MADAN, J. - (1.) BY this habeas corpus petition, the petitioner has assailed his detention order on 13. 7. 2000 by the District Magistrate Bharatpur under sub Sec. (2) of Sec. 3 of the National Security Act, 1980 (for short `the Act') with a view to preventing him for acting in any manner prejudicial to the maintenance of public order. Alongwith detention order (Anex. 2), the petitioner was also served with grounds of detention (Annex. 10) under Sec. 8 (1) of the Act, against which he made a detailed representation (Annex. 3) to the Home Secretaries to the Government of India so also the Government of Rajasthan. BY order dated 18. 7. 2000 (Annex. 4) the petitioner was communicated approval of the State Government to the order of his detention. Subsequently by order dated 4. 9. 2000 (Annex. 5) the State Government after having considered the report of the Advisory Board and relevant material on record confirmed the detention of the petitioner and ordered to continue his detention for a period of one year from the date of his detention viz. 13. 7. 2000 to 12. 7. 2001. Hence this petition.
(2.) BESIDES having filed para wise reply to the petition, the respondents have also filed an affidavit of Tanmay Kumar, who had issued impugned order of detention while functioning as District Magistrate Bharatpur. Shri MK Kaushik learned counsel appearing for the detenu vociferously contended that though the detaining authority (District Magistrate Bharatpur) directed to detain the petitioner for only six months under detention order dated 13. 7. 2000 (Annex. 2) but the State Government while confirming the detention order to continue the detention for one year which is in contravention of the provisions of the Act. Shri Kaushik further contended that the grounds of detention of the detenu are based on certain old incidents of 1992 onwards which are of state nature inasmuch as for those incidents the petitioner had already been facing trial while he has been granted bail in all the cases but the detaining authority did not consider this aspect but also the facts of most of cases relating to few individuals. During the course of arguments, Shri Kaushik argued that as would be evident from ground No. 1 of the detention order it was a case of mere beating involving offence of bailable nature and that apart the petitioner had also lodged counter report against Durga Prasad, Devendra etc. for offence of Sec. 307 IPC but the prosecution has been lingering on the trial, whereas despite the fact of the petitioner having been acquitted, under ground No. 2 the detaining authority did not consider this fact of acquittal and further ground No. 3 dealt with facts of a very simple case but the allegations levelled by the detaining authority are against the material on record because he was not charged for offence punishable under the Arms Act, besides that the allegations stated in other grounds of detention are far from truth for which he has already been facing trial before the competent court for offences u/s. 341, 323, 504, 510 IPC. Thus according to Shri Kaushik it is a case of non consideration of all material facts appearing in the challan papers of criminal cases stated in the grounds of detention which were not considered by the detaining authority inasmuch as relevant documents and papers requested by the petitioner were not furnished by the detaining authority which has resulted in causing prejudice in preparing his defence. Shri Mohd Rafiq, the learned Additional Advocate General, appearing for the respondents authorities while opposing the contentions canvassed on behalf of the petitioner, contended inter alia that there has been consideration of sufficient material as detailed out in the grounds of detention in an elaborate manner and they have been carefully examined by the detaining authority on the basis of particulars bearing on the necessity as to the detention and therefore, both the District Magistrate so also State Government had a subjective satisfaction before issuing detention order against the detenu (petitioner ). Shri Rafiq cited the decision in Ahmed Nassar vs. State of Tamilnadu (1); Meena Jayendra Thakur vs. Union of India (2) and Phalkoo vs. State of Rajasthan
(3.) WE have heard the learned counsel for the parties and considered their rival contentions besides having perused the relevant record produced during the course of arguments. Though the petitioner has alleged that relevant documents and papers were not furnished to him by the detaining authority but curiously enough either in the writ petition or during the course of arguments, the petitioner failed to show as to which of relevant documents necessitated for preparation of his defence had not been furnished by the detaining authority. The respondents alongwith reply to the petition have produced xerox copy of the letter of the Superintendent Jail Bharatpur (Ann. R. 1) according to which the detenu was handed over original detention order alongwith grounds of detention which accompanied with other documents. In support of it, Kailash Chand Meena Dy SP Circle Deeg and Officer In-Charge of the case has filed his affidavit certifying that Annex. R/1 is exact and true xerox copy of its original. The District Magistrate Bharatpur who issued order of detention has filed his affidavit according to which copies of the order of detention, grounds of detention and supporting documents thereof were delivered to Inder (detenu) through Superintendent District Jail, Bharatpur as is evident from communication dated 13. 7. 2000 (Ann R1 filed with reply) which was sent to him, with which he had annexed duly acknowledged receipt of detenu in token of having served upon him the order of detention so also the grounds of detention. Thus in our considered view, the petitioner was accordingly handed over all supporting documents to the detention order and in token of having received those documents he had given a receipt and also acknowledged the fact that they were read over and explained to him. Though the petition has been filed in the name and title of the petitioner but curiously enough affidavit has been filed not by the petitioner, himself, but by one Randhir Singh who claims himself to be a relative of the petitioner and according to his affidavit as stated by him in para 2 thereof, the contents of para 1 to 10 with sub paras of the petition are true and correct to his personal knowledge, whereas as per para 8 (j) it is the case on behalf of the petitioner that relevant documents and papers as requested by him were not supplied by detaining authority to him and in the absence of it he could not produce his defence properly which has caused great prejudice to his case. In the absence of affidavit of the petitioner himself, and further in the presence of incompetent affidavit to the petition stating above averments, especially when through its affidavit and acknowledgment receipt of the grounds of detention accompanying with supporting documents for passing order of detention, the detaining authority has prima facie established that all relevant documents and material had been furnished to the detenu having bearing on the necessity as to his detention, therefore, we find no force in the contention of the petitioner that he was not furnished with relevant documents and papers despite his request, besides he has failed to make out his case for having caused any prejudice in producing his defence properly for non supply of documents. Shri Kaushik cited decision of the Delhi High Court (DB) in Virendra @ Kala vs. Union of India (4), wherein with regard to the detention of a person already in jail, it has been held that subjective satisfaction must be reached on some cogent material and not only on the ground that he was likely to come out on bail. It was a matter where out of six cases, in two cases he had been acquitted while four cases were still pending trial in different courts and in detention order, itself, it had been stated that there was every apprehension that very soon it released on bail in all the cases registered against him, he would again indulge in criminal activities prejudicial to the maintenance of public order. Thus it was a case where there was a possibility of the detenu being granted bail as has been stated in the detention order, itself, and placing reliance upon the decision of the Apex Court in Surya Prakash vs. State of U. P. (5), it was observed as under:- "in the grounds of detention it is stated that there is a possibility of the petitioner being granted bail. It is not enough. In Surya Prakash's case (supra) the Supreme Court emphasises that the subjective satisfaction for detaining a person already in jail must be reached on some cogent material that if he is released on bail he may again indulge in serious offences causing threat to public order, which is missing in this case. The impugned detention order on this solitary ground is liable to be quashed. " ;