- (1.) K. K. Misra, J. Heard Mr. J. S. Sengar, learned Counsel for the petitioner and Mr. A. K. Tripathi, appearing for the State.
(2.) THE petitioner Malkhan Singh Thakur has filed this habeas corpus petition for being set at liberty and quashing of the order of detention dated 27-2-2001 annexed as Annexure-1 to the writ petition passed under Section 3 (2) of the National Security Act, 1980 (in short the Act) by the District Magistrate, Fatehpur. The petitioner made a representation which was made in the month of November, 2001. Precise date cannot be known since it is not dated. It was rejected. The State Government approved the order of detention on 30-10-2001, i. e. within 12 days from the date of passage of detention order. The approval of the detention order was communicated to the petitioner through the District authorities by the State Government by a Radiogram message and a letter both dated 5-10-2001. The papers received by the District Magistrate Fatehpur were also sent to the Central Government which were received by the Secretary Ministry of Home Affairs, New Delhi on 7-10-2001, within 7 days from the date of its approval by the State Government that is within the period required under Section 3 (5) of the Act. All this goes to show that the provision of Sections 3 (4) and 3 (5) of the Act referred to above were duly complied with. The matter was referred to the Advisory Board by the State Government well within a period of 21 days to be reckoned from the date of actual detention in pursuance to the above order. The Advisory Board found that there was sufficient cause for the detention of the petitioner. It thus approved the aforesaid detention order. After taking into consideration the recommendation of the Advisory Board and other material on record, the detention of the petitioner for a period of 12 months was approved by the State Government. The representation made by the petitioner was rejected and there was no delay in forwarding and processing it by the competent authority nor any such challenge towards it was ever pressed. Three under-noted points have been canvassed before this Court by learned Counsel for the petitioner: (1) The detention order is vague and was passed without application of mind. (2) That in the detention order it has not been mentioned that the petitioner has applied for bail or is likely to apply and likely to be released on bail and thus the detention order is per se bad and illegal as well. Since there was no urgency. He was already in Jail. (3) The incident in respect of which the petitioner was detained under Section 3 of the Act does not pertain to the disturbance of public order, but at best it could be treated as an incident of breach of law and order and consequently the provision of Section 3 (2) of the Act should not have been invoked. A perusal of the detention order would show that the detenu was in judicial custody in connection with an offence under Section 396 I. P. C. and while he was in Jail, impugned detention order was served upon him. An order of detention can validly be passed against a person in custody depending upon the circumstances of each case. In case of Kamrunnissa and another v. Union of India and others, reported in JT 1990 (4) SC 7, it has been held by the Hon'ble Supreme Court that in case a person is in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher Court.
(3.) FROM a catena of decision of this Court it is clear that even when a person is in custody a detention order can validly be passed, if the authority passing the order is aware of the fact that he is actually in custody, if he has reason to believe on the basis of reliable material that there is possibility of him being released on bail and on being so released the detenu in all probability will indulge in prejudicial activity disturbing public order if the authority passes an order after recording his satisfaction, the same cannot be struck down. But the facts of the present case are quite different from the above case. The detenu was involved in case Crime No. 138 of 2001 under Section 396 I. P. C. , P. S. Khaga, District Fatehpur. In such type of cases in which the detenu was involved no subordinate Court ordinarily grants bail. The satisfaction of the detaining authority arrived at in the detention order is quite baseless which goes to show that he has not properly applied his mind while passing the detention order. There is no mention in the detention order that the detenu has made any attempt to secure bail for himself. The fact of pendency of any bail application was not asserted in it at all. It only refers to that on being released on bail there is every possibility of breach of public order by him. Thus presence of pendency of a bail application and a possibility of his release on bail were crucial circumstances for the detaining authority to draw any such conclusion that on being so released he is likely to indulge in any activity prejudicial to public order. Unless these two facts are present in the case the above conclusion is not permissible in law. In grounds of detention above two circumstances are totally lacking therefore the inference about the last ingredient is wholly without any basis. It clearly indicates that the impugned order was mechanically passed.;