- (1.) R. B. Mehrotra, J. By means of the present Habeas Corpus Petition, the petitioner, namly, Rajeev Bharti has challenged the detention order passed against by the District Magistrate, Aligarn on 29th of June, 1994 directing detention of the petitioner under Section 3 (2) of the National Security Act (hereinafter referred to as the Act) and also challenging the continuance of his detention in pursuance of the aforesaid order.
(2.) THE petitioner has contended many grounds in support of his writ petition but since we are satisfied that the present petition can be allowed on a short ground, we are not referring to all the grounds and suomissions made by the petitioner's counsel. The grounds supplied to the petitioner along with detention order state that on llth of June, 1994, during day time, sometime before 11 a. m. , the detenu coming on a Scooter along with another person, out of his old personal emnity, fired fmany shots on Shakil son of Abdul Rashid by a fire-arm due to which aforesaid Shakil was seriously injured. This incident was alleged to have happened near Panditani Mandir, Lohia Nagar on public road. It was further stated in the grounds of detention that a case under Section 307, IPC has been registered against the detenu. It is further stated that when the Investigating officer reached the spot, he saw that the traffic has stopped and the people of the locality of Lohia Nagar have closed themselves in their houses and were not ready for deposing anything regarding the incident. The passersby were also frightened. The public order of the locality, where the incident occurred, was wholly disturbed. The eye witnesses have narrated that the detenu riding on the scooter went away declar ing that if anybody tries to obstruct the detenu, he will be killed and thereby the detenu was successful in running away by terrorising the people. Due to dis turbance of the public order, all the tea-stalls and other small stalls were closed. Women passersby even started running here and there leaving their children. The injured Shakil died at 12-10 p. m. and the case lodged against the detenu was converted into under Section 302, IPC. After this incident, many people of the community of the deceased Shakil assembled near Malkhan Singh District Hospital and were agitated and were getting out of control with a feeling of vengeance. There was communal tension in the entire city. There after it was mentioned in the order that the detenu is under detention in connection with Case Crime No. 485/92, under Section 302, IPC in the District Jail, Agra. It was also mentioned that the detenu had applied for bail and there is possibility of his being released on bail and if the detenu is released on bail, there is likelihood of the normal condition being disturbed in the entire Aligarh city and nearby places and there are possibilities of disturbance of public order and difficulty may arise in maintaining the public peace. The operative portion of the detention order says that for this reason, it is necessary to detain the detenu for the purpose of restraining him from indulging in similar type of activities again. A bare reading of the grounds of detention clearly demonstrates that the petitioner is alleged to have committed murder of a person of different community to settle a personal score. There is no allegation against the petitioner in the grounds that he committed offence for the purpose of creating communal tension or disturbing public order. It may be true that as a consequence of the petitioner's action, the public order might be disturbed, but the vital question which requires consideration in the present matter is that if a person commits some offence for settling a personal score which results in disturbance of the public order can merely on the said basis, the detaining authority can arrive at a satisfaction that if such a person comes out of Jail, he will again indulge himself in activities which are likely to disturb public order.
(3.) THE grounds of detention served on the petitioner also do not men tion that if the petitioner comes out of jail, he is likely to indulge himself in some activities which are likely to disturb the public order. fcithe grounds only say that if the petitioner comes out of jail it is likely to result in disturbance of public order and may create disturbance in maintenance of public peace. THE petitioner cannot be blamed for such a situation. In a recent decision, the Hon'ble Supreme Court has held that the detaining authority must be satisfied before passing the detention order that if the detenu comes out of jail 'he may again indulge in serious offences causing threat of public order'. In the present case, the detaining authority has not recorded any such satisfaction that if the petitioner comes out of jail, he will again indulge himself in any activity causing threat to public order. The grounds only state that as a result of coming out of the petitioner from jail, the public order will be disturbed. For this the petioner cannot be held responsible and on this basis the detention order cannot be justified. The present matter Is squarely covered by the dictum of the Hon'ble Supreme Court in Surya Prakash Sharma v. State of U. P. and others, JT 1994 (5) SC 102 wherein the Hon'ble Supreme Court has reiterated the earlier law of the Constitution Bench in Rameshwar Shaw v. District Magis trate, Burdwan (1964) 4 SCR 921 and Dharmendra Surgarchand Chela-watv. Union of India, AIR 1990 SC 1196 : (1990) 1 JIC 396 (SC) and in the said case the Hon'ble Supreme Court has held that since there was no cogent material before the detaining authority nor any cogent ground was furnished in support of the averments that if the detenu comes out of jail, he may again indulge in serious offences causing threat to public order. The present matter stands on a better footing than the case of Surya Prakash Sharma (supra ). Here it is not even alleged in the grounds that if the peti tioner comes out of jail, he will involve in activities which are likely to result in disturbance of public order. At the cost of repetition, it is being said that in the present matter the observation of the detaining authority is that if the petitioner is released on bail, it is likely to result in disturbance of public order, on the said basis the detention order cannot be justified.;