Pramod Yadav vs The State of Bihar and Others

The petitioner has filed this writ application for quashing initial order of detention dated 29.7.2000 passed under the National Security Act, Annexure-3, and also the final order dated 5.10.2000 confirming the order, Annexure-3, for a period of one year, Annexure-6. The petitioner is a citizen of India. He was made accused in Sahebpur Kamal P.S. Case No. 114/99 u/s 25(1)(A) and 26 of the Arms Act, and also in Sahebpur Kamal P.S. Case No. 115/99 dated 14.8.1999 for the offence u/s 302 of the Indian Penal Code and also u/s 27 of the Arms Act. He was in jail with effect from 14.8.1999 and his prayer for bail has been rejected up to the High Court. On 29.7.2000 initial order of detention under the National Security Act was passed by the District Magistrate, Begusarai, respondent no.3, stating therein "I am satisfied that with a view to prevent Pramod Yadav, son of Basudeo Yadav, resident of village Rajapura, P.S. Sahebpur Kamal, District Begusarai from the action in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained". Accordingly, order was passed that the petitioner be detained in Begusarai jail. The grounds of detention were served to the petitioner on 31.7.2000 while he was in jail. The petitioner filed representation against the detention order on 28.8.2000, Annexure-5, which was rejected on 13.9.2000. However, initial order of detention was confirmed vide order dated 5.10.2000 and the petitioner was ordered to be detained for a period of one year, Annexure-6.

The orders, Annexures-3 & 6 have been challenged on the ground that on the day of passing of the order, Annexure-3, the petitioner was in jail but there is nothing either in the order or in the affidavit to show that detaining authority, respondent no.3, was aware of the aforesaid fact nor there is any material on the record to show that the detenu/petitioner was likely to be released from the jail custody and as such the order of detention has been passed without application of mind which is bad in law. The order has also been challenged on the ground that representation of the petitioner was disposed of after much delay and the ground of detention is belated one.

A counter-affidavit has been filed on behalf of respondent no.3. The affidavit was sworn by one Executive Magistrate and not by respondent no.3. It has been stated in the affidavit that petitioner is veteran criminal. His activities were prejudicial to maintenance of public order. Respondent no.3 has passed the order on the ground furnished by the Superintendent of Police, Begusarai after being satisfied. The petitioner filed the representation through jail Superintendent on 25.8.2000 on which the District Magistrate made comment and it was rejected on 13.9.2000. The order of detention is legal.

On consideration of the materials on record and submission of the learned counsel for the parties it is evident that the petitioner was in jail since 14.8.1999 and his prayer for bail was rejected up to the High Court. The detention order, Annexure- 3, was passed after about a year of lodging of the First Information Report i.e. Sahebpur Kamal P.S.Case No. 115/99 dated 14.8.1999. There is no reference of any report of the Superintendent of Police in the order, Annexure-3 nor there is anything to show that detaining authority, respondent no. 3, was aware of the fact that the petitioner is in jail and is likely to be released and as such detention order is necessary. In the counter-affidavit a vague statement has been made that respondent no. 3 has passed the order of detention on the grounds furnished by the Superintendent of Police and after being satisfied. In fact there is nothing in the counter-affidavit to show that the fact that the petitioner was in jail was brought to the notice of the detaining authority at the time of passing the order of detention nor there is anything in the order or in the counter-affidavit to show that petitioner was likely to be released from the jail.

In the case of Devi Lal Mahto vs. State of Bihar & anr., 1983 P.L.J.R.22 (S.C), the Apex Court has held that subjective satisfaction of the detaining authority must disclose his awareness of the fact that the person against whom the detention order is proposed to be made is already in jail and yet an order of his preventive detention is necessary. The detention order must show on the face of it that the detaining authority was aware of the fact. In absence of the aforesaid awarness the detention order would be invalid as it has been made mechanically and would suffer from vice of non-application of the mind.

In the case of Binod Singh Vs. District Magistrate, Dhanbad, Bihar and Others, the detenu was in jail at the time of service of the order. The Apex Court came to the conclusion that if a person is in custody and there is no imminent possibility of being released the power of detention should not ordinarily be exercised. There must be cogent materials before the detaining authority that the detenu is likely to be released. The inference must be drawn from the available material on the record and accordingly held the detention illegal on the ground of non-application of mind to the relevant factors even if the detention is otherwise found to be justified. The aforesaid proposition has also been reiterated in the case of Amritlal & ors. vs. Union Government through Secretary, Ministry of Finance & ors., 2000 (7) SC 584.

However, learned counsel for the respondents relied upon a decision in the case of Meena Jayendra Thakur Vs. Union of India and Others, in which it has been held that since in the counter-affidavit it was indicated that the fact that detenu was in custody was brought to the notice of detaining authority and he considered all relevant materials including the fact that there may be possibility of detenu being released on bail, the order of detention does not require to be interfered with. In the instant case it has already been stated that in the order of detention there is nothing to show that detaining authority was aware of the fact that detenu was in jail and he is likely to be released nor in the counter affidavit any specific averment has been made that the fact that the detenu is in jail and is likely to be released was brought to the notice of detaining authority. Therefore, on consideration as discussed above the decision in the case of Mina Jai Chandra Thakur (supra) relied upon by the learned counsel for the respondents is not applicable to the facts and circumstances of the instant case. The petitioner has also raised other questions but those questions are not required to be dealt with in view of the fact that the ratio decided in the case of Devi Lal Mahto (supra), Binod Singh (supra), and Amritlal (supra) is fully applicable in the facts and circumstances of the instant case. Thus on consideration as discussed above, it is evident that the order of detention is invalid as it has been passed mechanically and is suffering from vice of non-application of mind. Accordingly, this application is allowed. The orders, Annexures-3 & 6, are hereby quashed but without cost.