- (1.) IN all these four Writ Petitions, the petitioners have questioned the validity of the orders of the District Magistrate, Ghaziabad dated 25-9-2004 in Writ Petition No. 55796 of 2004 and dated 30-9-2004 in the other three Writ Petitions, whereby they have been detained under the provisions of the National Security Act (hereinafter referred to as the Act ).
(2.) COUNTER and rejoinder-affidavits have been exchanged between the parties and are on record. Since the accusations and the pleadings in all the four Writ Petitions are similar to each other and also as requested by the learned Counsel for the parties, they were heard together and are being disposed of by this common judgment. Heard learned Counsel for the Writ Petitioners and the learned Counsel for the respondents. It appears that the Writ Petitioners are detained on account of their involvement in Case Crime No. 595 of 2004 under Sections 147/148/149/307/302 IPC and Section 27 of the Arms Act Police Station Sihani Gate in the District of Ghaziabad.
(3.) THE ground of detention is enclosed as Annexure-2 to the Writ Petition. A perusal thereof shows that the allegations against the petitioners briefly stated are that they alongwith their associates made indiscriminate firing, as a result of which, one Sanjay died at the place of occurrence and Sunil and Rajendra sustained serious gun shot injury. It has further been stated that the alleged offence was committed at the bus stand at 8 p. m. on account of which an atmosphere of panic and terror was created in the locality and the people started running helter skelter of their safety as a result of which the public order as disturbed. On the request of the Station Officer, Police Station Sihani Gate, District Ghaziabad vide letter dated 28-9-2004, the Senior Superintendent of Police, Ghaziabad, vide letter dated 29-9-2004 sent the proposal to the District Magistrate to detain the petitioners under the provisions of the Act. THE District Magistrate thereafter having satisfied with the material placed before him passed the impugned order on 30-9-2004. In Writ Petition No. 55796 of 2004, the Senior Superintendent of Police sent its report on 24-9-2004 based on the request of Station Officer dated 18- 9-2004 and the District Magistrate passed the order on 25-9-2004. THE State Government thereafter approved their detention for a period of one year from the date of the order of the District Magistrate. Learned Counsel for the Writ Petitioners inter alia contended that the impugned order of detention cannot sustain of the simple reason that the detaining authority without recording his satisfaction about the imminent possibility of the petitioners/detenus being released on bail ordered the detention of the petitioners knowing fully well that they are already detained in judicial custody in connection with the aforesaid crime. The contention, in short, is that the order of detention can be passed against a person, already in custody, only when the detaining authority is satisfied on the material placed before him that there is every possibility of that person being released on bail in near future. Reliance is placed on the judgment of the Hon'ble Apex Court in the case of Union of India v. Paul Manickam and Anr. reported in (2003) 8 SCC 342. It is also submitted that the bail applications moved by all the petitioners were already rejected by the Chief Judicial Magistrate and by the District and Sessions Judge concerned much before passing of the impugned order of detention and on the day when the impugned order of detention was passed, no bail application was pending before any Court and, therefore, there was no material before the detaining authority to suggest that the petitioners were likely to be released on bail. It is submitted that in the absence of satisfaction of the District Magistrate regarding possibility of the detenus being released on bail in the near future, the order of detention is vitiated. It is further argued that even this Court held that the order of preventive detention vitiates where the order of preventive detention is made against a person, already in custody, without recording subjective satisfaction about the imminent possibility of being enlarged on bail. A photo copy of the certified copy of the order/judgment dated 13- 9- 2004 passed in Writ Petition No. 18020 of 2004, Kishan Kumar v. State of U. P. and Ors. , and other connected Writ Petitions was placed before us for perusal.;