JUDGMENT Vishnu Sahai, J.
1. Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Krishna Mangal Singh has impugned the order dated 26.7.2002 passed by the first respondent, Mr. Girdhari Lal, District Magistrate, Sitapur, detaining him under Section 3(2) of the National Security Act.
The detention order along with the grounds of detention, which are also dated 26.7.2002, was served on the petitioner-detenu on 27.7.2002 and their true copies have been annexed as Annexures-1 and 2 respectively to this petition.
2. The prejudicial activities of the petitioner-detenu prompting the first respondent to pass the Impugned order against him are contained in the grounds of detention. Their perusal would show that the impugned order is founded on a solitary C.R., namely, C.R. No. 131 of 2002, under Section 302/307/504/34, I.P.C. of police station Sandana, district Sitapur, registered on the basis of a complaint dated 21.6.2002 lodged by Govind Prasad.
The details relating to the said C.R., contained in the grounds of detention, in short, are as under :
On 21.6.2002, the informant Govind Prasad, a resident of Village Gandhoriya, within the limits of police station Sandana, district Sitapur, lodged an F.I.R. at 9.45 p.m., alleging therein as under :
The house of his cousin brother Rishiraj Dixit, is located in the office premises of Co-operative Society, Gandhoriya. In the same premises is the residence of its Secretary Ram Bharosey. On 21.6.2002, at 7.30 p.m., the petitioner-detenu along with his sons Sunder Singh and Shiv Kumar Singh and one Mangroo, son of Prasadi Teli, armed with illicit weapons, came and asked Ram Bharosey to write something on the official letter head. Ram Bharosey refused and asked them to come next morning whereupon, the petitioner-detenu and his associates started abusing him. The informant, his brother Raghuwansh and his father Ram Chandra Dixit asked them to stop abusing. On that the petitioner-detenu and his associates, with a view to kill them, started firing. As a consequence thereof, Ram Chandra Dixit died on the spot and Raghuwansh and Smt. Munni Devi sustained injuries. On their cries, a number of persons came from the village.
After the incident, the petitioner-detenu and his associates, went away firing.
As a consequence of the aforesaid incident, a fear psychosis was created in the village and people stopped moving, In the grounds of detention, there is also a reference to the statements of the witnesses, recorded under Section 161, Cr. P.C. Their perusal shows that on account of prejudicial act committed by the petitioner-detenu, the even tempo of life of the segment of the community living in the area wherein the incident took place, was affected.
To prevent the petitioner-detenu and his associates from committing such acts in future, the detaining authority has stated in the grounds of detention that it was imperative to detain the petitioner-detenu and his associates.
3. We have heard Mr. Virendra Bhatia, senior advocate for the petitioner, Mr. Jyotindra Misra, Public Prosecutor, for respondent Nos. 1 to 3 and Mr. B. B. Saxena, senior standing counsel Union of India, for respondent No. 4.
4. Although in this writ petition, a number of pleadings and grounds have been taken to assail the impugned detention order but since, in our view, this petition deserves to succeed on the pleadings contained in paragraphs 7, 8, 9, 10, 11, 12, 14, 15, 19 and 20 of the petition, we are not adverting to the other pleadings and grounds raised in the petition.
The substance of the pleadings contained in the said paragraphs is that incomplete criminal history of the petitioner-detenu was forwarded by the sponsoring authority to the detaining authority and since the subjective satisfaction of the latter to preventively detain the detenu vide the impugned order is based on it, the detention order is vitiated in law.
5. Mr. Virendra Bhatia, learned counsel for the petitioner-detenu invited our attention to paragraphs 9, 10, 11, 12 and 15 of the petition. On the basis of averments in paragraphs 9, 10 and 15 of the petition, he contended that in three of the C.Rs. mentioned in criminal history, namely C.R. No. 199 of 1983 under Sections 342/376/468, I.P.C., C.R. No. 110 of 1984 under Sections 454/380, I.P.C. and C.R. No. 44 of 1989 under Section 436, I.P.C. (all of police station Sandana), final report has been submitted against the petitioner. He urged on the basis of recitals contained in paragraphs 11 and 12 of the petition that in two of the C.Rs. mentioned in criminal history, namely, C.R. No. 53 of 1985 under Section 454/380, I.P.C. and C.R. No. 155 of 1989 under Section 302, I.P.C. (both of police station Sandana), the petitioner has been acquitted.
6. Mr. Bhatia contended that if the fact of final reports being submitted against the petitioner-detenu in three C.Rs.; and of his being acquitted in two C.Rs. (referred to above) would have been placed before the detaining authority, his subjective satisfaction would have been influenced one way or the other. He urged that it may be that thereafter he may not have passed the Impugned order or may still have passed it. He urged that since it was a matter in the realm of subjective satisfaction of the detaining authority, it is not open for us to conjecture which way the mind of the detaining authority would have gone if the said facts would have been placed before him.
7. The averments contained in paragraphs 9 to 15 of the petition have been replied to in paragraph 10 of the return of the detaining authority. The said paragraph reads "That the contents of paras 9 to 16 of the writ petition are not disputed, hence needs no reply".
8. A perusal of paragraph 10 of the return of the detaining authority makes it manifest that the averments contained in paragraphs 9 to 15 of the petition are correct.
9. We have considered the rival averments and find merit, in Mr. Bhatia's contention. A Division Bench of this Court in the case of Arun Shanker Shukla alias Anna v. State of U.P. and Ors., 1992 LLJ 328, in a similar situation, in paragraph 14 observed thus :
"The acquittal of petitioner in a number of cases as also submission of the final report in few other cases constitute material fact which ought to have been brought to the notice of the detaining authority, as the said material facts had the potentiality of influencing the mind of the detaining authority, who, on a consideration of all the facts Including the fact that the petitioner was acquitted in a large number of cases and that the police itself had submitted final report against him in few other cases, might not have passed the order of detention."
In the said decision, there is also a reference to two decisions of the Apex Court, namely :
(i) Dharam Das Shamlal Agarwal v. Police Commissioner and Anr., 1989 SCC (Cr) 378 ; and
(ii) Ramesh v. State of Gujarat, 1989 SCC (Cr) 716.
In both the cases, acquittal of the detenu had not been brought to the notice of the detaining authority and the Supreme Court took the view that withholding of this fact had vitiated the detention order.
10. In our view, the ratio laid down in Arun Shanker Shukla alias Anna's case (supra) as also that in Agarwal's and Ramesh's case (supra) is fully applicable to the facts of this case and consequently, this petition deserves to succeed.
11. In our judgment, since the sponsoring authority did not place before the detaining authority the fact that in three of the cases forming part of the criminal history, final report had been submitted against the petitioner-detenu and in two of the cases referred to therein, the petitioner-detenu was acquitted, the subjective satisfaction of the detaining authority to detain the detenu vide the impugned detention order, would be vitiated on the vice of non-application of mind. It may be that had the said facts been placed by the sponsoring authority before the detaining authority, the latter may still have passed the detention order. It may equally be that had they been placed, he may not have passed it. Since it was a matter, which was in the province of the subjective satisfaction of the detaining authority, it is not for this Court to conjecture which way the mind of the detaining authority would have gone.
12. Mr. Jyotindra Misra, learned counsel for the respondents Nos. 1 to 3 contended that a perusal of the grounds of detention and paragraphs 9 and 13 of the return of the detaining authority make it manifest that criminal history has only been mentioned by way of introduction/ preamble and is not a ground of detention and the impugned order is founded on a solitary C.R. namely C.R. No. 131 of 2002 of police station Sandana.
13. We have reflected over Mr. Misra's submission and are constrained to observe that we do not find any merit in it.
In the instant case, perusal of the grounds of detention, (which are in Hindi), show that they run in four pages and three lines and after detailing all relevant facts pertaining to C.R. No. 131 of 2002 of police station Sandana, district Sitapur at the top of page four, the detaining authority has referred to the criminal history of the petitioner-detenu, in words which if translated in English, would read thus :
"In addition to the present case, there are other cases of criminal nature, which have been registered against you at police station Sandana. You are a person having criminal tendency. In view of your aforesaid dare-devil act, terror has been created amongst public. On account of your acts, public order has been disturbed and the even tempo of life has been affected."
On account of above grounds, I am satisfied that in order to prevent you from committing similar activities in future, which would disturb public order and to ensure tranquillity, it is imperative to detain you."
14. In the first place, we would like to point out that introduction/preamble is in the opening paragraphs of the grounds of detention and precedes the paragraphs wherein the C.Rs. (which are the basis of the detention order) have been detailed.
Secondly, the passage in the grounds of detention, which we have extracted above, would show that the impugned order is founded on grounds, which, apart from the present case, include other cases of criminal nature. In our view, the expression "present case" refers to C.R. No. 131 of 2002 of police station Sandana, district Sitapur (referred to in the grounds of detention) and "other cases of criminal nature" to the cases enlisted in the criminal history of the petitioner-detenu.
15. For the said reasons, We do not find any merit in the submission of Mr. Jyotindra Misra.
16. Consequently, we allow this writ petition ; quash the impugned detention order, and direct that the petitioner-detenu Krishna Mangal Singh be released forthwith unless wanted in some other case.