Hon'ble Shashi Kant,J.
Heard Sri Swetashwa Agarwal, learned counsel for the petitioner, Sri Deepak Mishra, learned counsel for the Union of India and learned AGA for the State.
This habeas corpus writ petition has been filed by the petitioner Sanchit Gupta with a prayer to issue a writ order or direction in the nature of certiorari quashing the detention order dated 20.08.2015 (Annexure-4 to the writ petition) passed by the District Magistrate, Meerut respondent no.2 in the exercise of his power under Section 3(2) of the National Security Act 1980 (hereinafter after referred to as NSA) and to release the petitioner forthwith.
Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties, this writ petition is being finally disposed of at this stage.
Briefly stated the facts of this case are that while S.I. Vinay Kumar, Constables Lakhal Lal and Ram Chail Rathi of P.S. T.P.Nagar, District Meerut had gone to the house of Smt. Sonia Rana in connection with the investigation of NCR No. 119 of 2015 which was registered P.S. T.P.Nagar, on the basis report made by aforesaid Smt. Sonia Rana on 22.06.2015 alleging therein that the petitioner along with his accomplices Rahul Bania and one unknown person had come to her house on 22.06.2015 at about 12.00 p.m. and after abusing her and damaging her property by driving his Swift car bearing registration DLCAA2175 rashly had left her house threatening her entire family with dire consequences and had thereafter gone to the housse of her acquaintance Jamuna Prasad, resident of Uttam Nagar, Meerut and after abusing him had left his house threatening to shoot Nakul and Golu at sight. While the aforesaid S.I. Vinay Kumar was making inquiry from Smt. Sonia Rana, he received an information at about 7.00 p.m. that the petitioner and his accomplices Nipanshu Gupta, Raj Kumar @Raju,Sumit,Rahul, Monu, Kamal, Golu and Bhokar and about 10-12 unknown persons who were all armed with pistols, iron rods, lathi, danda and hockey sticks had forcibly entered into the house of Jamuna Prasad and were hurling abuses at him and there was a serious apprehension of breach of peace. On receiving the aforesaid information S.I.Vinay Kumar along with constables Lakhan Lal and Ram Chail Rathi reached the house of the Jamuna Prasad and tried to pacify the petitioner and his companions and requested them to stop abusing Jamuna Prasad but the petitioner instead of listening to him fired at the members of the police force with his gun with the intention of killing them but fortunately no-one received any firearm injury in the incident but S.I.Vinay Kumar received a serious head injury as a result of being assaulted by petitioner's accomplice Nipanshu Gupta with his hockey sticks and fell unconscious on the ground. The injured Inspector Vinay Kumar was taken to the K.M.C. Hospital and Research Centre by constables Lakhan Lal and Ram Chail Rathi. As a result of the aforesaid incident, there was stampede on the road and public order was totally distrubed in the nearby areas. On the basis of the FIR of the aforesaid incident lodged by Constable 995 Lakhal Lal case crime no. 337 of 2015, under Sections 147, 148, 149, 452, 307, 332, 353, 323, 504, 506 IPC and Section 7 Crl. Law Amendment Act was registered against the petitioner and other accused at P.S. T.P.Nagar. The petitioner surrendered before the concerned magistrate on 10.07.2015 and was sent to District Jail, Meerut. While the petitioner was in District Jail, Meerut he was served with the impugned detention order dated 20.08.2015. The petitioner submitted a representation before the Jail Superintendent, District Jail Meerut on 27.08.2015 ( Annexure-10 to the writ petition) against the detention order dated 20.08.2015. The representation made by the petitioner before the respondent no.4, Union of India was rejected by order dated 15.09.2015 (Annexure- 11 to the writ petition) which was communicated to the petitioner through Superintendent District Jail, Meerut by wireless message. The respondent no. 2 Secretary Home and Confidential, U.P.Govt., Lucknow on the basis of the report of the Advisory Committee confirmed the detention order dated 20.08.2015 for a period of 12 months from the date of its passing.
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 tranquillity 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 released on bail was not enough for preventive detention unless there was material before the respondent no.2 justifying the apprehension that detenu would indulge in prejudicial activities in case of his release on bail. He next submitted that although the detenting 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. 337 of 2015, under Sections 147, 148, 149, 452, 307, 332, 353, 323, 504, 506 IPC and Section 7 Crl. Law Amendment 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 maintainance of public order and hence the iumpugned 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 Aggarwal 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 AGA 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.2 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 4 in this writ petition and we are constrained to observe that no material justifying the apprehension that detenue would indulge in prejudicial activities in case of his being released on bail was placed before the respondent no.2. 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 maintainance 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 Shahshi Agarwal (supra).
The Hon'ble Apex Court in paragraphs 9 and 10 of its judgement 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(1) 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. Inother words, where an authority is acting bona fide andconsidering 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. Shahsi 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 raisec;. 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. Etemal 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 the instant case, there was no material made apparent on record that the detenue, if released on bail will indulge in activities prejudicial to the maintainance of public order. The detention order appears to have been made merely on the ground that the petitioner who was in jail had moved an application for bail and thre was strong possibility of his being released bailed out. We do not think that the impugned order of detention can be justified on that basis.
The habeas corpus writ petition succeeds and is allowed. The impugned detention order dated 20.08.2015 passed by District Magistrate, Meerut, respondent no.2 is hereby quashed.
The petitioner shall be forthwith releassed, if he is not wanted in any other case.
There shall however be no order as to costs.
Order Date : 18/05/2016 Abhishek Sri/-