JUDGMENT S.K. Mookerji, J.
1. This Habeas Corpus Writ Petition has been filed on behalf of Rajendra Singh alias Pahalwan Singh challenging the order of the District Magistrate, Gorakhpur dated 20-7-1992.
2. The impugned order has been passed by the District Magistrate, Gorakhpur detaining the petitioner, under Section 3(3) of the National Security Act, 1980. By the above writ petition the petitioner has also prayed for releasing him forthwith from the police custody.
3. At the very out set it is necessary to point out that at the time when the detention order was passed or served, the petitioner was in jail at Basti in connection with case Crime No. 124 of 1985 under Sections 403/411/467, I.P.C. and case Crime No. 375 of 1992 under Sections 395/397, I.P.C The above detention order along with grounds of detention was served on the petitioner in jail.
4. Counter and rejoinder affidavits have been exchanged. Two counter affidavits have been filed, namely, one by Kalika Prasad, District Magistrate, Gorakhpur and other on behalf of the State Government.
5. From a perusal of the detention order and the grounds of detention annexed thereto it is clear that the petitioner was involved in 20 criminal cases including the aforesaid two cases. In the aforesaid writ petition it is averred that in all criminal cases except in the above two criminals cases, either final report has been filed or compromise was arrived at or it ended into the acquittal. However, the case in the counter affidavits is that the cases against the petitioner could not succeed because the witnesses became hostile or the witnesses could not be made available against the petitioner due to his terror.
6. Learned counsel for the petitioner has confined his argument on one ground only. He submitted that on the date, the detention order was passed against the petitioner, he was already in jail in the case mentioned above and the grounds supplied along with the detention order do not disclose why it became necessary to pass the impugned order of detention. Learned counsel for the petitioner submitted that the detaining authority was fully aware of the fact that the detenu was in jail at Basti in connection with the aforesaid two cases, namely, case Crime No. 124 of 1987 under Sections 403/411/467, I.P.C. and case Crime No. 375 of 1992 under Sections 395/397, I.P.C. However, in the grounds of detention supplied to the petitioner along with the detentiqn order it is not at all mentioned that the petitioner made any bail application in case Crime No. 375 of 1992 under Sections 395/397, I.P.C. nor it is mentioned therein that there was any likelihood of his being released on bail, if any application is made. Learned counsel for the petitioner further submitted that in the grounds of detention there is no mention that in case the petitioner is let out on bail he will pose any threat to the maintenance of public order in the area. In substance it is submitted that there is absolutely nothing in the grounds of detention supplied to the petitioner along with the detention order to show that the petitioner shall disturb the public order in case he is granted bail. In support of his above argument learned counsel for the petitioner has relied upon the pleadings made in the writ petition in paragraphs 16 and 17, which are quoted hereinafter :
"16. That as would be apparent from the grounds of detention itself the petitioner was in jail in pursuance to case Crime No. 124 of 1985 and there did not exist any imminent apprehension of the petitioner being released on bail or coming out of the jail.
17. That the order of detention as also the grounds of detention do not at all advert to the circumstance as to why it was necessary to pass the order of preventive detention against the petitioner even though he was in jail on the date of the passing of the order of preventive detention.
Learned counsel for the petitioner thereafter brought to our notice the contents of paragraphs 30 and 31 of the counter affidavit, filed by Kalika Prasad, District Magistrate, Gorakhpur, which are quoted below :
"30. That the contents of para 16 of the petition as stated are incorrect, misconceived and hence denied and in reply it is made clear that in case No. 124/85, the petitioner surrendered in the Court concerned. It is further made clear that from para 9(t) and Annexures, it is clear that the bail application of the petitioner was pending and as such it is incorrect to say that there was no apprehension that the petitioner will try for bail in another case. As the action under the National Security Act is preventive and not punitive and as such the detention order was passed against the petitioner legally and correctly.
31. That the contents of paras 17,18 and 19 of the petition are incorrect, misconceived and hence not admitted and in reply it is made clear that due to the activities of the petitioner public order was affected, people of that area was terrorised due to even sole incident which took place inside the area of Naveen Phal Mandi, Gorakhpur and even the petitioner was trying for bail and as such it was necessary to take preventive action by passing detention order against the petitioner to maintain public order. Even in the year 1980 the petitioner along with his associates fired inside the premises of Collector's Kutchery, Gorakhur in which an advocate and his brother were killed and the licensed rifle of the Advocate was also snatched. Due to his terror created inside the premises of Collector's Kutchechry, Gorakhpur and the work was completely affected, the Advocates and litigents started running helter and skelter to save their lives and property."
It is clear from paragraphs 30 and 31 of the counter affidavit referred to above filed by Kalika Prasad, District Magistrate, Gorakhpur, that the bail application of the petitioner was pending in case Crime No. 124 of 1985. From the reading of the above two relevant paragraphs 30 and 31 of the counter affidavit it is clear that it is the case of the respondents that there is any likelihood of getting bail by the petitioner nor there is any averment that in case the petitioner is granted bail he would pose any threat to the maintenance of public order in the area.
7. Learned counsel for the petitioner relied upon a decision reported in AIR 1989 SC 2027 : (1989 Cri LJ 2190), N. Meera Rani v. Government of Tamil Nadu With N. Meera Rani v. State of Tamil Nadu. Learned counsel for the petitioner strongly relied upon paragraph 22 of the above decision, which is quoted below :
"We may summarise and reiterate the settled princile, subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend upon the facts of the particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position."
8. We have also heard learned Government Advocate. He submitted that from the antecedents of the petitioner this Court may infer that in case the petitioner is released he will pose threats to the maintenance of public order in the area. We are not in agreement with the above submission. In fact, it is for the detaining authority to record his subjective satisfaction on the relevant grounds. In the present case, the detaining authority has to record his subjective satisfaction on the ground that the petitioner is likely to come out of the jail and shall pose any threat to the maintenance of public order in the area.
9. Taking into consideration all facts and circumstances of the present case we have no doubt that the detention order in the present case must be quashed for this reason alone. The detention order read with its annexure indicates the. detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, 'there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail and on his release he would pose threat to the maintenance of public order. Consequently, the order of detention dated 20-7-1992, Annexure-1 to the writ petition, passed by the District Magistrate, Gorakhpur is quashed.
10. In the result, this writ petition succeeds and is allowed. There shall be no orders as to cost. However, it is made clear that this order will not affect the detenu's custody in connection with case Crime No. 124 of 1985 under Sections 403/411/467, I.P.C. and case Crime No. 375 of 1992 under Sections 395/397, I.P.C. or any other case. We further clarify that in case the detenu is released in the above criminal cases the question of the above preventive detention under the National Security Act on the above material may be reconsidered by the appropriate authority in accordance with law and this judgment shall not be construed as an impediment for that purpose.