(1.) Heard Sri A.K.Sachan, learned counsel for the petitioner, Sri A.S.Azmi, learned counsel for the respondent no.5/Union of India and learned AGA for the State/ respondent nos. 1 to 4.
(2.) The brief facts of this case are that while the petitioner was in Gautam Budh Nagar jail on account of his being accused in case crime no. 321 of 2014, under Sections 147, 148, 149 and 302 IPC and case crime no. 889 of 2014, under Section 25/27 Arms Act, P.S. registered at Dadri, District Gautam Budh Nagar, the petitioner was served with the impugned detention order dated 07.10.2014 passed by District Magistrate, Gautam Budh Nagar/ respondent no.1 in the exercise of his power under Section 3(3) of the National Security Act, hereinafter referred to as the NSA along with the grounds of detention under Section 8 of the NSA through Superintendent, District Jail, Ghaziabad. The detention order dated 07.10.2014 was forwarded by the respondent no.1 to the State Government along with his letter dated 07.10.2014 (Annexure -10 to the writ petition). The petitioner filed a representation before the District Magistrate, Gautam Budh Nagar, respondent no.1 on 16.10.2014 (Annexure-16 to the writ petition). The detention order was approved by the State Government by order dated 16.10.2014 (Annexure-13 to the writ petition). The representation moved by the petitioner before the District Magistrate, Gautam Budh Nagar, respondent no.1 was rejected by him by his order dated 31.10.2014 (Annexure-14 to the writ petition) which was communicated to the petitioner by the respondent no.1 along with the letter dated 06.02.2015. The State Government by its order dated 27.11.2014 approved the detention order for a period of 12 months after the same was approved by the respondent no.4/ U.P.Advisory Board.
(3.) Learned counsel for the petitioner submitted that the subjective satisfaction recorded by the detaining authority/District Magistrate, Gautam Budh Nagar, respondent no.1 in the impugned order is based upon irrelevant, insufficient and non existent grounds which has totally invalidated the same. He next submitted that the order of preventive detention passed in respect of the a detenu who is in judicial custody in order to be a valid order should disclose that the detaining authority not only should be aware of the said fact but there should be some material on record for his belief that he may be released on bail and the detenu would indulge in similar activities if set at liberty. He further submitted that since on the date of the passing of the impugned detention order, the petitioner was in jail on account of his being accused in two criminal cases, namely, 321 and 889 of 2014 registered against him at P.S. Dadri and there being no material before the respondent no.1 showing that the petitioner had moved his bail applications in both the cases, even if his bail application filed by him before the Sessions Judge, Gautam Budh Nagar in the main case i.e. case crime no. 321 of 2014 was allowed, he could not have actually come out of jail, thus the subjective satisfaction recorded by the detaining authority/respondent no.1, District Magistrate, Gautam Budh Nagar that there was strong possibility of the petitioner coming out from jail on bail and re-indulging in activities prejudicial to the maintenance of public order and tranquility was not based on any cogent and reliable material and in the absence of cogent and reliable material, the impugned detention order has to be accepted as based on mere epse dixit of the detaining authority. In support of his aforesaid contention learned counsel for the petitioner has placed reliance on a Division Bench decision of this Court rendered in the case of Radhey Shyam Parcha Vs. Union of India, 2014 3 AllCriR 2774 .