Sohan Lal vs District Magistrate,Unnao & Ors.

Vishnu Sahai, J.—Through this writ petition, preferred under Article 226 of the Constitution of India, the petitionerdetenu Sohan Lal has impugned the order dated 2672002 passed by the first respondent, Mr. Nitishwar Kumar, District Magistrate, Unnao, detaining him under Section 3 (2) of the National Security Act.

The detention order alongwith the grounds of detention, which are also dated 2672002, was served on the petitionerdetenu on 27 72002 and their true copies are annexed as Annexures 1 and 2 respectively to the writ petition.

The prejudicial activities of the petitionerdetenu, prompting the first respondent to issue the impugned detention order against him are contained in the grounds of detention (Annexure2 to the writ petition), a perusal of which would show that the impugned detention order is founded on a solitary crime number, namely, Crime, No. 174 of 2002 under Sections 302/120B Indian Penal Code and Section 3(2)(v) of S.C./S.T. Act of Police Station Ajgain, District Unnao, registered on the basis of the complaint dated 1162002 lodged by Kamlesh Kumar.

Since in our view, a reference to the prejudicial activities of the petitionerdetenu connected with the said crime which are contained in the grounds of the detention, is not necessary for the adjudication of pleadings contained in paras 8 to 14 of the writ petition and grounds ''d'' and ''e'' of para 22 of the petition, on which alone this petition deserves to succeed, we are not adverting to them.

We have heard learned Counsel for the parties. The substance of averments contained in paras 8 to 14 of the petition and grounds ''d'' and ''e'' of para 22 of the petition is that although the bail application of the petitionerdetenu dated 1972002 was rejected by the Additional Civil Judge (Junior Division) Unnao on 207 2002 and another bail application preferred by him on 2472002 was rejected by the Additional Chief Judicial Magistrate, Unnao, the same day and at the time of passing of the detention order, no bail application preferred by the petitionerdetenu was pending in any Court, incorrect facts were placed before the Detaining Authority, which vitiated the detention of the petitionerdetenu.

Mr. Virendra Bhatia, learned Counsel for the petitionerdetenu, strenuously urged that although no bail application of the petitionerdetenu was pending on the date when the impugned detention order was passed and the grounds of detention were formulated, i.e. on 2672002, in the grounds of detention, the detaining authority has stated as follows:

Mr. Bhatia urged that a perusal of the aforesaid passage makes it manifest that the petitionerdetenu had preferred bail application in the Court on account of which he was likely to be released on bail in near future. Mr. Bhatia contended that since on 2672002 the petitionerdetenu was in custody in Crime No. 174/2002 of Police Station Ajgain and no bail application of his in it was pending in any Court, the aforesaid averment in the grounds of detention manifests nonapplication of mind on the part of the detaining authority and has vitiated the impugned detention order passed by him.

The averments contained in paras 8 to 14 of the petition and those contained in grounds ''d'' and ''e'' of para 22 of the petition have been replied to in para 9 of the return of the Detaining Authority, which reads thus:

�That in reply to the contests of paras 8 to 14 of the writ petition in which the petitioner has averred that there was no likelihood of the petitioner to be released on bail application was rejected on 2072002 was by the Addl. Civil Judge, Junior Division, Unnao and other bail application moved on 2472002 was also rejected on the same day by the Addl. Chief Judicial Magistrate, Unnao. In this regard it is respectfully submitted that the detaining authority was also aware of the fact that the petitioner in judicial custody in District Jail Unnao. The subjective satisfaction of the detaining authority about the likelihood of the petitioner to be released and go out of Jail after getting bail in Crime No. 174/02, P.C. Ajgain, Unnao is on the basis of cogent material in the Court of Addl. Civil Judge Jr. Division, Unnao. The District Magistrate is also aware of the fact that nothing prevented against the petitionerdetenue to move his bail application in Crime No. 174/02 in superior Competent Jurisdictional Court and get bail. Therefore, the subjective satisfaction is not vitiated in any manner. It is submitted that the contents of para 14 of the writ petition is not clarified by the petitioner that what incorrect fact was placed by the sponsoring authority before the detaining authority, affecting the subjective satisfaction and making detention illegal.�

Mr. S.K. Singh, learned Additional Public Prosecutor strenuously urged that although the bail applications of the petitionerdetenu were rejected on 2072002 arid 2472002 respectively but nothing prevented the petitionerdetenu from moving another bail application in the superior Court and coming out on bail. He urged that consequently the subjective satisfaction of the detaining authority to detain the detenu, vide the impugned order cannot be faulted.

We have perused the averments contained in paras 8 to 14 of the petition, those contained in Grounds ''d'' and ''e'' of para 22 of the petition and those contained in para 9 of the return of the Detaining Authority. As observed by us earlier this writ petition deserves to succeed.

The question is not whether anything prevented the petitioner detenu from preferring another bail application in a superior Court but whether the detention order is vitiated on the vice of nonapplication of mind.

In our view since no bail application of the petitionerdetenu was pending on 2672002 (the date on which impugned detention order was passed and grounds of detention was formulated), the averment in the grounds of detention to the effect that the detaining authority was aware that the detenu had preferred a bail application in a Court on account of which there was imminent likelihood of his being released on bail in near future definitely manifests nonapplication of mind on the part of the detaining authority. It is significant to point out that a perusal of the paragraph which we have extracted from the grounds of detention makes it explict that the subjective satisfaction of the detaining authority to detain the detenu was based on the premise that he had preferred a bail application in the Court in Crime No. 174/2002 of Police Station Ajgain and he was likely to be released on bail in near future. In our view since this premise was erroneous and misconceived and the detention order on the detenu was clamped because of it the subjective satisfaction of the detaining authority to preventively detain the detenu was vitiated by the vice of nonapplication of mind and the said vice has vitiated the impugned detention order.

It is significant of point out that in the grounds of the detention the detaining authority has not stated that he felt that the detenu could move an application for bail in a superior Court, as stated by him in para 9 of his return.

In the circumstances we allow this writ petition; quash and set aside the said impugned detention order; and direct that petitionerdetenu Sohan Lal be released forthwith unless wanted in some other case.