Sukhdeo Singh vs District Magistrate and Others

S.H.A. Raza and R.P. Nigam, JJ.—No doubt, a person can be detained u/s 3(2) of the N.S.A. provided there was an imminent possibility of his being released. In the instant case, it has been specifically averred that the application for grant of the bail of the Petitioner in Case Crime No. 411 of 1999, u/s 2/3 of the U.P. Gangsters Act was already rejected on 24.1.2000 by the learned Special Judge (Gangsters Act), Lucknow. From the date of the rejection of the aforesaid bail on 24.1.2000 upto the period of passing of the impugned order of detention dated 14.2.2000, the Petitioner has neither applied for bail nor sought any bail under any crime number of the case or any such bail application was pending for consideration before any court of law.

In para 8 of the counter-affidavit filed by the District Magistrate concerned, it has been averred that the contents of the paras 5 to 9 of the writ petition relate to the bail application moved by the Petitioner and order passed on it. It is further stated that the efforts were being made for the release of the Petitioner and the deponent on the basis of the material placed before him to the effect that the Petitioner was in jail, and further that the efforts were being made for his release on bail was placed and the deponent felt satisfied that there was likelihood of the Petitioner being released on bail. The deponent after the said satisfaction passed detention order against the Petitioner. The assertions made by the Petitioner to the contrary in the paragraphs under reply are not admitted in view of what has been said hereinbefore.

In view of what has been said, hereinabove, we are of the view that the averment that there was material on the record to arrive at the satisfaction that there was likelihood or the possibility of the Petitioner being released on bail, is based on extraneous consideration. It appears that the subjective satisfaction arrived at by the District Magistrate concerned that the detenu was likely to be released, was based on extraneous materials.

The contention of the learned Government Advocate that even if no application for grant of bail was pending before any court of law, but if the efforts were being made for the release, the satisfaction of the District Magistrate to arrive at a conclusion that the detenu was likely to be released, cannot be assailed in a writ petition, is totally misconceived. Hence, the order of detention is totally vitiated. The writ in the nature of habeas corpus is accordingly allowed.

The writ petition succeeds. The order of detention dated 14.2.2000 passed by District Magistrate, Lakhimpur-Kheri, is accordingly quashed. The Petitioner shall be set at liberty forthwith, if not wanted in any other case.