OJENDRA KUMAR TIWARI Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) - By this petition under a Article 226 of the Constitution, the petitioner seeks issuance of a writ of habeas corpus for release of his brother Guddu alias Pramod Tiwari who has been detained under section 3 of the National Security Act, 1980 by order of the District Magistrate, Damoh, passed on 23rd August 1982 with a view to prevent him from acting in any manner prejudicial to the public order.

(2.) The detenu was also arrested under the National Security Act and he was released on 1st March 1982 after the expiry of the period of his detention. According to the grounds of detention the detenu immediately after his release started again indulging in activities prejudicial to the public order and, therefore, his detention became again necessary. It is, however, mentioned in para 28 of the grounds that the detenu had already been arrested and was in jail at the time when the detention order was passed. Some of the offences that were alleged against the detenu were non bailable such as offences under sections 394 and 307 I.P.C. Neither the grounds of detention nor the return filed on behalf of the respondents shows as to why the District Magistrate reached the satisfaction that the detenu should be detained under the National Security Act even though he was in jail for committing various offences some of which were non-bailable. After referring to its earlier decision in Rameshwar Shaw, v. District Magistrate, Burdwan. the Supreme Court in Merugu Satyanarayana v. State of A.P.2 observed as follows. One can envisage a hypothetical case, where a preventive order may have to be made against a person already confined to jailor detained. But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detaining a preventive detention order, is still necessary. The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessary. Neither the grounds of detention nor the return discloses as to why the District Magistrate felt the compelling necessity to detain the detenu under the National Security Act when he was already in jail in connection with commission of the offences reference to which has been made above. This lends a serious infirmity in the order.

(3.) The petition is allowed. The detenu be released forthwith. Petition allowed.