- (1.) Heard Sri Rajeiu Kumar Tripathi, learned counsel for the petitioner, learned A.G.A. for the State of U.P. and Sri Mohammed Amir Naqvi, counsel for the Union of India.
(2.) This petition has been filed by the petitioner Ashok Kumar Sharma for the following prayers: I)issue a writ, order or direction in the nature of Habeas Corpus holding and declaring the detention order dated 20.7.2013 passed by the District Magistrate, Bahraich as contained in Annexure No.1 to the petition as bad in law and set the petitioner at liberty forthwith. II)Issue any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the facts and circumstances of the case and III)to allow this writ petition with costs. In support of the above mentioned prayers the following grounds have been taken by the petitioner. 1. Because the comparison of grounds of detention as taken by District Magistrate and the report of Superintendent of Police dated 18.7.2013, it would be evident that same verbatim has been there in grounds as well as report. This aspect of matter clearly establishes the fact that District Magistrate has passed/issued the order of detention without applying her mind independently. 2.Because the District Magistrate, has mentioned the order number in the grounds though both are of the same date but mentioning of order number in the ground establishes the fact that after passing of impugned order of detention the grounds have been prepared and this aspect of the matter further goes to prove that District Magistrate has passed the impugned detention order without having been any subjective satisfaction/conclusion. 3.Because from the averments made in the sponsoring report of Superintendent of Police dated 18.7.2013 and Dossier of Station House Officer dated 18.7.2013, a solitary incident of alleged murder is being made basis of the impugned detention order, if that is taken to be true on its face, same can best be termed as incident involving law and order, but not a public order. 4.Because the grounds of detention passed Detaining Authority is based on sponsoring report and dossier where a black picture regarding the character of petitioner has been made though as per own admission on part of opposite parties, petitioner has no criminal history. 5.Because the detaining authority has not mentioned any period of detention of the petitioner. This aspect of matter further establishes that detaining authority has passed the impugned order without application of mind and without being aware of the previsions of the National Security Act, 1980. 6.Because the material available in the dossier of police which is being relied upon by the sponsoring authority are self contradictory on the point allegations regarding "Public Order" but this aspect of matter has not taken care of by the detaining authority while passing the impugned detention order. 7.Because the ground taken by the detaining authority in passing the impugned order is that bail application has been filed on behalf of petitioner, but there is no conclusion that there is any likelihood of petitioner being released on bail, as such there is nothing on record which may be termed as subjective satisfaction of detaining authority. 8.Because the witnesses which have been cited in the report sponsoring authority and in the grounds taken by detaining authority are close relatives of first informant and deceased. Pankaj Mishra and Neeraj Mishra are real brothers to each other and sons of Jagdish Mishra, who is maternal uncle of deceased Avdhesh and brother-in- law of first informant and are resident of Village Nakha which is situated at the distance of 7 km away from the place of alleged occurrence, as such a concocted and ante dated occurrence have been relied upon by the detaining authority in passing the impugned order. 9.Because the impugned detention order has been passed without there being any satisfaction that it is to be necessary to be passed to prevent the petitioner from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supply of services essential to the community. 10.Because since the petitioner is in judicial custody, the apprehension as alleged in the grounds of detention order and in the impugned order are quite unsustainable in the eyes of law. 11.Because while passing the impugned detention order and order of approval, opposite parties have completely overlooked that the personal liberty of an individual is the most precious and prized right guaranteed under Part -III of the Constitution of India. The State has been granted the power to curb such right under criminal laws as also under the law of preventive detention which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such act are in any way prejudicial to the interest and the security of the State and its citizens or seek to disturb public order, warranting the issuance of such an order. 12.Because the Hon'ble Apex Court, while considering the right of liberty as contained in Article 21 of the Constitution of India and Article 22 thereon as well as provisions of section 167 of Code of Criminal Procedure in case of Yumman Ongbi Lembi Leima Vs. State of Manipur and others,2012 1 JIC 681 has held that an individual incident of an offence under Indian Penal Code, however, heinous in not sufficient to make out a case for issuance of an order of preventive detention. 13.Because the kind and immediate indulgence of this Hon'ble court in inevitably necessary not only in the interest of justice, but for allowing the petitioner to avail his fundamental rights of life and liberty as guaranteed under Part III of the Constitution of India.
(3.) The learned counsel for the petitioner has submitted that (1) the impugned order of the detention may not be passed on a solitary incident. (2) the incident in which the petitioner has been made the accused is not affecting public order, it may be law and order problem. (3) the detaining authority has not considered the report of sponsoring authority, therefore, the impugned detention order has been passed without applying judicial mind and without having been any subjective satisfaction.;