Giridhar Malaviya, J. - (1.) PETITIONER Safiullah has challenged his detention in District Jail, Basti in pursuance of an order dated 26-8-1992 passed by the District Magistrate, Siddhartha Nagar u/Sec. 3 (2) of the National Security Act stating that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order his detention was necessary.
(2.) ACCORDING to the allegations, contained in the grounds of detention, on 13-8-1992 the petitioner and his associates Shah Mohammad, Tahir, Mustafa Molvi, Talib. Shauqat, Mohd. Islam, Sanaullah, Mohammad Ali urf Ali, Musammat Safira, Kallu, Munawwar, Mustafa and Iqbal slaughtered a cow in the ghari of Tahir in village Hasanpur urf Gulariba when Jheenak, Adalat and Ram Dayal s/o. Raj Man saw them cutting the cow into small pieces. Thereafter Jhinak went to police station Mohana where he lodged a written first information report at 8 45 a.m. on the basis of which crime no. 182 of 1992 u/Sec 3/5/8 of Prevention of Cow Slaughter Aot was registered. After Jhinak had left the place of Incident for the police station, Adalat and Ram Dayal son of Raj Man were joined by Bachchu Lal, Ram Adhar s/o Bindeshwari, Durg Vijay and others who also saw that the slaughtered cow was cut into small pieces and the blood in sufficient quantity lying on that place. When Adalat and his companions told the petitioner and his associates that they considered the cow to be their mother whom they worshipped and why they were cutting a cow, the petitioner and Tahir lifted the head of the slaughtered cow and Shah Mohammad and Mustafa taking bogda and knife in their hands said that they had cot their mother and if they considered themselves to be Hindu and claim that they had been fed by the milk of their mother then they might save her ; and after saying this they struck their bogda and knife on the severed head of the cow by raising the slogans "Allaha-o Akbar". They called bad names to Hindus and Hindu community and called them Kafir. At the same time Musammat Safira started hurriedly going towards her village by tying beef in a cloth. When the Hindus, who had assembled there, wanted to catch hold of her the petitioner and his associates Tahir Shah Mohammad and Mustafa armed with bogda, lathis, kulharis challenged the Hindus by saying that if they caught hold of that woman many heads would fall. On account of this conduct of the petitioner and his associates tension prevailed In the locality, communal feelings of the Hindus were surcharged and because of their attitude to do or die communal passion and tension also prevailed in the locality and the people got afraid and terrorised At the same time the police force from the police station Mohana arrived and arrested the petitioner and his associates Tahir, Mohd Islam, Sanaullah and Mohd. All alias Alli. The other persons escaped. The police recovered a large quantity of beef which had been cut in pieces, the head of the cow, its carcass etc Along with the axe knife, hansia, patra and jhauwa etc as also the blood which had fallen on the ground. During the investigation on 14-8-1992 section 153-A, 504/506 IPC was also added in the case registered against the petitioner which matter was pending investigation. The District Magistrate after noting the fact that the petitioner had illegally slaughtered the cow with a view to get communal riot started which would have been prejudicial to the maintenance of public order recorded his satisfaction that to prevent the petitioner from acting in such a manner his detention had become necessary with the result that the order of detention was passed against him. After the notice was issued to the respondents the counter and rejoinder affidavits have been filed in this case. We have heard Sri Ashok Khare learned counsel for the petitioner as also Sri Shiva Ji Mishra learned Addl. Govt. Advocate for the respondents Sri Khare firstly argued that neither the order of detention nor the grounds furnished in support thereof discloses awareness on the part of the detaining authority that the petitioner was already in Jail and there being no awareness on the point of his likely to be released In future at an early date being shown in the order or the grounds, the satisfaction of the detaining authority is vitiated with the result that the detention of the petitioner is bad In the eyes of law. In this connection he has relied upon the judgment of the Supreme Court in the case of B. S. Chelawat v. Union of India, 1990 (1) SCC 746. In this case considering various judgments of the Supreme Court delivered earlier It has been held in paragraph 21 that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu was already in detention, There were compelling reasons Justifying such detention despite the fact that the detenu is already in detention."
(3.) THEREAFTER the judgment adds that the following facts should also be indicated In the grounds- "(a) the detenu is likely to be released from custody in near future and (b) taking Into account the nature of 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" On the facts of the case of D. S. Chelawat (Supra) the Supreme Court had allowed the petition as the grounds of detention only mentioned the fact that the appellants had been remanded to judicial custody till October, 13, 1988 and it did not show that the detaining authority apprehended that further remand would not be granted by the magistrate with the result that there was no consideration of the fact by the detaining authority that the detenu was likely to be released from custody in the near future.;