JUDGMENT Vishnu Sahai, J.
1.Through this writ petition, preferred under Article 226 of the Constitution of India, the petitioner detenu Nirmal Pandey has impugned the order dated 03-08-2002 passed by the first respondent Mr. Alok Kumar, District Magistrate, Faizabad, detaining him under Section 3(2) of The National Security Act.
The detention order, along with the grounds of detention, which are also dated 03-08-2002, was served on the petitioner-detenu on 03-08-2002 itself and their true copies have been annexed as annexures 1 and 2 respectively to the petition.
2, The prejudicial activities of the petitioner-detenu impelling the first respondent to issue the impugned detention order against him are contained in the grounds of detention (annexure-2). A perusal of the annexure-2 shows that the impugned order is founded on a solitary C. R. namely C. R. No, 263 of 2002 under Sections 147, 148, 149, 307, 302, 504 I.P.C. of Police Station Pura Kalandar, District Faizabad, registered on the basis of a complaint dated 18-06-2002 lodged by Smt. Kalawati at the said police station.
Since, in our view, a reference to the prejudicial activities of the petitioner-detenucontained in the grounds of detention, is not necessary for the adjudication of the pleading contained in paragraphs 9 to 13 of the petition and grounds (iv) and (v) of paragraph 23 thereof, on which alone this writ petition deserves to succeed, we are not adverting to them.
3. We have heard learned counsel for the parties. The substance of the averments contained in paragraphs-9 to 13 of the petition and grounds (iv) and (v) of paragraph-23 thereof, is that the impugned detention order is vitiated by the vice of non-application of mind inasmuch as it was passed on the premise that a bail application of the petitioner-detenu was pending in the Court whereas the reality was that after the rejection of the bail application of the petitioner-detenu by the Chief Judicial Magistrate, Faizabad vide his order dated 06-07-2002 no other bail application was preferred by the petitioner detenu and none was pending at the time when the impugned detention order was passed. To lend force to the said averments Mr. S. A. Ibrahim, learned counsel for the petitioner-detenu, invited our attention to the grounds of detention wherein the detaining authority has stated thus :-- "Aap Is Samay Mukadma Sankhya 263/2002, Dhara 147/ 148/ 149/ 307/ 302/ 504 Bhartiya Dand Vidhan Ke Antargat Zila Karaagar Faizabad Main Nirudh Hain Aur Jail Se Bahar Aane Ke Liye Pura Prayas Kar Rahe Hain Tatha Jamanat Ka Prathna Patra Nyayalya Main De Rakha Hain Tatha Aap Aisi Vyavastha Kar Rahe Hain Ki Aapki Jamanat Ho Jaye..............." Translated in English the said words would mean at this time the petitioner-detenu was in District Jail, Faizabad in C. R. No. 263 of 2002 under Section 147, 148, 149, 307, 302, 504 I.P.C.; he was making efforts to come out from jail; had preferred an application for bail in Court; and was trying to come out on bail. Mr. Ibrahim urged that since this premise is baseless, as after the rejection of his bail application by the Chief Judicial magistrate, Faizabad, on 06-07-2002, the petitioner detenu had not preferred any application for bail the impugned detention order is vitiated by the vice of non application of mind.
4. The averments contained in paragraphs-9 to 13 of the petition have been replied to in paragraph-10 of the return of the detaining authority. The said paragraph reads thus :--
"That in reply to the contents of paragraphs 9 to 13 of the writ petition, it is true that the bail application preferred by the petitioner in the substantive offence C. R. 263/2002 was rejected by the court of C. J. M. Faizabad on 06-07-2002, but the Detaining Authority was aware that the bail application has been rejected by the C. J. M. Faizabad and nothing prevented the petitioner under the law to move bail application before the superior court like the sessions court and the Hon'ble High Court and Hon'ble Supreme Court. The subjective satisfaction of the detaining authority is based on the cogent material in the form of the bail application preferred by the petitioner through his counsel on 06-07-2002 in the Court of C. J. M. Faizabad."
Mr. S. K. Singh, learned Additional Public Prosecutor strenuously urged that although no bail application of the petitioner-detenu was pending in any Court of law on 03-08-2002 (the date when the impugned detention order was passed by the first respondent) but there was no impediment in the way of the petitioner-detenu in preferring an application for bail in any Court and, therefore, the first respondent cannot be faulted for clamping the impugned detention order against the petitioner-detenu.
5. We have perused the averments contained in the paragraphs 9 to 13 of the petition and grounds (iv) and (v) of paragraphs-23 thereof and those contained in paragraph-10 of the return of the detaining authority. As observed by us earlier, this writ petition deserves to succeed. A perusal of the grounds of detention would make it manifest that the detaining authority was prompted to pass the impugned detention order not because there was no impediment in the way of petitioner detainable in preferring a ball application in any Court but because he was satisfied that the detenu had preferred an application for bail which was pending. We cannot permit the detaining authority to wriggle out from the grounds of detention formulated by him. Since therein he has mentioned that the detenu had preferred an application for ball which was pending in a Court of law and he was likely to be released from jail and the painful truth is that after the rejection of the petitioner-detenu's bail application on 06-07-2002 no bail application was preferred by him, there is no escape from the conclusion that the impugned order is vitiated by the vice of non application of mind.
Apart from the above, the satisfaction of the detaining authority to preventively detain the detenu was subjective. And that being so, it cannot be concluded with definitiveness what the subjective satisfaction of the detaining authority would have been had he been aware that no bail application of the petitioner detenu was pending in any Court of law. It may be that on account of the prejudicial activities of the detenu, referred to in the C. R. mentioned in the grounds of detention, he may have still passed the impugned detention order. It may equally be that he may not have passed it. To repeat, since it was a matter under the realm of the subjective satisfaction of the detaining authority we cannot conjecture which way his subjective satisfaction would have gone.
6. In the result, we allow this writ petition; quash and set aside the impugned detention order; and direct that the petitioner-detenu Nirmal Pandey be released forthwith unless wanted in some other case.