Nagendra Rai alias Narendra Rai vs State of U.P. and others

S. K. Phaujdar, J.—Through this petition under Article 226 of the Constitution of India, the petitioner challenges his detention under an order dated 24.4.97 recorded by District Magistrate, Azamgarh, u/s 3(2) of the National Security Act (for short, the N.S.A.). His continued detention under the said provision is also challenged and a prayer has been made for quashing the order of detention and for a direction for his release forthwith.

The order in question was recorded by the District Magistrate. Azamgarh, on 24.4.1997 which stated that it was necessary for the prevention of acts prejudicial to public order to detain the present petitioner in custody under the N.S.A. of 1980. The detention order was appended with the grounds of detention (Annexure-2 to the writ petition). It was stated therein that on 19.4.1997 at about 7 p.m. the applicant had taken out the licensed gun of his brother and had gone to the house of Ram Samajh due to some old enmity over fishing. It was stated that the petitioner had shot dead the wife of Ram Samajh and had also seriously injured her son. As a consequence, the public in general felt panicky and a situation was created affecting public order. It was stated that the people started fleeing their house in fear. In page 3 of the grounds, it was stated that the applicant was in jail at Azamgarh on 24.4.1997. There was possibility of a bail application being filed by him and there was further possibility that after his release, he would Indulge in activities prejudicial to the maintenance of public order.

Although a question was raised whether the act complained of would be one merely affecting law and order and not affecting public order, the main point on which the application was pressed was lack of satisfaction on the part of the District Magistrate on the four points necessary for detaining a person under a preventive detention Act while he is already in custody.

If a person is already in custody, the District Magistrate must be satisfied on four factors, (1) that the petitioner is in custody, (2) that he is taking steps for getting out of custody on bail, (3) that there is likelihood of his getting bail and (4) there is an apprehension that once out on bail, he would repeat such activities which may prejudice maintenance of public order. The language of the grounds as indicated in page 3 of Annexure-2 prima Jade do not indicate the second and third factors, as Indicated above. Learned A.G.A. drew my attention to the affidavit of Hari Sharan Singh who was the District Magistrate. Azamgarh at the relevant time and was the Special Secretary. Milk Development under the Government of U. P. at the time of swearing the counter-affidavit. In Para 9 of the counter-affidavit, the District Magistrate asserted that he had considered the reports of the sponsoring authorities in which it was clearly mentioned that the petitioner was in jail, he was trying to be released, there was every possibility of his being so released and he would repeat his activities prejudicial to the maintenance of public order.

The satisfaction of the District Magistrate is a subjective one and it should be present on the date of recording the order and it should be reflected in the grounds that are supplied to the detenu for the purpose that he might make a proper representation as is guaranteed to him under the Constitution. The satisfaction mentioned in the affidavit could not replace a satisfaction that is required to be indicated on the date of recording the detention order. The grounds do not indicate that the applicant had applied for bail, rather it was indicated that there was likelihood of presentation of a bail application on his behalf. This satisfaction was not sufficient to record the order of detention. Even though the claim in the affidavit is admitted that the District Magistrate on a consideration of the report of the sponsoring authorities, was satisfied that the petitioner was trying to be released on bail, that fact and that satisfaction was not indicated in the grounds. Moreover, there is nothing in the grounds to indicate that the District Magistrate was further satisfied that there was likelihood of his being released on ball. The language used was :

"Is boat ki puri sambhavna hai ki aap jamanat par chhutne ke baad lok vyavastha ko kuprabhavit karne wali gatividhiyon mein bhaag leinge."

Translated into English, these lines would mean, "there is every possibility that once you are released on bail, you will indulge in activities prejudicial to maintenance of public order". There is no satisfaction indicated in the grounds that the District Magistrate felt that there was likelihood for him to be released on bail. The likelihood was in respect of further activities of the petitioner.

Learned State Counsel referred to a decision of the Supreme Court in the case of Kamarunnissa and Others Vs. Union of India and another, , in which the detaining authority had indicated in the grounds that the offence was ''bailable'' and there was every possibility of the detenu to come out on bail although in reality the offence was a non-bailable one. On the facts given out in the affidavit, the Supreme Court had found that the mere mention of the term ''bailable'' for the connected offence did not affect the detention order as the satisfaction of the detaining authority was there on the basis of bail applications moved for the co-accused persons and there was a real likelihood of the applicant being released on bail. The explanations that had come in this case are there in Para 9 of the affidavit of the District Magistrate. If at all he was satisfied subjectively on the four points that had been Indicated in that Para, there was no reason not to indicate them in the grounds and to indicate something else therein. In our view, the detention order is bad for non-disclosure of proper grounds and must be quashed. The question whether the situation gave rise to disturbance of law and order or public order need not be discussed in view of our finding, as above.

In the result, the writ petition stands allowed. The detention order dated 24.4.1997 passed against the petitioner u/s 3(2) of the N.S.A. by the District Magistrate. Azamgarh is quashed. He shall be released from custody forthwith unless required to be detained in any other case.