JUDGMENT Vishnu Sahai, J.
1. Through this writ petition preferred under Article 226 of the Constitution of India the petitioner-detenu Raj Nath Pandey has impugned the order dated 16-7-2002, 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 16-7-2002, was served on the petitioner -detenu on 16-7-2002 itself and their true copies are annexed as annexures 1 and 2 respectively to the writ petition.
2. The prejudicial activities of the petitioner-detenu impelling the first respondent to pass the impugned detention order against him are contained in the grounds of detention (Annexure 2), a perusal of which shows that the impugned order is founded on a solitary crime number (Cr.), namely, Cr. No. 263/2002 under Sections 147/148/149/307/302/504 IPC of Police Station Poora Kalandar, District Faizabad registered on the basis of a complaint dated 18-6-2002 lodged by Smt. Kalawati Devi.
The details pertaining to the said Cr. as contained in the grounds of detention, in short, are as under:-- On 18-6-2002 at 6.00 P.M. the detenu along with his sons Nirmal, Ashok and Dharmender Kumar; his brother Keshav Nath; and his associates Ghanshyam and Kalika came to the house of Hosla Prasad in village Heera Pandey Ka Purwa. All of them surrounded Hosla Prasad and after throwing him on the ground the detenu assaulted Hosla Prasad on his neck with a gandasa and severed his legs. His associates were armed with gandasa, katta and country made gun. This incident was seen by Hosla Prasad's wife Smt. Kalawati and his daughter Kumari Seema. They implored the detenu and his associates not to assault Hosla Prasad, but they paid no heed to their wishes. The detenu and his associates also tried to assault the relations of Hosla Prasad, but since they climbed on the roof, their bid failed. After murdering Hosla Prasad the detenu and his associates went away firing.
3. We have heard learned counsel for the parties and in our view this writ petition deserves to succeed on pleadings contained in Paragraphs 9 to 12 of the petition and grounds (d) and (e) of Paragraph 27 thereof. The substance of the pleadings contained therein that on 16-7-2002 (the date on which the first respondent passed the impugned detention order against the petitioner-detenu) no bail application of the petitioner-detenu was pending in any Court and the sole bail application preferred by him in Cr. No. 263/2002 was rejected by the Chief Judicial Magistrate, Faizabad on 6-7-2002; and thereafter he did not prefer any application for bail in the Court and consequently there was no imminent likelihood of his being released from jail and the impugned detention order was unwarranted.
Mr. Virendra Bhatia, learned counsel for the petitioner-detenu, strenuously urged that since there was no imminent likelihood of the petitioner-detenu being released on bail the impugned detention order is punitive in nature and cannot be sustained in law.
4. Mr. Bhatia contended that the impugned detention order suffers from the vice of non-application of mind. To substantiate his submission he invited our attention to the passage in the grounds of detention wherein the detaining authority has stated thus:--
"Aap Is Samay Mukadma Apradh Sankhya 263/2002, Dhara 147/148/149/ 307/302/504 Bhartiya Dand Vidhan Ke Antargat Zila Karagar Faizabad Main Nirudh Hain Aur Jail Se Bahar Aane Ke Liye Pura Prayas Kar Rahe Hain Tatha Jamanat Ka Prathna Patra Nyayalaya Main De Rakha Hain Tatha Aap Aisi Vyavastha Kar Rahe Hain Ki Aapki Jamanat Ho Jaye. Main Santhusht Hoon Ki Jail Se bahar Aate Hi Puna Isi Prakar Ke Gambhir Aur Bhay Aatank Failane Wale Apradh Pun Karit Karenge Aur Aapke Swatantra Rahte Lok Vyavastha Akshunna Nahin Rah Sakti. Uparyukt Adhar Se Mera Yeh Samadhan Ho Gaya Hain Ki Aapke Dwara Aisi Kisi Bhi Riti Main Karyawahi Kiye Jane Ki Sambhavana Hain, Jo Sarvajanik Vyavastha Banaye Rakhne Ke Pratikul Hain Aur Aapko Aisi Riti Main Karyawahi Karne Se, Jo Sarvajanik Vyavastha Banaye Rakhne Ke Pratikul, Rokne Ke Uddeshya Se Yeh Aavashyak Hain Ki Aapko Nirudh Kiya Jaye."
Mr. Bhatia urged that a perusal of the aforesaid passage would show that the detaining authority passed the impugned detention order on the premise that the petitioner-detenu had given a bail application in a Court and was making efforts to be released on bail. He urged that since the petitioner-detenu did not prefer any bail application, after 6-7-2002 (the date on which the Chief Judicial Magistrate, Faizabad rejected his application for bail) the aforesaid recitals in the grounds of detention manifest non-application of mind on the part of the detaining authority.
5. The averments contained in Paragraphs 9 to 12 of the petition and grounds (d) and (e) of Paragraph 27 thereof have been replied to in Paragraph 9 of the return of the detaining authority. The said paragraph reads thus :--
"That the contents of Paragraphs 9, 10, 11, 12 & 13 of the writ petition are misconceived, hence denied. The contention of the petitioner in these paragraphs is that the bail application of the petitioner/detenu in crime No. 263 of 2002 P.S. Pura Kalandar was moved and rejected by the C.J.M. on 6-7-2002 and no other bail application was moved and pending in any Court, hence there was no likelihood of the petitioner, getting bail and get release from Jail and hence there was no likelihood to the petitioner to be released from jail. In reply there to it is respectfully submitted that the detaining authority was aware that the petitioner is in custody and is in District Jail, Faizabad in relation to aforesaid criminal case. The subjective satisfaction with an objective to provide the petitioner detenu for committing the prejudicial act similar to all crime No. 263 of 2002 was based on the cogent material in the form of the copy of the bail application moved by the petitioner in the Court of Chief Judicial Magistrate Faizabad in crime report No. 263 of 2002 which was placed by the sponsoring authority before the deponent. The deponent was also aware that even if it is rejected by C.J.M. nothing prohibited the petitioner detenu to move the bail application in competent judicial superior Court at any time and get bail. Hence the subjective satisfaction is on the basis of the cogent material and is not vitiated in any manner."
Mr. S. K. Singh, learned counsel for opposite parties 1, 2 and 3, strenuously urged that since both in the, grounds of detention and in paragraph 9 of his return the detaining authority has stated that he was aware that petitioner-detenu was in custody and there was cogent material for the detaining authority to conclude that in the event of his being released from custody he was likely to revert to committing prejudicial activities similar to those contained in the grounds of detention and there was no impediment for the petitioner-detenu to prefer a bail application in a superior Court, the subjective satisfaction of the detaining authority to detain the petitioner vide the impugned detention order cannot be faulted in law.
6. We have perused the averments in the rival affidavits and reflected oh the submissions made by learned counsel for both sides. As observed earlier, we find merit in the pleadings contained in Paragraphs 9 to 12 of the petition and those contained in grounds (d) and (e) of Paragraph 27 thereof. It is significant to mention that a perusal of the passage extracted from the grounds of detention would make it manifest that therein the detaining authority has spelt out the rationale for detaining the detenu vide the impugned order, namely that he was making efforts to come out on bail and had preferred an application for bail in a Court. The said rationale is misconceived because in Paragraph 9 of his return the detaining authority has not denied that after the Chief Judicial Magistrate, Faizabad had rejected the petitioner-detenu's bail application on 6-7-2002 he had not preferred any bail application in any superior Court.
It is significant to mention that the grounds of detention were formulated on 16-7-2002 i.e. ten days after the Chief Judicial Magistrate, Faizabad had rejected the bail application of the petitioner-detenu i.e. on 6-7-2002.
7. Since no bail application of the petitioner-detenu was pending on 16-7-2002 (the date on which the detaining authority formulated the grounds of detention) and the detaining authority in the grounds of detention has proceeded on the premise that such a bail application was pending there is no getting away from the inference that the impugned detention order is vitiated by the vice of non-application of mind.
8. The passage, which we have extracted earlier from the grounds of detention, leads to the logical inference that had the detaining authority not been under the belief that the petitioner-detenu had moved an application for bail he would not have detained him vide the impugned order.
We make no bones in observing that we cannot permit the detaining authority to go beyond the grounds of detention formulated by him. Since the averment in Paragraph 9 of his return in terms, that there was no impediment in law in the way of the petitioner-detenu moving for bail in a superior Court of law is not contained in the grounds of detention we are loathe to accept it as it is an afterthought. Had the detaining authority stated in the grounds of detention that he was aware that the petitioner-detenu's bail application was rejected by the Chief Judicial Magistrate, Faizabad on 6-7-2002 and there was no impediment in his way in moving for bail in a superior Court the position would have been different but that is not the burden of song of the detaining authority in the grounds of detention. Therein, as seen earlier, he has mentioned that since the detenu had preferred an application for bail in a Court and there was likelihood of his being released on bail he was detaining him vide the impugned order. To repeat, this is misconceived because in his return the detaining authority does not dispute that on the date of the passing of the detention order i.e. on 16-7-2002 no bail application of the petitioner-detenu was pending in any Court of law.
9. For the aforesaid reasons, in our view, the impugned detention order is vitiated by the vice of non-application of mind and cannot be sustained in law.
10. There is also another reason why the impugned detention order warrants to be quashed and that is on 16-7-202 (the date on which the detaining authority issued the impugned detention order and formulated the grounds of detention) there was no cogent material before the detaining authority to conclude that there was imminent likelihood of the petitioner-detenu being released from custody in Cr. No. 263/2002 of P.S. Poora Kalandar, District Faizabad.
The Supreme Court in Paragraph 19 of the oft-quoted case of Dharmendra Suganchand Chelawat v. Union of India, reported in AIR 1990 SC 1196, has laid down thus :--
The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
11. A perusal of the aforesaid passage from Chelawat's case (supra) would show that before a detention order can be clamped against a person in Custody the following pre-requisites have to be satisfied :--
(a) awareness in the grounds of detention should be shown by the detaining authority that the person sought to be detained is in custody; and
(b) there should be compelling reasons to detain him despite (a).
Compelling reasons has two facets :-- (i) cogent material about the imminent likelihood of release from custody of the person sought to be detained; and (ii) imminent likelihood of his reverting to committing prejudicial activities similar to those contained in the grounds of detention.
12. There is no quarrel that requirement (a) in Chelawat's case, AIR 1990 SC 1196 (supra) is satisfied because in the grounds of detention the detaining authority has mentioned that he was aware that the detenu was in custody in Cr. No. 263/2002 and facet (b) (ii) of compelling reasons is also reflected in the grounds of detention because therein the detaining authority has categorically stated that he was satisfied that in the event of the petitioner detenu being released on bail he was likely to revert to committing prejudicial activities similar to those for which he was sought to be detained.
But we make no bones in observing that facet (b) (i) of compelling reasons, namely, existence of cogent material in respect of the imminent likelihood of the detenu being released from custody is not satisfied in the instant case. We have seen that after the bail application of the petitioner-detenu had been rejected by the Chief Judicial Magistrate, Faizabad on 6-7-2002, the petitioner-detenu did not apply for bail. We have no reservation in observing that the averment in the return of the detaining authority in terms that there was no impediment in law for the petitioner-detenu moving for bail in superior Court does not mean that there was cogent material in terms of Chelawat's case, AIR 1990 SC 1196 (supra) to conclude about the imminent likelihood of the petitioner-detenu being released on bail.
The expression cogent material means plausible/concrete material and the mere possibility of the petitioner-detenu's moving for a bail in superior Court, by no stretch of imagination means that there was cogent material for the detaining authority to conclude that there was imminent likelihood of the release of petitioner-detenu on bail in such a situation, the averment in Paragraph 9 of the return of the detaining authority that the petitioner-detenu could apply for bail in the said Cr. in a superior Court is not sufficient to conclude, that there was imminent likelihood of his being released on bail in near future.
That apart, if the averments pertaining to Cr. No. 263/2002 of Police Station Poora Kalandar, District Faizabad (as contained in the grounds of detention) are examined in relation to petitioner-detenu it would become manifest that there was hardly any possibility of his being released on bail, even by a superior Court. They show that it was he who cut the neck of deceased and severed his legs with a gandasa. We make no bones in observing that on the face of such a ghastly role there was hardly any possibility of even this Court releasing him on bail.
13. In the said circumstances, on a dual ground the impugned detention order is vitiated; firstly because it suffers from the vice of non-application of mind; and secondly because there was no compelling necessity for the detaining authority to have detained the petitioner-detenu as there was no cogent material before him to conclude about the imminent likelihood of his being released from custody in near future.
14. For the said reasons, we allow this writ petition; quash and set aside the impugned detention order; and direct that the petitioner-detenu Raj Nath Pandey shall be released forthwith unless wanted in some other case.