- (1.) PETITIONER Dharam Pal Singh has filed this writ petition in the nature of habeas corpus with the prayer that the detention order dated 29-10-1997 passed by the District Magistrate, Lakhim-pur-Kheri (Annexurc No. 1 to the writ petition) he quashed and the petitioner be set at liberty forthwith.
(2.) THE grounds taken in this writ peti tion are several. However, ShriVirendra Bhatia,learned counsel for the petitioner argued basically two points. First, that the narration stated in the grounds of deten tion does not indicate that there was any material before the detaining authority in dicating that the petitioner was likely to get out of jail. It was vehemently argued that a man inside the jail could not have possibly participated in any anti-social ac tivity and if the material placed before the detaining authority do not indicate at all that his bail application has been moved either before the Court of Session or before the High Court after it having been rejected by the C. J. M. Second, that the subjective satisfaction of the detaining authority stands vitiated. In this connec tion attention of the Court was drawn to the averments contained in paragraphs 15, 16, 17 and 18 of the writ petition. To be more specific, paragraph 18 states that no bail application was pending in any Court at the time of the passing of the detention order i. e, 29-10-1997. Shri Bireshwar Nath, learned Government Advocate, however, relied upon several affidavits filed in reply. He pointedly referred to the counter-affidavit of the District Magistrate. He wanted to argue that in view of what has been stated in the affidavit of the District Magistrate it should be taken that since the petitioner's application had been moved before the CJ. M. and rejected, the detaining authority was justified in inferring that the petitioner may move the Sessions Court and the High Court for bail. There is an error in the aforesaid argument of the Shri Bireshwar Nath. Neither the detaining authority nor the sponsoring authority can imagine by themselves without there being material, that the proposed detenu would come out of the jail. In the instant case after rejec tion of bail application of the petitioner from the Court of C. J. M. no bail applica tion has been moved by the petitioner. Under these circumstances the argument of Shri Bireshwar Nath that the District Magistrate was right in his assumption that the petitioner may come out of jail soon is not acceptable.
(3.) IT may be mentioned here that in the instant case the grounds of detention indicate one solitary incident of kidnap ping of a child. No one is mentioned in the said kidnapping incident. IT is alleged that the petitioner may have been responsible for the same. In these circumstances if the petitioner had already surrendered or was; arrested and got inside the jail, his physical detention in the jail was already continu ing when the present detention order has been passed. In this view of the matter the sponsoring authority should have done well to call such materials as may have indicated to him and to the detaining authority that the petitioner was about to come out of jail. In view of the aforesaid discussion, the writ petition succeeds and is allowed. The detention order dated 29-10-1997 is quashed. The petitioner shall be released forthwith unless wanted in any other case. Writ petition allowed. .;