Agya Ram Verma (In Jail) vs Union of India (UOI) and Others

Vishnu Sahai, J.—Through this writ petition preferred under Article 226 of the Constitution of India, the Petitioner-detenu Agya Ram Verma has impugned the order dated 25.1.2002, passed by the third Respondent Mr. Hari Ram, District Magistrate, Bahraich, detaining him u/s 3(2) of the National Security Act. The detention order along with the grounds of detention, which are also dated 25.1.2002, was served on the Petitioner-detenu on 25.1.2002 itself and their true copies have been annexed as Annexures-1 and 2 respectively to this petition.

The prejudicial activities of the Petitioner-detenu impelling the third Respondent to pass the impugned order against him are contained in the grounds of detention (Annexure-2). A perusal of the grounds of detention would show that the impugned order is founded on two C.R''s. namely, C.R. No. 382 of 1998 under Sections 504/506, Indian Penal Code of police station Kotwali Nanpara, district Bahraich and C.R. No. 493 of 2001 under Sections 147/148/149/307/302/506/115, Indian Penal Code read with Sections 3(2), 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 27(3) of the Arms Act of police station Kotwali Nanpara, district Bahraich. Since in our view, a reference to the prejudicial activities of the Petitioner-detenu contained in said C.R. is not necessary for the adjudication of the pleadings contained in paragraph 18 of the petition and those contained in grounds v. and VI of paragraph 34 of the petition, on which pleadings this petition should succeed, we are not adverting to them.

We have heard learned Counsel for the parties. In paragraph 18 of the petition it has been stated thus:

That in the next ground, it has been mentioned that the Petitioner had moved an application for bail which was pending in the Court. It has also been mentioned that there was a possibility of repeatedly committing of offence by the Petitioner in future after release on bail.

It is necessary to mention here that Petitioner''s bail application was refused by the Court of Sessions on 24.12.2001 and at the time of passing detention order, no application of his bail was pending in Sessions Court, but the police people placed a false application before the detaining authority only to obtain detention order and harass the Petitioner:

A photocopy of application placed before the detaining authority is being filed herewith and is marked as Annexure-22 to this writ petition.

In ground Nos. v. and VI of paragrahp 34 of the petition, it has been averred thus:

V. Because there is no likelihood of Petitioner''s release on bail as his application was not pending in the Court of Sessions.

VI. Because the bail application of the Petitioner was not moved in the Court of Sessions but the police persons for obtaining detention order against the Petitioner placed forged bail application before detaining authority which was not existing in any Court.

Mr. Shrawan Kumar, learned Counsel for the Petitioner-detenu urged that in the grounds of detention, the detaining authority has stated that he was aware that the detenu was detained in District Jail, Bahraich in Crime No. 493 of 2001 under Sections 147/148/149/307/302/115, Indian Penal Code read with Sections 3(2), 5 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and Section 27(3) of the Arms Act and he had filed an application for bail in the said C.R. in the competent court vide document No. 16. He urged that the said averment cannot be accepted because it has not been averred in paragraph 11 of the return of the detaining authority wherein the averments contained in paragraph 18 of the petition and grounds v. and VI of paragraph 34 of the petition have been replied to. He contended that in paragraph 11 of his return, the detaining authority has not denied that the detenu had been refused bail from the Court of Sessions on 24.12.2001 and at the time of passing of the detention order, no application for bail was pending in the Court of Sessions and instead the police had placed a false application before the detaining authority which was not existing at the time of passing of the detention order with a view to harass the Petitioner-detenu.

Learned Counsel for the Petitioner-detenu also urged that Annexure-22 to the writ petition is copy of the said false application for bail purported to have been made by the Petitioner-detenu and Annexures-23 and 23A are copies of the questionnaires filed by the Petitioner''s advocate in the Court of Sessions Judge, Bahraich and Special Additional Sessions Judge (SC/ST Act), Bahraich respectively and the reply thereto which shows that after 24.12.2001 the Petitioner-detenu had not moved any bail application in C.R. No. 493 of 2001 of police station Kotwali Nanpara district Bahraich.

As mentioned above, the averments contained in paragraph 18 of the petition and those contained in paragraphs v. and VI of paragraph 34 of the petition have been replied to in paragraph 11 of the return of the detaining authority. The said paragraph reads thus:

That in reply to the contents of paragraph 18 of the writ petition, it is stated that whatever material was submitted by the sponsoring authority before the detaining authority upon that the deponent was satisfied and there was compelling necessity to pass the detention order against the Petitioner.

We have perused the averments contained in paragraph 18 of the petition, those contained in ground Nos. v. and VI of paragraph 34 of the petition and those contained in paragraph 11 of the return of the detaining authority. As mentioned earlier, this writ petition deserves to be allowed.

It would become manifest from the averments contained in paragraph 11 of the return of the detaining authority that he has not denied the averments contained in paragraph 18 of the writ petition. In this view of the matter, the averments contained in the grounds of detention to the effect that the detaining authority was aware that the detenu had preferred a bail application in the competent court in C.R. No. 493 of 2001 of police station Kotwali Nanpara, district Bahraich cannot be accepted. Hence the detention order would be vitiated in view of ratio laid down by the Apex Court in paragraph 19 of the oft-quoted case of Dharmendra Suganchand Chelawat and another Vs. Union of India and others, , wherein it has been held that one of the pre-requisites which is necessary for detaining a person, already in custody under a preventive detention order is that there should be cogent material that the person sought to be preventively detained is likely to be released from custody in near future. We feel it pertinent to extract paragraph 19 of Chelawat''s case (supra). The said paragraph reads thus:

The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention ; and (ii) there were 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 released 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 release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.

Since the detaining authority in paragraph 11 of his return has not denied that no bail-application was moved by the Petitioner-detenu in C.R. No. 493 of 2001 of police station Kotwali, Nanpara, district Bahraich and the application attributed to have been moved by him was fictitious, what emerges is that the Petitioner-detenu did not move any bail-application in C.R. No. 493 of 2001 of police station Kotwali, Nanpara, district Bahraich after 24.12.2001. Consequently, there was no cogent material before the detaining authority in terms of Chelawat''s case (supra) on the basis of which he could have concluded that the detenu was likely to be released from custody in near future in C.R. No. 493 of 2001 of police station Kotwali, Nanpara, district Bahraich and, therefore, the impugned detention order cannot be sustained.

For the said reasons, we allow this writ petition ; quash the impugned detention order ; and direct that the Petitioner-detenu Agya Ram Verma be released forthwith from jail unless wanted in some other case.