DABA ALIAS SUDARSAN DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this habeas corpus petition the petitioner has challenged the order of detention and the grounds of detention passed against him under the provisions of the National Security Act, 1980 (hereinafter referred to as the 'said Act'). The order of detention under Sub -section (2) of Section 3 of the said Act is dated 31.7.2006 and the ground of detention in support of the said order is dated 5.8.2006. There are several grounds in support of the said order of detention.

(2.) THIS Court is not going into the merits of those grounds in detail since this Court is of the opinion that this habeas corpus petition is entitled to succeed on a short point taken by the learned Counsel for the petitioner. Learned Counsel for the petitioner urged that though several criminal cases have been referred to in the grounds of detention, but there is no recital in the grounds of detention to the effect that the petitioner's bail application in B. Town P.S. case No. 150 of 2006 is going to be allowed. In other words, there is no satisfaction of the detaining authority on the ground that the petitioner is likely to come out on bail on the basis of a bail order which is likely to be passed in the aforesaid case. The only recital which has been made in this connection is that the hearing of the bail application is going to take place on 3.8.2006. But the detention order was passed on 31.7.2006.

(3.) WE have found that the Supreme Court detailing with similar contention in the case of Binod Singh v. District Magistrate, Dhanbad, Bihar and Ors. : 1986CriLJ1959 , held in paragraph 7:.If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case, when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order.. However, in the case of Binod Singh, there was some statement that the petitioner is likely to be enlarged on bail. In the instant case, even that statement is not there. Despite the aforesaid statement in the case of Binod Singh, Hon'ble Supreme Court has quashed the detention order for the reasons which are extracted above.