JUDGMENT Vishnu Sahai, J.
1. Through this writ petition, preferred under Article 226 of The Constitution of India, the petitioner detenu Zair has impugned the order dated 27-4-2003 passed by Mr. M.A. Khan, District Magistrate, Hardoi (opposite party No. 1), detaining him under Section 3(2) of the National Security Act. The detention order, along with the ground of detention, which are also dated 27-4-2003, was served on the petitioner detenu on 27-4-2003 itself and their true copies have been annexed as Annexure Nos. 1 and 2, respectively to the petition.
2. The prejudicial activities of the petitioner detenu prompting the first respondent to issue the impugned detention order against him are contained in the grounds of detention (Annexure No. 2). In short their perusal shows as under :--
On 2-3-2003, at about 3.00 p.m. the detenu along with his brothers Babu and Bhure, in furtherance of their common intention, reached near the house of Bajhul in village Mahmoodpur Saraiya, Patre was also present there. They instigated and the detenu's brother Babu fired on Patre, who died as a result thereof on the spot. The detenu, with a country made rifle of 315 bore, fired on injured Ruab Begam. Thereafter the detenu along with his associates firing went away.
As a consequence of the prejudicial act committed by the detenu and his associates, a commotion was created in the locality and people closed their doors and houses and hid inside. Those who were working in the fields, ran away.
On the basis of the prejudicial act committed by the detenu and his associates, C.R. No. 117 of 2003, under Sections 302/307/ 506, I.P.C. and Section 2/3 Gangster Act was registered at Police Station Behani, district Hardoi, on the basis of a complaint lodged by Sagir Hussain at the said police station on 2-3-2003. itself. During investigation of the aforesaid C.R. the statements of Samsul Hussain and Sagir were recorded and they reiterated the aforesaid facts.
Since the detenu had used unlicensed fire arm, C.R. No. 121 of 2003 under Section 3/25 of Arms Act was registered against him on 7-3-2003 at police station Pihani, district Hardoi, on the basis of complaint lodged by S.O. R.N. Chodhary.
3. A perusal of the grounds of detention would show that on the aforesaid C.Rs. and some other material referred to in the grounds of detention, the detaining authority was subjectively satisfied that in order to prevent the detenu from committing similar prejudicial acts, in future it was imperative to detain him under Section 3(2) of National Security Act.
4. We have heard learned counsel for the parties.
5. Although in this writ petition, learned counsel for the petitioner has made a number of pleadings and pleaded a number of grounds, but since, in our view, this writ petition deserves to succeed on the pleadings contained in paragraphs 9, 10, 11 and 12 of the writ petition and Ground VIII of para 33 thereof, we are not adverting to other pleadings and grounds of challenge.
6. The substance of the averments contained in paragraph 9, 10, 11 and 12 of the writ petition and Ground VIII of para 33 thereof, is that since the petitioner detenu did not move any application for bail in C. R. No. 117 of 2003 and there was likelihood of his release from custody in near future, there was no compelling necessity on the part of the detaining authority to have clamped the impugned detention order against him.
Mr. Rishad Murtaza, learned counsel for petitioner detenu, emphatically urged that a perusal of the grounds of detention makes it manifest that the petitioner-detenu had only applied for bail in C.R. 121 of 2003 (under Section 3/25 Arms Act) and not in C.R. No. 117 of 2003 (under Section 302/307, I.P.C.).
7. The averments contained in pargraphs 9, 10, Hand 12 of the petition and Ground VIII para 33 thereof have been replied to in paragraph 8 of the return of the detaining authority, which reads thus :--
"That in reply to the contents of para-graphs 9 to 13 of the writ petition, it is stated that the petitioner did prefer bail application in C.R. No. 121 of 2003 through counsel on 22-3-2003 which was rejected by the C.J.M. by order dated 24-3-2003 and thereafter petitioner did not prefer bail application till the date of detention order dated 27-4-2003. However, it is submitted that in C.R. No. 117 of 2003 under Sections 302/ 307/506, I.P.C. but he did not prefer any bail application. However, it is submitted that once the petitioner preferred bail application in connection to C.R. No. 121 of 2003 under Section 3/25 Arms Act, therefore, deponent was aware of the fact that the petitioner can prefer bail application in the competent Court and get bail in C.R. No, 117 of 2003 also because nothing prevented the petitioner to move bail application and get bail under law."
Mr. S.K. Singh, learned A.P.P. emphatically urged that since the petitioner had applied for C.R. No. 121 of 2003, the subjective satisfaction of the detaining authority that he could prefer bail application in a competent Court in C.R. No. 117 of 2003 cannot be faulted.
8. We have perused the averments contained in paragraphs 9, 10, 11 and 12 of the petition, ground VIII of para 33 thereof and considered the rival submissions and as observed earlier that this writ petition deserves to succeed.
The Supreme Court, in paragraph 19, of the oft-quoted case of Dharmendra Suganchand Chelawat v. Union of India, AIR 1990 SC 1196 : (1990 Cri LJ 1232) 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 con-text 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."
9. A perusal of para 9 of Chelawat's case (supra) would show that one of the pre-requisites for clamping a detention order against a person in custody is that there should be a compelling necessity to detain him and one of the facets of compelling necessity is that there should be cogent material to indicate that the person sought to be preventively detained was likely to be released, from custody in near future. In our judgment, this material is wanting in the instant case.
10. The expression cogent material in Chelawat's case (supra) means powerful and convincing material and not the ipse dixit of the detaining authority. In our judgment, the averment in the return of the detaining authority that since the petitioner-detenu had applied for bail in C. R. No. 121 of 2003, there was nothing to prevent him from applying for bail application in C.R. No. 117 of 2003 cannot be described as cogent material. It is common knowledge that bail is invariably granted in an offence under Section 3/25 of the Amis Act (the offence registered on the basis of C.R. No. 121 of 2003) and is not ordinarily granted in a case under Section 302/307 I.P.C. which was registered on the basis of C. R. No. 117 of 2003. In our view, in a brutal murder of the instant type, wherein there was an injured witness having injuries attributable to rifle, there was hardly a chance of the petitioner-detenu being granted bail. It is pertinent to mention that a perusal of the grounds of detention shows that the petitioner-detenu, was responsible for causing rifle injuries on the person of the injured Smt. Ruab Begam. A perusal of the injury report of Ruab Begam, which was placed by the sponsoring authority before the detaining authority shows that she sustained two lacerated wounds, one of which was a wound of entry and one a wound of exit and they were caused by a fire-arm. In our view, considering the serious injuries caused by the petitioner-detenu on Ruab Begam's person, there was hardly any possibility of his being granted bail in CR No. 117 of 2003.
11. In our judgment, considering the role of the petitioner-detenu in C. R. No. 117 of 2003 and bearing in mind the circumstance that the offence forming the subject matter of the said C. R. was committed by the petitioner-detenu on 2-3-2003 and the impugned detention order was passed on 27-4-2003 and during the said period the petitioner-detenu had not preferred any application for bail in the said C. R., it can safely be said that there was no cogent material before the detaining authority (in terms of Chelawat case (supra), AIR 1990 SC 1196), on the basis of which he could have concluded that detenu was likely to be released from custody in near future in C. R. No. 117 of 2003. In such a situation, in our judgment, the impugned detention order is vitiated and cannot be sustained in law.
12. In the circumstances, we allow this writ petition; quash and set aside the impugned detention order; and direct that petitioner-detenu Zair be released forthwith unless wanted in some other case.