Haroon and Anr. vs Union of India & Ors.

Petitioners Haroon and Haneef have filed this petition challenging the order dated 871999 passed separately against both the petitioners by District Magistrate, Mathura (Annexure 9 to the writ petition) under Section 3 (2) of the National Security Act, under which they have been detained.

Counteraffidavit and rejoinderaffidavits have been exchanged between the parties. Learned Counsel for the parties have agreed that this petition may be disposed of finally at this stage.

Learned Counsel for the petitioners submitted that the impugned order of detention has been passed on basis of the incident dated 2451999, which at the most cause problem of law and order, and had no potentiality to disturb the public order. It has been further submitted that satisfaction has not been recorded that there was possibility of the petitioners being released on bail. As petitioners were already in custody in case crime No. 104 of 1999 under Section 376 of IPC. There may not be any apprehension against maintenance of public order from petitioners. Lastly it has been submitted that there was delay in deciding the representation of the petitioners by the Central Government which has rendered the continued detention of the petitioner illegal.

Sri Mahendra Pratap learned AGA and Sri A.N. Pandey, learned Counsel for the Union of India have on the other hand supported the impugned orders of the detention and submitted that there was sufficient material against the petitioner that they disturb public order and commotion prevailed among the villagers which could be subsided after sustained efforts.

We have considered the submission so learned Counsel for the parties. However, we are satisfied that the petitioners are entitled for the relief on short ground that the detaining authority failed to record satisfaction with regard to the possibility of the release of petitioners from custody on bail. As both petitioners were in jail, at the time the impugned order of detention was passed against them, it was obligatory on the detaining authority to record satisfaction before passing the impugned orders, that there was likelihood of release of the petitioners on bail from judicial custody. Without recording such satisfaction the impugned orders of detention could not be passed as there could not have been any apprehension against the maintenance of public order from the petitioners, who were in jail.

A Division Bench of this Court in case of Nagendra Rai v. State of U.P., reported in 1998 (32) ALR 716:1998(1) JIC 743 (All), held that as the detaining authority did not record any satisfaction that there was likelihood of release of the petitioners on bail, the order of detention could not been passed. Language used in the grounds which formed basis for passing the impugned orders of detention in the present case, is almost similar to the language which was used in the case of Nagendra Rai. The words, are being produced below:

Against both petitioners similar language has been used. From the perusal of which it is clear that no satisfaction was recorded by the detaining authority that there was possibility of the release of the petitioners on bail, the absence of which the impugned orders of detention could not be passed against them.

The present case as squarely covered by the judgment of the Division Bench in Nagendra Rai''s case (supra). As writ petition deserves to be allowed on this ground, it is not necessary for us to inter the other submissions made by learned Counsel for petitioners.

For the reasons given above this petition is allowed. The impugned orders

of detention dated 871999 passed against both petitioners are quashed. Respondents are directed to set the petitioners at liberty forthwith if their detention is not required in any other case.