Hon'ble Ravindra Nath Kakkar,J.
Per Hon'ble B. K. Narayana, J.
The argument of this case was concluded on 19.09.2018. We then made the following order:-
"Heard Sri Daya Shankar Mishra, learned counsel for the petitioner, Sri Jitendra Prasad Mishra, learned counsel for Union of India, Smt. Manju Thakur, learned A.G.A.-I and Sri J. K. Upadhyay, learned A.G.A. for the State.
We will give reasons later. But we are making the operative order here and now.
This habeas corpus writ petition is allowed. The impugned detention order dated 08.05.2018 passed by respondent no. 2, District Magistrate, Meerut detaining the petitioner u/s 3 (2) of the National Security Act, 1980 is hereby set-aside.
The petitioner Yogesh Verma (detenu) shall be released forthwith unless he is wanted in any other criminal case."
Here are the reasons:- In this petition, the validity of the detention of petitioner Yogesh Verma (detenu) has been challenged. He has been detained by the District Magistrate, Meerut by an order dated 08.05.2018 made under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the NSA).
The impugned order of preventive detention was passed against the petitioner while he was confined to District Jail, Meerut on account of his being accused in following fifteen cases namely :-
(a) Case Crime No. 365 of 2018 u/s 147, 148, 149, 323, 307, 504, 506, 336, 337, 427, 332, 353, 342, 143, 34 I.P.C. & Section 7 Criminal Law Amendment Act.
(b) Case Crime No. 364 of 2018 u/s 147, 148, 149, 323, 307, 504, 506, 395, 336, 337, 427, 332, 353, 143, 342, 34 I.P.C. & Section 7 Criminal Law Amendment Act.
(c) Case Crime No. 362 of 2018 u/s 147, 148, 149, 323, 307, 504, 506, 336, 337, 427, 332, 353, 342, 143, 34 I.P.C. & Section 7 Criminal Law Amendment Act.
(d) Case Crime No. 363 of 2018 u/s 147, 148, 149, 307, 504, 506, 143, 332, 353, 336, 337, 436, 342, 395, 34, 427 I.P.C. & Section 7 Criminal Law Amendment Act & Section ¾ of Prevention of Damage to Public Property Act.
(e) Case Crime No. 358 of 2018 u/s 147, 148, 149, 307, 504, 506, 143, 332, 353, 336, 337, 436, 342, 395, 34, 427 I.P.C. & Section 7 Criminal Law Amendment Act & Section ¾ of Prevention of Damage to Public Property Act.
(f) Case Crime No. 359 of 2018 u/s 25/27/30 of Arms Act.
(g) Case Crime No. 360 of 2018 u/s 25/27/30 of Arms Act.
(h) Case Crime No. 361 of 2018 u/s 25/27/30 of Arms Act.
(i) Case Crime No. 221 of 2018 u/s 147, 148, 149, 323, 504, 506, 332, 336, 325, 352, 353, 307, 395, 397, 452, 427, 342, 436, 188, 120-B I.P.C. & Section ¾ of Prevention of Damage to Public Property Act & Section 7 Criminal Law Amendment Act.
(j) Case Crime No. 350 of 2018 u/s 147, 148, 149, 307, 332, 353, 336, 341, 427, 436, 120-B I.P.C. & Section 2/3 of Prevention of Damage to Public Property Act & Section 7 Criminal Law Amendment Act.
(k) Case Crime No. 218 of 2018 u/s 395, 397 I.P.C.
(l) Case Crime No. 159 of 2018 u/s 147, 148, 149, 332, 353, 336, 435, 307, 395, 504, 120-B, 427 I.P.C. & Section 7 Criminal Law Amendment Act & Section ¾ of Prevention of Damage to Public Property Act.
(m) Case Crime No. 158 of 2018 u/s 147, 184, 149, 353, 435, 307, 341, 352, 120-B, 427 I.P.C. & Section 7 Criminal Law Amendment Act.
(n) Case Crime No. 390 of 2018 u/s 147, 148, 323, 504, 506, 336, 435, 427 I.P.C. & Section ¾ of Prevention of Damage to Public Property Act.
(o) Case Crime No. 389 of 2018 u/s 147, 148, 427 I.P.C.
Apart from the aforesaid cases, following five cases were also shown against the petitioner in the detention order namely :-
(a) Case Crime No. 47 of 2012 u/s 332, 353, 186, 188, 127 I.P.C.
(b) Case Crime No. 85 of 2012 u/s 147, 148, 149, 307, 323, 504, 506, 452, 354, 34 I.P.C.
(c) Case Crime No. 91 of 2012 u/s 126 Ka of Representation of People Act.
(d) Case Crime No. 126 of 2012 u/s 127 Ka of Representation of People Act.
(e) Case Crime No. 315 of 2012 u/s 147, 148, 149, 452, 323, 504, 506, 307 I.P.C.
Learned counsel for the petitioner submitted that in the instant case, it is evident from the perusal of the grounds of detention that the applicant had not moved any bail application in two out of the fifteen cases pending against him namely in Case Crime No. 221 of 2018 u/s 147, 148, 149, 323, 504, 506, 332, 336, 325, 352, 353, 307, 395, 397, 452, 427, 342, 436, 188, 120-B I.P.C. & Section ¾ of Prevention of Damage to Public Property Act & Section 7 of Criminal Law Amendment Act and Case Crime No. 359 of 2018 u/s 25/27/30 of Arms Act and hence, the satisfaction recorded by the detaining authority in the impugned order that there was possibility of the detenu being released and if released on bail, he was likely to indulge in activities prejudicial to the maintenance of public order, is totally vitiated and suffers from non-application of mind by the detaining authority to the material on record and hence, the impugned detention order cannot be sustained and is liable to be set-aside. In support of his aforesaid submissions, learned counsel for the petitioner has placed reliance upon decision of the Apex Court in the case of Rekha v. State of Tamil Nadu through Secretary to Government and another reported in (2011) 2 SCC 596 = 2011 (73) ACC 936 (SC) = 2011 (101) AIC 73.
Per contra Smt. Manju Thakur, learned A.G.A.-I submitted that the impugned detention order does not suffer from any illegality or infirmity requiring any interference by this Court. She 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 the satisfaction recorded by the respondent no. 2 in the impugned order that there was likelihood of the detenu being released on bail despite being fully conscious of the fact that the petitioner had not moved any bail application in Case Crime Nos. 221 of 2018 and 359 of 2018, is in our opinion, wholly unjustified and per se illegal. There was no likelihood of his being released even if he was granted bail in the other six cases pending against him. We stand fortified in our view by the decision of the Apex Court in the case of Rekha (supra). The Hon'ble Apex Court in paragraph 27 of its judgment rendered in the case of Rekha (supra) has observed as hereunder :-
"27. In our opinion, there is a real possibility of release of a person on bail who is aleady in custody provided he has moved a bail application which is pending. It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most Courts normally grant bail on this ground. However, details of such alleged similar cases must be given, otherwise the bald statement of the authority cannot be believed."
The instant case is not covered under the exception carved out to the general proposition of law laid down by the Apex Court in the case of Rekha (supra). It is nobody's case that in the two cases in which the petitioner had not moved any bail application, any co-accused whose case stood on the same footing, had been granted bail and hence, the detaining authority could not reasonably conclude that there was likelihood of the petitioner being released on bail even though no bail application of his was pending in the aforesaid cases.
In view of the above, the impugned order cannot be sustained and is liable to be set-aside.
These are the reasons upon which we had set-aside the impugned order dated 08.05.2018 passed by the respondent no. 2, District Magistrate, Meerut.
Order Date :- 19.9.2018 KS