitioner and the other co-accused. In order to reduce the communal tension in the village and maintain law and order, additional police force had to be requisitioned. In pursuance of the investigation of the aforesaid case, the petitioner was arrested and sent to jail and was lodged in District Jail, Muzaffar Nagar. His search at the time of his arrest led to recovery of a country-made pistol and live cartridges from him on account of which Case Crime No. 712 of 2017 u/s 3/25 Arms Act was registered against him on 12.06.2017 at about 13.00 hours. After completion of the investigation, charge-sheet was filed in both the aforesaid case crime numbers against the petitioner and the other co-accused.
While the petitioner was in jail he was served with the impugned detention order dated 28.09.2017 along with the grounds of detention.
Learned counsel for the petitioner submitted that a valid detention order should reflect that the authority was aware that the detenu was already in prison under judicial custody and there was reliable material before him on the basis of which he had reason to believe that there was every possibility of the detenu being released on bail and in case of such release the detenu would indulge in prejudicial activities and in order to prevent him from indulging in any activities affecting the public order or the tranquility of the community, it was imperative to pass an order for his preventive detention and unless the aforesaid satisfaction is recorded, the application of mind by the detaining authority cannot be proved and testing the impugned order on the aforesaid principle, the impugned order appears to suffer from vice of complete non-application of mind.
Learned counsel for the petitioner next submitted that since on the date of the passing of the detention order, the petitioner was already in jail and mere possibility of his release on bail was not enough for preventive detention unless there was material before the respondent no. 3 justifying the apprehension that detenu would indulge in prejudicial activities in case of his release on bail. He next submitted that although the detaining authority has in the grounds of detention recorded his satisfaction that the petitioner who was in jail on account of his being accused in Case Crime No. 681 of 2017 u/s 147, 148, 149, 452, 302, 307, 504 I.P.C., P.S.- Nai Mandi, District- Muzaffar Nagar and Case Crime No. 712 of 2017 u/s 3/25 Arms Act, had moved a bail application before the Sessions Judge and there was strong possibility of his being released on bail and in the eventuality of his being released on bail he would again indulge in similar activities prejudicial to the public order but in the instant case there was no material made apparent on record that the detenu if released on bail was likely to indulge in activities prejudicial to the maintenance of public order and hence the impugned detention order cannot sustained and is liable to be set aside. In support of his aforesaid submissions, learned counsel for the petitioner has placed reliance on Shashi Agarwal Vs. State of U.P. and others reported in 1988 (1) SCC 436 and Rameshwar Shaw Vs. District Magistrate, Burdwan & another reported in AIR 1964 SC 334.
Per contra, learned A.G.A. submitted that the impugned detention order does not suffer from any illegality or infirmity requiring any interference by this Court. He further submitted that there was sufficient material before the respondent no. 3 justifying his belief that in case the detenu was released on bail, he would again indulge in activities disturbing the public order.
We have very carefully scanned the impugned order and the grounds of detention and also the counter affidavits filed on behalf of the respondent nos. 1 to 6 in this writ petition and we are constrained to observe that no material justifying the apprehension that detenu would indulge in prejudicial activities in case of his being released on bail was placed before the respondent no. 3. In our opinion the bald statement made in the grounds of detention that the petitioner upon being released on bail would repeat his criminal activities prejudicially affecting the maintenance of public order, was not enough to justify passing of an order of preventive detention against him. We stand fortified in our view by the law laid down by the Apex Court in the case of Rameshwar Shaw (supra) and Shashi Agarwal (supra).
The Hon'ble Apex Court in paragraphs 9 and 10 of its judgment rendered in the case of Rameshwar Shaw (supra) has observed as hereunder :-
"9. It is also true that in deciding the question as to whether it is necessary to detain a person, the authority has to be satisfied that if the said person is not detained, he may act in a prejudicial manner, and this conclusion can be reasonably reached by the authority generally in the light of the evidence about the past prejudicial activities of the said person. When evidence is placed before the authority in respect of such past conduct of the person, the authority has to examine the said evidence and decide whether it is necessary to detain the said person in order to prevent him from acting in a prejudicial manner. That is why this Court has held in Ujagar Singh v. The State of Punjab and jagjit Singh -v. The State of Punjab that the past conduct or antecedent history of a person can be taken into account in making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
10. In this connection, it is, however, necessary to bear in mind that the past conduct or antecedent history of the person on which the authority purports to act, should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary. It would, for instance, be irrational to take into account the conduct of the person which took plate ten years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary. In other words, where an authority is acting bona fide and considering the question as to whether a person should be detained, he would naturally expect that evidence on which the said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justifies the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about the validity of the satisfaction of the authority will have to be considered on the facts of each case. The detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said detention must be carefully and solemnly considered."
Similarly the Apex Court in paragraphs 8, 9, and 10 of its judgment rendered in Smt. Shashi Agarwal (supra) which are being reproduced hereinbelow has held as hereunder:-
"8. The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows.
Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.
9. We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are not in tune with the ratio of the decision in Alijan Milan's case (supra). In Ramesh Yadav v. District Magistrate Etah and Ors., [1985]4 SCC 232 at p. 234, this Court observed:
"On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised;. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."
What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.
10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the Court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed: "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 freedoms of our citizens."
In view of the above, the impugned order cannot be sustained and is liable to be set-aside.
These are the reasons upon which we had set-aside the impugned order dated 28.09.2017 passed by the respondent no. 3, District Magistrate, Muzaffar Nagar.
Order Date :- 20.9.2018 KS