AJAY KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) R. Dayal, J. By this writ petition filed under Article 226 of the Constitution of India for a writ of Habeas Corpus, the petitioner seeks the quashing of the order of detention dated 25th August, 1995 passed against him by the District Magistrate, Aligarh, a copy of which is Annexure-2 to the petition, under sub-section (2) of Section 3 of the National Security Act, 1980, in exercise of the powers conferred upon him by sub- section (3) of Section 3 of the Act, recording his satisfaction that the detention of the petitioner was necessary to prevent him from indulging in activity prejudicial to the maintenance of public order. It is not disputed that at the time of the passing of the detention order, the petitioner was in custody under the Gangesters Act. Sri S. D. N. Singh, learned counsel for the petitioner submits that the ground for detention does not disclose that the detaining authority was satisfied that the order of detention was necessary, even when the petitioner was in custody. On the other hand, Sri Mahendra Pratap, learned Additional Government Advocate, submits that the detaining authority was satisfied that the detention was necessary for the maintenance of public order. Learned counsel for the petitioner has referred in support of his submission, Dharmendra Suganchand Chelewat v. Union of India, AIR 1990 SC 1996, where after review of a number of authories, it was held that (i) it is necessary that the ground of detention must show that the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there must be compelling reasons justifying such detention, despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be releas ed from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his rebate from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him engaging in such activities. So far as the first requirement about the awarness of the detaining authority that the detenu was in detention, this requirement is undoubtedly fulfilled in this case. The question for consideration is: can it be said that the detaining authority was satisfied on the basis of cogent material that the detenue was likely to be released from custody in near future? The grounds of detention state that the petitioner was in custody under the provisions of the Gangesters Act, that an application had already been moved before the Special Sessions Judge, Agra for his release on bail, that the possibility of the petitioner being released on bail could not be ruled out and that in case he was released on bail, there was likelihood of the petitioner again indulging in activity prejudicial to the maintenance of public order. The satisfaction recorded by the detaining authority was merely to the effect that the possibility of the petitioner being released on bail could not be ruled out. The detaining authority did not record the satisfaction that the petitioner was likely to be released on bail in the near future. In our view, the satisfaction that the possibility of being released on bail cannot be ruled out is much inferior in qualitative terms than the satisfaction that he was likely to be released on bail in the near future If the submission of the learned Additional Government Advocate is accepted and it is held that the satisfaction that the possibility of being released on bail cannot be ruled out is sufficient, then protection to the detenu to which he is entitled under the aforesaid decision of the Supreme Court, will become illusory, since in practical terms, there will be no case where it cannot be said that the possibility of the detenu being released on bail could not be ruled out.

(2.) SINCE the learned counsel for the petitioner has made out this ground for release of the petitioner, it has not been considered necessary by the learned counsel to make arguments on other grounds taken in the petition.