- (1.) VISHNU Sahai, J. Through this writ petition, preferred under Article 226 of the Constitution of India, petitioner-detenu Sonu alias Ajai Vikram Upadhayay has impugned the order dated 31-5-2003, passed by Mr. Ram Kumar, District Magistrate, Sultanpur (opposite party No. 3), detaining him under Section 3 (2) of the National Security Act. The detention order, alongwith the grounds of detention, which are also dated 31-5-2003, was served on the petitioner-detenu on 31-5-2003 itself and their true copies have been annexed as Annexure Nos. 1 and 2 respectively to this writ petition.
(2.) THIS prejudicial activities of the petitioner-detenu impelling the 3rd opposite party (District Magistrate, Sultanpur) to issue the impugned detention order against him, are contained in the grounds of detention (Annexure No. 2 ). A perusal of the grounds of detention would show that the impugned detention order is founded on a solitary C. R. namely, C. R. No. 163 of 2003, under Section 302 IPC and 7 Criminal Amendment Act, registered on the basis of a complaint dated 1-3-2003 lodged at 11. 10 a. m. at police station Dostpur, by Smt. Indrapati, wife of Ram Nayak. In short, the details pertaining to the said C. R. are as under: On 1-3-2003 at 10. 00 a. m. detenu Sonu alias Ajai Vikram Upadhayay alongwith his associate Sonu alias Pawan Kumar Shukla went to the shop of Tilthu Agrahari in Kasba Chitepatti within the limits of police station Dostpur, district Sultanpur. The detenu sent Sonu alias Pawan Kumar Shukla to call Ghirau alias Ram Nayak Vishwakarma from his shop. THIS latter forcibly brought Ghirau alias Ram Nayak Vishwakarma to the shop of Tilthu Agrahari, where the detenu was sitting. Thereafter, the detenu abused Ghirau alias Ram Nayak Vishwakarma and the informant. Ghirau alias Ram Nayak Vishwakarma asked the detenu not to abuse him. Thereupon, Sonu alias Pawan Kumar Shukla caught hold of both the hands of Ghirau alias Ram Nayak Vishwakarma and the detenu fired upon him. Thereafter, the detenu and his associate ran away. Informant made unsuccessful bid to catch them. In the grounds of detention, it has been mentioned that as a consequence of the prejudicial act committed by the petitioner- detenu and his association commotion and fear psychosis was created at the place of the incident and in the market and people entered inside their houses and closed their shops. A perusal of the grounds of detention shows that in order to prevent the petitioner-detenu from committing such prejudicial acts, the detaining authority thought it imperative to detain him vide the impugned detention order. We have heard learned Counsel for the parties. Mr. Farid, learned Counsel for the petitioner-detenu invited our attention to paragraph 6 of the supplementary affidavit, filed by Bhanu Pratap Upadhayay, wherein it has been mentioned that since the bail application preferred by the petitioner- detenu dated 12-5-2003 was rejected the same day by Chief Judicial Magistrate, Sultanpur and thereafter, the petitioner- detenu did not prefer any bail application till the passing of the impugned detention order, dated 31-5-2003, there was no cogent material before the detaining authority, warranting issuance of the impugned detention order. Mr. Farid Ahmad, invite our attention to the grounds of detention, wherein the detaining authority has mentioned as follows: [hindi Matter Omitted] In English, the aforesaid passage would reads thus: "you (Sri Sonu alias Ajai Vikram Upadhayay) are in judicial custody in Crime No. 163 of 2003, under Sections 302 IPC and 7 Criminal Amendment Act of police station, Dostpur, district Sultanpur and presently lodged in district jail Sultanpur. On 12- 5-2003, you have preferred on application for bail in the Court of Chief Judicial Magistrate, Sultanpur. There is imminent likelihood that you are likely to be released on bail and thereafter, you would revert to committing similar prejudicial activities, prejudicial to the maintenance of public order. " Mr. Farid Ahmad strenuously contended that since the aforesaid passage (which we have extracted from the grounds of detention) shows that the detaining authority was labouring under the erroneous premise that the bail application dated 12-5-2003, preferred by the petitioner-detenu, before the Chief Judicial Magistrate, Sultanpur was still pending, through in fact it had been rejected by Chief Judicial Magistrate, Sultanpur on 12-5- 2003, the impugned detention order is vitiated by the vice of non- application of mind and therefore, warrants to be quashed and set-aside.
(3.) THE averments contained in paragraph in paragraph 6 of the supplementary affidavit have been replied to in paragraph 8 of the return of detaining authority filed in reply to the averments contained in the supplementary affidavit. In the aforesaid paragraph, the detaining authority admits that the detenu's bail application, dated 12-5-2003, preferred before the Chief Judicial Magistrate, Sultanpur was rejected on the said date itself. He, however, has stated therein that since nothing prevented the petitioner-detenu for initiating the bail proceedings before Superior Court and there was possibility of the detenu committing the prejudicial acts subversive to the maintenance of the public order he was subjectively and reasonably satisfied that it was imperative to issue the impugned detention order against the detenu. In the aforesaid paragraph, the detaining authority has also referred to the decision of the apex Court, rendered in the case of Ahmad Nassar v. State of Tamilnadu, 2000 (1) JIC 221 (SC) : (1999) 8 Supreme Court Cases 473, wherein the apex Court has taken the view that inspite of rejection of the bail application by a Court it is open to the Detaining Authority to come to his own satisfaction, based on the contents of the bail application, that there is a likelihood of the detenu being released on bail and merely because no bail application was pending would be no premise to hold that there was no likelihood of his being released on bail. We have perused the averments contained in paragraph 6 of the supplementary affidavit and those contained in paragraph 8 of the return of the detaining authority filed in response to them. In our view, this writ petition deserves to be allowed.;