Allahabad High Court
Bhupendra vs Union Of India And 3 Others on 24 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 2478
Bench: Manoj Misra, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- HABEAS CORPUS WRIT PETITION No. - 799 of 2019 Petitioner :- Bhupendra Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Anurag Yadav, Avanish Kumar Pandey, Mahendra Pratap Counsel for Respondent :- A.S.G.I., G.A., Jitendra Prasad Mishra Hon'ble Manoj Misra,J.
Hon'ble Pankaj Bhatia,J.
We have heard Sri Mahendra Pratap, assisted by Sri Anurag Yadav, Sri Avinash Kumar Pandey and Sri Chaman Lal Chaudhary, for the petitioner; Sri Jitendra Prasad Mishra for Union of India; Sri Deepak Mishra, learned AGA for the respondents no. 2, 3 and 4; and have perused the record.
The instant petition seeks quashing of the detention order dated 06.06.2019 passed by the District Magistrate, Gautam Budh Nagar in exercise of his power conferred upon him by sub-section (3) of section 3 of the National Security Act, 1980 (in short the 'Act 1980') read with sub-section (2) of section 3 thereof. The petition also challenges the order of confirmation as well extending the period of detention from three months to six months starting from the date of detention with a prayer that the petitioner be set at liberty.
Before we proceed to notice the grounds of detention, we may observe that from a perusal of paragraphs 3 and 14 of the return filed by the Jailor, District Jail, Gautam Budh Nagar it appears that while the petitioner was confined in District Jail, Gautam Budh Nagar, pursuant to judicial orders of remand passed in connection with six cases, namely: (i) Case Crime No. 52 of 2019 under section 25/ 27 Arms Act, P.S. Knowledge Park, Ghaziabad; (ii) Case Crime No.977 of 2015 under section 307, 353 IPC, P.S. Kasna, District Gautam Budh Nagar; (iii) Case Crime No.247 of 2018, under sections 430, 379, 411, 447 IPC and section 3 of Public Property Prevention of Damages Act, P.S. Knowledge Park, District Gautam Budh Nagar; (iv) Case Crime No.264 of 2018, under sections 2/3 Gangsters Act, P.S. Knowledge Park, District Gautam Budh Nagar; (v) Case Crime No.20 of 2019, under sections 147, 148, 149, 364, 302, 323, 504, 506 IPC, P.S. Knowledge Park, district Gautam Budh Nagar; and (vi) Case Crime No.50 of 2019, under sections 147, 148, 149, 186 188, 332, 353 I.P.C., P.S. Kowledge Park, District Gautam Budh Nagar, he was served with the impugned order of detention. The return reveals that till the date of swearing the return, which is 20th September 2019, the petitioner apart from being detained under the provisions of the Act, 1980 is in judicial custody in six cases mentioned above. The grounds of detention served upon the petitioner though, in paragraph 6 enumerates the criminal history of the petitioner of 16 cases but, in paragraph 10 thereof, awareness of the petitioner being in jail is with respect to only three of those six cases, namely, case crime no.264 of 2018 (supra); case crime no.20 of 2019 (supra); and case crime no.247 of 2019. That apart, satisfaction that the petitioner is likely to be released on bail has been drawn by observing that the petitioner has been granted bail in case crime no.247 of 2018 (supra) and has applied for bail in case crime nos.20 of 2019 and 264 of 2016 wherein dates have been fixed for their consideration. Even the report of the S.S.P. Gautambudh Nagar, dated 04.06.2019, at page 43 of the paper book, discloses that the petitioner is currently incarcerated in only three cases, which is in direct conflict with the statement made by the Jailor in his return as noticed above. Thus, it is clear that the detaining authority at the time of passing the detention order and formulating the grounds of detention was not aware that the petitioner is in under detention in three other cases also. Moreover, no satisfaction has been recorded by him with regard to likelihood of the petitioner being released on bail in those three cases.
Coming to the grounds of detention, a perusal thereof would reveal that satisfaction to detain the petitioner under section 3(2) of the Act, 1980 has been drawn on the basis of petitioner's activity of illegal sand mining from Yamuna river bed with reference to case crime no.247 of 2018 by referring to past criminal history of the petitioner which discloses, that apart from other offences, there were cases registered against the petitioner in the past also in respect of illegal mining. However, the main ground is with reference to the activity of the petitioner that gave rise to case crime no.247 of 2018 (supra), dated 11.07.2018.
The allegation in the grounds of detention is that on 11.7.2018, the employees of the Irrigation Department had found that at a distance of 15.800 kilometer from the embankment, which has been made to protect Noida region from the flood water of river Yamuna, an artificial embankment, by dumping mud, has been made by sand mafia on the river bed to carve out a road to carry out illegal sand mining operations from the river bed, which had the disturbed the flow of the river thereby diverting the river flow and allowing stagnation of water. It is alleged that this illegal check on the even course of the river water has potential to disturb the ecology of the river system, its flora and fauna, and may even spread diseases and thereby disturb the public order. It is alleged that the petitioner with his father has been involved in such activity and because of their strong hold and past antecedents no body dares to report against them or be a witness against them, therefore, as the petitioner is currently in jail in three cases, out of which he has obtained bail in case crime no.247 of 2018 and has applied for bail in the remaining two cases mentioned above, and there is likelihood that he would be released on bail and repeat such activity, with a view to prevent him from repeating such act, which has potentiality to disturb public order, his detention under the Act was considered necessary.
The learned counsel for the petitioner has submitted that the grounds of detention nowhere alleges that the illegal mining on the river bed was being done by challenging the police authorities or the officials of the Mining Department. It has been argued that although it has been narrated that the alleged illegal mining had the potential to cause floods, spread of diseases but there is nothing in the grounds of detention which may reflect that any such event actually occurred. It has also been argued that the grounds of detention enumerates the past criminal history of the petitioner but the relevant details of those cases such as the current status of those cases, the FIR of those cases, bail orders, etc have not been supplied. Hence, there is suppression of relevant material. It has also been urged that the petitioner was in jail in connection with six cases but, while recording satisfaction that there is likelihood of the petitioner being released from jail, awareness of incarceration in respect of three cases only has been shown and no awareness of his incarceration in three other cases has been shown. This has vitiated the satisfaction due to non application of mind on relevant material. It has also been urged that copy of the bail application and the bail order passed in respect of case crime no.247 of 2018 has not been placed before the detaining authority, which was a relevant material, and, therefore, the satisfaction has vitiated for non consideration of relevant material. In a nutshell, the points placed by the learned counsel for the petitioner to assail the order of detention can be summarized as follows:
(a) The illegal mining activity of the petitioner referred to in the grounds of detention does not have the potential to disturb public order as is the case taken inasmuch as it is a mere breach of law and order for which detention under the Act, 1980 is not justified. More so, when only apprehension of disturbance of the ecological system is expressed and not that it was actually disturbed.
(b) The grounds of detention reflects that the petitioner has a criminal history of 16 cases but neither the relevant documents / materials with reference to the narrated criminal history have been provided nor the current status of those cases have been disclosed, particularly, when several of the cases mentioned were over five years old and were therefore stale.
(c) The detaining authority has shown awareness with regard to incarceration of the petitioner in Case Crime Nos. 264 of 2018; 20 of 2019; and 247 of 2018 (in respect of which bail order had already been passed), whereas from the counter filed by the Jailor it transpires that at the time of passing and issuance of the order of detention, since much before, the petitioner was incarcerated in District Jail, Gautam Budh Nagar in connection with three other cases also. Lack of awareness in respect of incarceration of the petitioner in three other cases and non-recording of satisfaction with regard to the petitioner's likely release on bail in those three other cases also, has vitiated the detention order as there, therefore, existed no real possibility that the petitioner was likely to be released from jail in near future and indulge in activity prejudicial to the maintenance of public order.
(d) That the bail application and the bail order in respect of case crime no.247 of 2018, which was relevant material as it contained the defence of the petitioner, has not been supplied to the detaining authority hence the subjective satisfaction is vitiated for non-application of mind on relevant material.
(e) That on similar grounds an order of detention was passed against the father of the petitioner, namely, Sanjay Chaudhary, on 28.8.2018, which was challenged by him through Habeas Corpus Petition No. 4024 of 2018, which was allowed on 11.4.2019, after exchange of affidavits, but the District Magistrate has not been apprised by the sponsoring authority that the detention of co-accused, Sanjay Chaudhary, has been set aside, therefore, the satisfaction of the District Magistrate stands vitiated for non-application of mind on relevant material.
Per contra, Sri Deepak Mishra, learned AGA, who has appeared on behalf of the respondents no. 2, 3 and 4, and the learned counsel for the Union of India, submitted that the grounds of detention are referable to breach of public order inasmuch as the activity of the petitioner had the potentiality to disrupt the ecology of the river system resulting in flood, stagnation of water, disruption of supply of potable water and spread of diseases, therefore the activity of the petitioner affects the community at large. Hence, the District Magistrate was legally justified in taking a decision to pass an order of detention to prevent the petitioner from indulging in activity prejudicial to the maintenance of public order.
It has been contended on behalf of the state respondents that the past criminal antecedents have been enumerated to demonstrate that the petitioner has propensity for such illegal mining activities and is likely to repeat the same on being released whereas for the purposes of taking decision to impose order of detention the current activity of the petitioner in connection with case crime no.247 of 2018 has been taken into account which by no means can be considered stale.
Sri Mishra further contended that the order of detention passed against the father of the petitioner was not set aside on merits but on the ground that there had been delay in consideration of the representation submitted by the detenu therefore continued detention of that petitioner was rendered illegal. Hence, the same was not a relevant material.
In respect of petitioner's counsel submission that the detention order is vitiated because no awareness has been shown that the petitioner was already in jail in three other cases, the learned AGA submitted that the district magistrate has shown awareness that the petitioner is in jail and that there is likelihood of his being released on bail therefore the detention order would not vitiate even if he has not recorded satisfaction in respect of three other cases.
In respect of non-supply of copy of bail order and bail application of the petitioner in case crime no.247 of 2018 it has been submitted that as to how the said bail application and bail order was relevant has not been demonstrated and therefore nothing much turns on that.
We have given thoughtful consideration to the rival submissions and perused the record carefully.
From a perusal of the record, we find that the Case Crime No. 247 of 2018, which has been made basis for passing the order of detention, was registered at the instance of Dheeraj Kumar, Sinch Pal, an employee of the Irrigation Department. The FIR of that case was lodged on 12.7.2018 against unknown person. The allegation in the FIR is to the effect that for the purposes of providing protection to the area (Noida) from the water of river Yamuna, a dam has been put at Yamuna Doab near Hindon river. At a distance of about 15.800 kilometer from that dam, near Village Tilbara, illegal sand mining was being carried out. The FIR alleges that a pavement was made on the river bed to carry out mining operations which had affected proper flow of the river. In the FIR, it is alleged that unknown persons use the pavement for mining in the night hours though no mining machine was seen during day hours.
In the grounds of detention it has been stated that during investigation it was found that these mining operations were carried out by the petitioner in association with his father and others in an organized manner with the help of machines and excavators and the operations were so large scale that the river flow was affected thereby causing serious threat to the ecology and the river system. Though it may not have been shown that this activity was accompanied by act of violence but there is subjective satisfaction shown with regard to serious ecological impact which had the potentiality to affect the community at large. In State of T.N. v. Kethiyan Perumal, (2004) 8 SCC 780, the apex court had approved the detention order where it was passed on the ground that large scale illegal felling of sandalwood trees was impacting the ecological system which had the potentiality to disturb the public order. In the instant case, it is not illegal sand mining alone but also diversion of the river stream for that end. Such activity, in our view, would have the potentiality to disturb the public order as it would affect the life of the community at large by exposing them to the threat of floods, breeding of mosquitoes in stagnant pool of water, contamination of water resources resulting in spread of diseases, etc. We may observe that power to detain a person under section 3(2) of the Act, 1980 can be exercised to prevent a person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. As the object of the Act, 1980 and its provisions is to prevent an act prejudicial to the maintenance of public order or security of State or supplies and services essential to the community, and not to punish for its breach, once satisfaction is recorded that a person's activity has the potentiality to prejudice the maintenance of public order, power under section 3 (2) of the Act, 1980 can lawfully be exercised notwithstanding whether any substantial damage to the river system and its ecology had actually taken place or not. Under the circumstances, the contention of the learned counsel for the petitioner that petitioner's activity was not at all referable to the grounds on which a detention order could be passed under the Act, 1980 is rejected.
However, we find merit in the points (c) and (d) raised by the petitioner's counsel, as culled out above. But before we proceed to disclose the reasons as to why those grounds have appealed to us, it would be useful for us to examine the law as to when a preventive detention order can be passed against a person who is already in jail in connection with some case. The law as to when a preventive detention order can be passed in respect of a person who is already in jail started developing from the observations made by a Constitution Bench of the Apex Court in the case of Rameshwar Shaw v. D.M. Burdwan, AIR 1964 SC 334. In Rameshwar Shaw's case (supra), the apex court held as follows:
"13. The question which still remains to be considered is: can a parson in jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? In dealing with this point, it is necessary to State the relevant facts which are not in dispute. The petitioner was arrested on January 25, 1963. He has been in custody ever since. On February 15, 1963 when the order of detention was served on him, he was in jail custody. On these facts, what we have to decide is: was it open to the detaining authority to come to the conclusion that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner when the petitioner was locked up in jail? We have already seen the logical process which must be followed by the authority in taking action under Section 3(l)(a). The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner. If the said material appears satisfactory to the authority, then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention. If this question is answered against the petitioner, then the detention order can be properly made. It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(1)(a), and this basis is clearly absent in the case of the petitioner. Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by Section 3(1)(a) and is outside its purview. The District Magistrate, Burdwan who ordered the detention of the detenu acted outside his powers conferred on him by Section 3(1)(a) when he held that it was necessary to detain the petitioner in order to prevent him from acting in a prejudicial manner. That being so we must hold that Mr Garg is right when he contends that the detention of the petitioner is not justified by Section 3(1)(a)."
(Emphasis Supplied) Following the decision rendered in Rameshwar Shaw's case (supra), in Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : 1986 SCC (Cri) 490, in absence of recording of satisfaction by the detaining authority, either in the grounds of detention or the order of detention, with regard to the detenu being already in jail and that there was imminent possibility of his being released on bail, a two-judges Bench of the Apex Court scrutinized the affidavit filed by the District Magistrate to find out whether there existed any satisfaction in that regard. Upon finding that there existed none, the apex court quashed the order of detention. The relevant portion of the judgment is extracted below:
"5......From the affidavit of the District Magistrate it does not appear that either the prospect of immediate release of the detenu or other factors which can justify the detention of a person in detention were properly considered in the light of the principles noted in the aforesaid decision and especially in the decisions in Rameshwar Shaw v. District Magistrate, Burdwan and Ramesh Yadav v. District Magistrate, Etah, though there was a statement to the effect that the petitioner was in jail and was likely to be enlarged on bail. But on what consideration that opinion was expressed is not indicated especially in view of the fact that the detenu was detained in a murder charge in the background of the fact mentioned before. His application for bail could have been opposed on cogent materials before the court of justice.
6. In this case there were grounds for the passing of the detention order but after that the detenu has surrendered for whatever reasons, therefore the order of detention though justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified.
7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. 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. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens. In the affidavits on behalf of the detaining authority though there are indications that transfer of the detenu from one prison to another was considered but the need to serve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration.
8. .......................
9. The order of detention, therefore, is set aside....."
(Emphasis Supplied) In N. Meera Rani v. Govt. of T.N., (1989) 4 SCC 418 : 1989 SCC (Cri) 732, a three-judges Bench of the Apex Court in paragraphs 22 and 23 of the judgment, as reported, observed /held as follows:
"22. We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position.
23. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail."
(Emphasis Supplied) In Kamarunnissa v. Union of India, (1991) 1 SCC 128 : 1991 SCC (Cri) 88, a two-judges Bench of the Apex Court, after going through the earlier decisions including the decision in Rameshwar Shaw's case (supra), observed and summarized the legal principles as follows:
"12. In Vijay Narain Singh this Court stated that the law of preventive detention being a drastic and hard law must be strictly construed and should not ordinarily be used for clipping the wings of an accused if criminal prosecution would suffice. So also in Ramesh Yadav v. District Magistrate, Etah this Court stated that ordinarily a detention order should not be passed merely on the ground that the detenu who was carrying on smuggling activities was likely to be enlarged on bail. In such cases the proper course would be to oppose the bail application and if granted, challenge the order in the higher forum but not circumvent it by passing an order of detention merely to supersede the bail order. In Suraj Pal Sahu v. State of Maharashtra the same principle was reiterated. In Binod Singh v. District Magistrate, Dhanbad it was held that if a person is in custody and there is no imminent possibility of his being released therefrom, the power of detention should not ordinarily be exercised. There must be cogent material before the officer passing the detention order for inferring that the detenu was likely to be released on bail. This inference must be drawn from material on record and must not be the ipse dixit of the officer passing the detention order. Eternal vigilance on the part of the authority charged with the duty of maintaining law and order and public order is the price which the democracy in this country extracts to protect the fundamental freedoms of the citizens. This Court, therefore, emphasized that before passing a detention order in respect of the person who is in jail the concerned authority must satisfy himself and that satisfaction must be reached on the basis of cogent material that there is a real possibility of the detenu being released on bail and further if released on bail the material on record reveals that he will indulge in prejudicial activity if not detained. That is why in Abdul Razak Abdul Wahab Sheikh v. S.N. Sinha, Commr. of Police this Court held that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of actual detention and that cogent and relevant material disclosed the necessity for making an order of detention. In that case the detention order was quashed on the ground of non-application of mind as it was found that the detaining authority was unaware that the detenu's application for being released on bail was rejected by the Designated Court. In N. Meera Rani v. State of Tamil Nadu the case law was examined in extenso. This Court pointed out that the mere fact that the detenu was in custody was not sufficient to invalidate a detention order and the decision must depend on the facts of each case. Since the law of preventive detention was intended to prevent a detenu from acting in any manner considered prejudicial under the law, ordinarily it need not be resorted to if the detenu is in custody unless the detaining authority has reason to believe that the subsisting custody of the detenu may soon terminate by his being released on bail and having regard to his recent antecedents he is likely to indulge in similar prejudicial activity unless he is prevented from doing so by an appropriate order of preventive detention. In Shashi Aggarwal v. State of Uttar Pradesh it was emphasized that the possibility of the court granting bail is not sufficient nor is a bald statement that the detenu would repeat his criminal activities enough to pass an order of detention unless there is credible information and cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicially. The same view was reiterated in Anand Prakash v. State of Uttar Pradesh and Dharmendra case. In Sanjay Kumar Aggarwal v. Union of India the detenu who was in jail was served with a detention order as it was apprehended that he would indulge in prejudicial activities on being released on bail. The contention that the bail application could be opposed, if granted, the same could be questioned in a higher forum, etc. was negatived on the ground that it was not the law that no order of detention could validly be passed against a person in custody under any circumstances.
13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention."
In Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596, before a three-judges Bench of the Apex Court a question arose whether a preventive detention order can be lawfully passed against a person already in jail even if he had not applied for bail. While holding that, in certain circumstances, it can be passed, in paragraphs 8 to 11 of the judgment, the apex court observed / held as follows:
"8. It has been held in T.V. Sravanan v. State, A. Shanthi v. Govt. of T.N., Rajesh Gulati v. Govt. of NCT of Delhi, etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha v. State of W.B. wherein it has been observed: (SCC p. 209, para 34):
"34. ... where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or public order."
9. On the other hand, Mr Altaf Ahmed, learned Senior Counsel appearing for the State of Tamil Nadu, has relied on the judgments of this Court in A. Geetha v. State of T.N. and Ibrahim Nazeer v. State of T.N. wherein it has been held that even if no bail application of the petitioner is pending but if in similar cases bail has been granted, then this is a good ground for the subjective satisfaction of the detaining authority to pass the detention order.
10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.
11. In our opinion, the detention order in question only contains ipse dixit regarding the alleged imminent possibility of the accused coming out on bail and there was no reliable material to this effect. Hence, the detention order in question cannot be sustained."
In Champion R. Sangama Vs. State of Meghalay and another (2015) 16 SCC 253, the Apex Court, after following its decision in Kamarunnissa's case (supra), quashed the order of detention upon finding that the detenu was already in jail and the detaining authority had not recorded satisfaction that there was reliable material before the authority on the basis of which it would have reason to believe that there was real possibility of his release on bail. The relevant portion of the decision is found in paragraphs 14 and 15 of the judgment, as reported, and the same is extracted below:
"14. In the instant case, though the detention order and even the grounds of detention record the factum of the appellant's being in custody, no satisfaction has been recorded by the detaining authority that there was reliable material before the authority on the basis of which it would have reasons to believe that there was real possibility of his release on bail. It is not mentioned as to whether any bail application was even moved by the appellant or not, what to take out likely fate of such an application. The order is also conspicuously silent on the aspect as to whether there was any probability of indulging in activity if the appellant would be released on bail. On the contrary, we are amazed that the averments made in the counter-affidavit which are self-defeating and clinching the issue against the respondent at p. 171 Para 3 of the paper book which reads as under:
"3. I state that the submission of the learned Senior Counsel for the petitioner that the detaining authority was satisfied that there was some likelihood of the petitioner being released on bail and thereafter the detention order was passed to prevent such contingency is completely unfounded. In fact the detention order was passed on 29-1-2013 and from the detention order it no way reflects that with a view to pre-empt the petitioner from getting the bail in the pending 8 criminal cases that the detention order 2013 was passed. In fact after noticing the fact that the petitioner was arrested by the police in various unlawful activities and crimes like extortion, dacoity, kidnapping, murder and robbery with deadly weapons for ransom, for disruption of public order, etc. and being satisfied that if the petitioner is allowed to remain at large he would act in a manner prejudicial to the security of the State and shall be a constant threat to peace that the detention order was passed under Section 3(1) of the Meghalaya Preventive Detention Act, 1995."
15. We, thus, have no option but to hold that the detention order suffers from material illegality, thereby vitiating the same. This appeal is accordingly allowed, setting aside the impugned judgment of the High Court and quashing the detention order."
In the case of Union of India and Another v. Dimple Happy Dhakad (Criminal Appeal No.1064 of 2019, arising out of SLP (Cri) No.5459 of 2019, decided on 18th July, 2019, the detention under question was under the COFEPOSA Act and the detenu was already in jail in connection with an offence punishable under Section 135 of the Customs Act, 1962, for which the maximum sentence is seven years, in the context of the facts of that case, without disturbing the law already settled earlier, the Apex Court observed, in paragraph 35 of its judgment, that though in the detention orders, the detaining authority has not specifically recorded that the "detenu is likely to be released", it cannot be said that the detaining authority has not applied its mind. The Apex court in that case found that the detaining authority had noticed the antecedents of the detenues and recorded its satisfaction that detenues Happy Dhakad and Niyasar Aliyar have high propensity to commit such offences in future. The Apex Court observed in paragraph 36 of the judgment that the satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and, on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority and, when based on materials, is not to be interfered with. In that background, the Apex Court set aside the order of the High Court, which had quashed the detention order on the ground that the detaining authority had not expressly recorded a finding that there was real possibility of the detenues being released on bail.
After noticing all the above decisions, a Division Bench of this court in Habeas Corpus Petition No.437 of 2019 : Kumail v. State of U.P. & others, decided on 1.8.2019, summarized the legal position as under:
"A conspectus of the decisions of the apex court noticed above would show that the law is that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. The reason to believe that there is likelihood or real possibility of the person being released on bail must be based on cogent material and not mere ipse dixit of the authority. Such satisfaction can be drawn on the basis of reports of the sponsoring authority, the nature of the offence(s) in connection with which the detenu is in jail as also the facts and circumstances of that case including grant of bail to co-accused or general practice of courts in such matters. But once challenge is laid with regard to existence of such satisfaction, then the detaining authority in its return / affidavit must disclose existence of such satisfaction and the materials on the basis of which it has been drawn. However, if in the return it is demonstrated that satisfaction was drawn and there existed material to draw such satisfaction, the same cannot ordinarily be interfered with on the ground of insufficiency of material."
Thus, from the law noticed above, what is clear is that where a person is already in jail at the time of issuance of preventive detention order, the detaining authority must not only be aware that the person is already in jail but must, inter alia, have reason to believe on the basis of reliable material placed before it that there is a real possibility of his being released on bail. It necessarily follows that where a person is in jail in connection with many criminal cases, satisfaction that he is likely to be released on bail would have to be drawn by keeping in mind all those cases because how could one gain freedom by getting bail in one case when there are other cases also to detain him in jail. Hence, the detaining authority ought to be aware of all those cases, particularly those that relate to non-bailable offences, in connection with which the detenu is already in jail, at the time of passing/ issuance of the order of preventive detention. A fortiori, the sponsoring authority is under an obligation to provide information to the detaining authority of all those cases in connection with which the detenu is already in jail, particularly those which concern non-bailable offences, so that the detaining authority has all the material before it, at the time of passing/ issuance of detention order, to draw satisfaction whether an order of preventive detention is required or not.
In Ahamed Nassar v. State of T.N., (1999) 8 SCC 473, the apex court observed: "A man is to be detained in the prison based on the subjective satisfaction of the detaining authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the detaining authority. The sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the sponsoring authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision."
In A. Sowkath Ali v. Union of India, (2000) 7 SCC 148, the apex court had observed: "This Court has time and again laid down that the sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on its own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant."
From the law noticed above, it is clear that at the time of issuance of the detention order the sponsoring authority has to place before the detaining authority all those materials that are in its possession and are likely to affect the mind of the detaining authority whether to pass the order of detention. In absence whereof, the subjective satisfaction gets vitiated due to non-application of mind on relevant material.
In the instant case, we find from the return of the Jailor that the petitioner was under judicial custody in connection with six cases whereas, in the grounds of detention, awareness regarding detention has been shown with reference to three cases only. Moreover, from the report of the sponsoring authority also it does not appear that the detaining authority was informed that the petitioner was in jail in connection with three other cases also, as noticed above. It thus becomes clear that the information in respect of incarceration of the petitioner in three other cases was not placed before the detaining authority at the time of passing the order of detention. We may put on record that the three other cases with regard to which no awareness is shown by the detaining authority were case crime nos. 51 of 2019; 977 of 2015 (appears to be 2014 from the chart); and 50 of 2019. All these cases related to non-bailable offences. In case crime no.977 of 2014 one of the charging section was 307 IPC in which, ordinarily, bail is not for the asking. Therefore, in absence of awareness about incarceration of the petitioner in those cases also and non-disclosure of satisfaction that there is likelihood of the petitioner being released on bail in those cases also, one of the necessary conditions that must exist to enable exercise of power to detain a person already in jail, under preventive detention laws, is lacking, which, in our view, has vitiated the impugned order of detention inasmuch as it was possible that had the detaining authority been made aware that there were three more cases to prevent the petitioner from coming out of jail he might not have considered necessary to pass the order of detention. We, accordingly, accept the point (c) raised by the learned counsel for the petitioner to challenge the order of detention.
In respect to point (d) raised by the learned counsel for the petitioner to assail the detention order, we find that admittedly the petitioner was granted bail in case crime no.247 of 2018 by the time of issuance of the detention order. In paragraph 39 of the petition the petitioner has stated that neither the bail order nor copy of the bail application was placed before the detaining authority of which there is no specific denial in paragraph 28 of the counter affidavit which deals with paragraph 39 of the petition. Rather, in paragraph 28 of the counter affidavit, it is stated that since the bail application was filed by the petitioner himself therefore he is aware of its contents hence he suffered no prejudice by its non-supply to him. The said reply is neither here nor there as the petitioner had stated that the bail application and bail order, which was relevant material, was not placed before the detaining authority, but to evade a reply to the said statement an altogether different statement has been made. Thus, it can be assumed that copy of the bail application and bail order passed in reference to case crime no.247 of 2018 was not placed before the detaining authority.
Ordinarily, a bail application contains the defence of the applicant and when that gets allowed by the court, the bail application and the bail order assumes importance to demonstrate possibility of false implication. Sometimes, bail is conditional. Those conditions, at times, may be relevant as to whether, keeping in mind those conditions, a detention order is required. Hence, the apex court has held (vide M. Ahamedkutty v. Union of India, (1990) 2 SCC 1; P.U. Abdul Rahiman v. Union of India, 1991 Supp (2) 274; Rushikesh Tanaji Bhoite v. State of Maharashtra, (2012) 2 SCC 72) that, ordinarily, a bail application and bail granting order, particularly, when it is a speaking order, concerning a non-bailable offence, is a relevant material which ought to be placed before the detaining authority before issuance of the order of detention and in absence whereof the satisfaction gets vitiated due to non-application of mind on relevant material.
As we have already found that there is no specific denial to the statement made in paragraph 39 of the writ petition that the bail application and the bail order of the petitioner in reference to case crime no.247 of 2018, which was relevant, was not placed before the detaining authority, in our considered view, on this ground also, the subjective satisfaction of the detaining authority stood vitiated as it failed to take notice of the contents of the bail application and the bail order passed in favour of the petitioner pertaining to case crime no.247 of 2018.
Since we have already found that the impugned detention order got vitiated on account of withholding of relevant material / information from the detaining authority, we do not propose to examine the other two points urged by the learned counsel for the petitioner.
For the reasons recorded above, the habeas corpus petition is allowed. The impugned detention order dated 06.06.2019 and the subsequent order of confirmation and extension of the period of detention are hereby quashed. The petitioner shall be set at liberty forthwith unless wanted in any other case. There is no order as to costs.
Order Date :- 24.10.2019 Puspendra