- (1.) PETITIONERS Haroon and Haneef have filed this petition chal lenging the order dated 8-7-1999 passed separately against both the petitioners by District Magistrate, Mathura (Annexure 9 to the writ petition) under Section 3 (2) of the National Security Act, under which they have been detained.
(2.) COUNTER-affidavit and rejoinder-affidavits have been exchanged between the parties. Learned Counsel for the par ties have agreed that this petition may be disposed of finally at this stage. Learned Counsel for the petitioners submitted that the impugned order of detention has been passed on basis of the incident dated 24-5-1999, which at the most cause problem of law and order, and had no potentiality to dis turb the public order. It has been further submitted that satisfaction has not been recorded that there was possibility of the petitioners being released on bail. As petitioners were already in custody in case crime No. 104 of 1999 under Section 376 of IPC. There may not be any apprehension against maintenance of public order from petitioners. Lastly it has been submitted that there was delay in deciding the repre sentation of the petitioners by the Central Government which has rendered the con tinued detention of the petitioner illegal. Sri Mahendra Pratap learned AGA and Sri A. N. Pandey, learned Counsel for the Union of India have on the other hand supported the impugned orders of the detention and submitted that there was sufficient material against the petitioner that they disturb public order and commo tion prevailed among the villagers which could be subsided after sustained efforts.
(3.) WE have considered the submis sion so learned Counsel for the parties. However, we are satisfied that the petitioners are entitled for the relief on short ground that the detaining authority failed to record satisfaction with regard to the possibility of the release of petitioners from custody on bail. As both petitioners were in jail, at the time the impugned order of detention was passed against them, it was obligatory on the detaining authority to record satisfaction before passing the im pugned orders, that there was likelihood of release of the petitioners on bail from judicial custody. Without recording such satisfaction the impugned orders of detention could not be passed as there could not have been any apprehension against the maintenance of public order from the petitioners, who were in jail. A Division Bench of this Court in case of Nagendra Rai v. State of U. P. , reported in 1998 (32) ALR 716:1998 (1) JIC 743 (All), held that as the detaining authority did not record any satisfaction that there was likelihood of release of the petitioners on bail, the order of detention could not been passed. Language used in the grounds which formed basis for passing the impugned orders of detention in the present case, is almost similar to the language which was used in the case of Nagendra Rai. The words, are being produced below:-;