Vishnu Sahai, J. - (1.) HEARD Mr. Vishal Chaudhary for the petitioner-detenu, Mr. Janardan Singh, Additional Public Prosecutor for respondent Nos. 1 to 3 and Sri. B. B. Saxena for the respondent No. 4.
(2.) THROUGH this writ petition, preferred under Article 226 of the Constitution of India, the petitioner-detenu Chanda has impugned the order dated 1.2.2003 passed by the first respondent, i.e., Mr. Navneet Sahgal, District Magistrate, Lucknow, detaining him under Section 3 (2) of National Security Act. The detention order along with the grounds of detention, which are also dated 1.2.2003, was served on the petitioner-detenu on 1.2.2003 itself and their true copies have been annexed as Annexures-1 and 2 respectively to this writ petition. The prejudicial activities of the petitioner-detenu impelling the first respondent to issue the detention order against him, are contained in the grounds of detention (Annexure -2), a perusal whereof shows that the impugned order is founded on a solitary C.R. namely, C.R. No. 13 of 2003, under Section 302/34, I.P.C. of police station Naka Hindola, Lucknow, registered on the basis of an F.I.R. dated 13.1.2003 lodged by one Shamshuddin. Since in our view, a reference to the prejudicial activities of the petitioner-detenu contained in the said C.R. is not necessary for adjudication of the pleadings contained in paragraphs 9 to 13 to the writ petition and the ground (d) of paragraph 28 thereof, on which alone, this writ petition deserves to succeed, we are not adverting to them. The substance of the pleadings contained in paras 9 to 13 of the writ petition and the ground (d) of para 28 thereof is that a perusal of material supplied to the petitioner-detenu shows that on 26.1.2003, an offence under Section 2/3 of the U. P. Gangsters Act was registered against him ; the petitioner only preferred a bail application in the offence punishable under Section 302/34, I.P.C. (offence on which the impugned detention order is founded) before the District and Sessions Judge, Lucknow, on 30.1.2003 ; and he did not prefer any application for bail for the offence punishable under Section 2/3 of the U. P. Gangsters Act. Mr. Vishal Chaudhary, learned counsel for the petitioner-detenu strenuously urged that one of the prerequisites prescribed by the Apex Court in paragraph 19 of the oft-quoted case of Dharmendra Suganchand Chelawat and another v. Union of India and others, AIR 1990 SC 1196, before a detention order can be issued against a person in custody, is that there should be cogent material before the detaining authority to conclude that the person sought to be preventively detained is likely to be released from custody in near future. Mr. Chaudhary contended that a perusal of the grounds of detention, makes it manifest that the detaining authority did not take into consideration the fact that the petitioner-detenu had not applied for bail in the case under Section 2/3 of the U. P. Gangsters Act before the designated court. Mr. Chaudhary contended that their perusal shows that he had only applied for bail in the case under Section 302/34, I.P.C. He urged that since the petitioner-detenu had not applied for bail in the case under Section 2/3 of the U. P. Gangsters Act, there was no possibility of his being released from custody in near future and, therefore, the impugned detention order is vitiated in law.
(3.) THE averments contained in paragraphs 9 to 13 of the writ petition and those contained in the ground (d) of paragraph 28 of the writ petition, have been replied to in paragraphs 11 to 15 of the return of the detaining authority. In our judgment, it would be proper to extract the said paragraphs in entirety : "11. That in reply to the contents of paragraph 9 of the writ petition, it is stated that during the course of investigation, it was found that the offence under Section 2/3 of U. P. Gangsters Act was also added as prima facie offence is made out, therefore, Section 2/3 Gangster Act was added in C.R. No. 13 of 2003 by the Investigating Officer on 26.1.2003. 12. That the contents of paragraph 10 of the writ petition relates to the moving of bail application before the Sessions Judge under Section 302/34, I.P.C. needs no reply. 13. That in reply to the contents of paragraph 11 of the writ petition, it is stated that there is no dispute of the fact that there is Special Judge Gangsters Act in relation to entertaining the offence relating to Gangsters Act. 14. That the contents of paragraph 12 of the writ petition are not disputed that the cognizance of the offence relating to U. P. Gangsters Act along with other substantive offence can be entertained by the Special Judge. 15. That in reply to the contents of paragraph 13 of the writ petition, it is stated that when the detention order was passed on 1.2.2003 in the morning session by the detaining authority before 10 O'clock. THE custody warrant by the Special Judge, Gangster Act in the aforesaid C.R. No. 13 of 2003 authorisoin custody of the petitioner under the offence of Section 2/3 Gangsters Act to the Superintendent District Jail, Lucknow, on 1.2.2003, the detention order was earlier passed, therefore, at the time of passing of the detention order before 10 O'clock, the petitioner was not detained in the offence under Section 2/3 Gangster Act relating to C.R. No. 13 of 2003." Mr. Janardan Singh, learned Additional Public Prosecutor, emphatically contended that since the custody warrant of the petitioner detenu in the case under Section 2/3 of U. P. Gangsters Act was prepared by the Special Judge, U. P. Gangsters Act, authorising the Superintendent District Jail, Lucknow, to lodge the petitioner in District Jail, Lucknow on 1.2.2003 after the passing of the detention order, the detaining authority cannot be faulted for not showing his awareness in the grounds of detention about the petitioner detenu being in custody in the offence under Section 2/3 of U. P. Gangsters Act and about the likelihood of his being released from jail in the said offence. We have perused the averments contained in paragraphs 9 to 13 of the writ petition, and the ground (d) of para 28 thereof, as also those contained in paragraphs 11 to 15 of the return of the detaining authority and considered the rival contentions. As mentioned earlier, we find merit in the averments contained in paras 9 to 13 of the petition and ground (d) of para 28 thereof. The Supreme Court in para 19 of Chelawat's case (supra), has observed thus : "19. 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 context 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." ;