SUSHIL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Sri R. K. Awasthi and Sri R. K. Jain for the petitioner and Sri Mahendra Pratap, learned AGA, for State.

(2.) Through this writ petition under Article 226 of the Constitution of India the petitioner had prayed for a writ or order or direction in the nature of Habeas Corpus for his production before the Hon'ble Court and for his being set at liberty from detention under the National Security Act (for short the Act). The petitioner was detained under an order of the District Magistrate, Haridwar, dated 21-5-97 in exercise of its powers under Section 3 (2) read with Section 3(3) of the Act for preventing him to act in a manner prejudicial to the maintenance of public order.

(3.) Certain dates are relevant for a decision on the present petition. The order of detention was passed against him on 21-5-97 and he was served with the grounds of detention along with the detention order. A copy of the detention order is annexed to the writ petition as annexure-1, and the grounds therefor are there in annexure-4 to the writ petition. The order of detention was confirmed by the State Government on 30-5-97, as per document in annexure-2 to the writ petition. The matter was referred to the Advisory Board and the report of the Advisory Board was accepted on 11-7-97. The present writ petition was filed on 31-7-97. It was stated that the petitioner was already in jail in connection with case Crime No. 81 of 1997 for different offences including one under Section 302 IPC relating to P. S. Laksar, District Haridwar. The grounds of detention were supplied to him in jail. The District Magistrate had acted upon the report of the senior Supdt. of Police, Haridwar and the Deputy Supdt. of Police and lower police officers, as per annexures 5, 6 and 7 to the writ petition. It was stated that the District Magistrate had accepted the recommendations mechanically and had not applied his mind at all. After recording the detention order the District Magistrate wrote to the Home Secretary, Govt. of Uttar Pradesh on that very date for confirming the order of detention and this letter of the District Magistrate was annexed as annexure-8 to the writ petition. A representation was made by the petitioner on 4-6-97 which, according to the petitioner, was pending on the date of presentation of the writ petition and a copy of the representation was annexed as annexure-9. A representation was also made to the State Government on 4-6-97 itself and a copy of that representation was annexed as annexure-10 to the writ petition. It was contended by the petitioner that two other persons were also detained by the District Magistrate on identical grounds by passing order of detention on the same day (21-5-97). Upon their representation to the State Government, these persons, Ram Kumar and Rakesh, were released. It was urged that five accused persons including the petitioner and the aforesaid Ram Kumar and Rakesh were released on bail by an order of the IInd Addl. Sessions Judge, Haridwar, by his order dated 23-7-97 and the bail order was annexed as annexure-11 to the writ petition. It was contended by the petitioner that the detaining authority was informed that the petitioner was in jail and was likely to be released on bail and, if so released, he would indulge in same activities affecting public order, but there was no material on record before the detaining authority to come to such a conclusion. It was also contended that even if the criminal case against the petitioner was taken to be true, it was not a ground by itself to invoke the provisions of the Act as the detaining authority had no material before it to conclude that in case the detenu came out of Jail, he would again indulge in serious offence causing threat to public order. In the petition itself, reference was made to certain decisions of the Supreme Court on this point. Reliance was also placed the decision in the case of Rajiv Bharti to say that the allegations in the FIR and the impact of the alleged offence upon the public could at best be a question of disturbance of law and order. It was contended further that as the detenu was in jail, the mere possibility of his release would not have given a tool to the District Magistrate for initiation of a proceeding for preventive detention as materials should have been there to justify an apprehension that the detenu would, after his release, indulge in activities prejudicial to the maintenance of public order.