-1- [CASE NUMBER] HIGH COURT OF MADHYA PRADESH, [ENTITY] DIVISION BENCH: BEFORE HON'BLE SHRI JUSTICE HULUVADI G. RAMESH & HON'BLE SHRI JUSTICE B.K.SHRIVASTAVA Writ Petition No.25986/2018 Smt. [ENTITY] Vs. State of Madhya Pradesh & Others Shri [ENTITY], Advocate for the petitioner. Shri [ENTITY], Additional Advocate General for respondent/State. ORDER
(04.02.2019) Per : [ENTITY], J.
1. This writ petition has been filed under [SECTION] of the [ACT] on 29.10.2018 by Smt. [ENTITY], who is the wife of [ENTITY], R/o H. No.123, Near Primary School, [ENTITY], Police Station [ENTITY], District Jabalpur (M.P.).
2. The petition has been filed to challenge the detention order No.15/NSA/RDM/2018, dated 11.10.2018 passed by Collector and District Magistrate, Jabalpur in exercise of power under [SECTION] of [ACT] (hereinafter referred to as "the Act of 1980"). By the aforesaid order the District Magistrate passed the order of detention of accused for the period of three months from the date of actual detention preventing him from acting in any manner prejudicial to the maintenance of public order. ii. Detention order No.15/NSA/RDM/2018, Jabalpur dated, 11.10.2018 is quoted below in Hindi and English:-
"U;k;ky; ftyk n.Mkf/kdkjh ftyk tcyiqj e-iz- vkns'k dzekad@15@,u-,l-,-@vkj-Mh-,e-@2018] tcyiqj] fnukad 11@10@2018 1- pwafd esa Nfo Hkkj}kt] ftyk n.Mkf/kdkjh ftyk tcyiqj dks ;g lek/kku gks x;k gS fd vukosnd lwjt ;kno mQZ lksuw firk Lo- j?kqukFk ;kno mez 41 lky fuoklh e-ua- 123 izk;ejh Ldwy ds ikl xksjkcktkj Fkkuk xksjkcktkj ftyk tcyiqj e-iz- dks yksd O;oLFkk cuk;s j[kus ds izfrdwy fdlh Hkh jhfr ls dk;kZsa dks djus ls jksdus ds vfHkizk; ls mls jk"Vh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 dh mi/kkjk 2 ds v/khu fu:) fd;k tkuk vko';d gSA 2- vr,o mDr vf/kfu;e dh /kkjk 3 dh mi/kkjk 2 ds }kjk iznRr 'kfDr;ksa dks iz;ksx esa ykrs gq;s eSa Nfo Hkkj}kt] ftyk n.Mkf/kdkjh ftyk tcyiqj ,rn~ }kjk ;g vkns'k nsrk gwW fd vukosnd lwjt ;kno mQZ lksuw firk Lo- j?kqukFk ;kno mez 41 lky fuoklh e-ua- 123 izk;ejh Ldwy ds ikl xksjkcktkj Fkkuk xksjkcktkj ftyk tcyiqj e-iz- dks fu:) fd;k tkdj dsUnzh; tsy tcyiqj esa j[kk tkosA 3- ;g vkns'k vukosnd dks fu:) fd;s tkus dh okLrfod frfFk ls vkxkeh 03 rhu ekg dh vof/k ds fy;s oS/k gksxkA lgh@& Nfo Hkkj}kt ftyk n.Mkf/kdkjh tcyiqj i`"BkW- dzekad@15@,u-,l-,-@vkj-Mh-,e-@2018]tcyiqj] fnukad 11@10@2018-
izfrfyfi %& 1- iqfyl v/kh{kd] tcyiqjA 2- v/kh{kd] dsUnzh; tsy] tcyiqjA 3- mi[k.M eftLVsV xksj[kiqj ftyk tcyiqjA 4- Fkkuk izHkkjh] Fkkuk xksjkcktkj tcyiqjA Nfo Hkkj}kt ftyk n.Mkf/kdkjh tcyiqj" "COURT OF THE DISTRICT MAGISTRATE. [ENTITY] (M.P.) ORDER No./ 15/N.S.A./R.D.M./2018 [ENTITY] DATED 11-10-2018
1. Whereas I, [ENTITY], District Magistrate, District Jabalpur, am satisfied that with a view to preventing [ENTITY] S/o Shri [ENTITY] Age 41 Yrs R/o H.No. 123 Near Primary School, P.S. [ENTITY] District Jabalpur (M.P.) From action in any manner prejudicial to maintenance of Public Order it is necessary to detain him under [SECTION] of the [ACT].
2 Now therefore in exercise of the power conferred by [SECTION] of the said Act. I, [ENTITY], District Magistrate, District Jabalpur hereby order [ENTITY] S/o Shri [ENTITY] Age 41 Yrs R/o H.No. 123 Near Primary School, P.S. [ENTITY] District Jabalpur (M.P.) may be so detained and kept in [ENTITY].
3 This order will be valid for a period of upcoming 03 (three) months from the date of actual detention.
([ENTITY]) District Magistrate, District Jabalpur (M.P.) No./ 15/ N.S.A./R.D.M./2018 [ENTITY] DATED 11-10-2018 A.F.R. Copy to, 1- Superintendent of Police Jabalpur.
2- Superintendent, [ENTITY].
3- S.D.M. Gorakhpur Distt. Jabalpur. 4- T.I., P.S. [ENTITY] Jabalpur ([ENTITY]) District Magistrate, District Jabalpur (M.P.)" 3. It appears from the order that:-
[A]. District Magistrate has passed the order in purported exercise of provision contained in [SECTION] of the Act of 1980 and, [B]. Husband of the petitioner named [ENTITY] is ordered to be kept in [ENTITY], preventing him from acting in any manner prejudicial to maintenance of public order.
4. After passing the order, the same was served upon the [ENTITY] in jail on 13.10.2018. The grounds of detention also communicated to the detenu. As per aforesaid grounds following cases were mentioned against the detenu:-
[i]. [CASE NUMBER] under [SECTION], [SECTION], [SECTION] of [ACT], registered at Police Station Cant Jabalpur. The date of incident mentioned as 09.08.2006 and it is also mentioned that challan No.249/2006 has been filed before JMFC, Jabalpur, who registered the case No.2[SECTION]61/2006 on 18.08.2006. [ii]. [CASE NUMBER] under [SECTION] of [ACT], registered at Police Station Cant Jabalpur. The date of incident is mentioned as 27.02.2009 and challan No.54/2009 filed before JMFC, Jabalpur on 04.03.2009 and the Court registered the case No.26[SECTION]/2009.
[iii]. [CASE NUMBER] under [SECTION] of [ACT], is registered at Police Station Cant Jabalpur. The date of incident is mentioned as 15.05.2010 and challan No.124/2010 was filed before JMFC, Jabalpur on 25.05.2010 and Court registered [CASE NUMBER].
[iv]. Crime No.[SECTION]/2010 under [SECTION] of [ACT], is registered at Police Station Cant Jabalpur. The date of incident is mentioned as 07.10.2010. [CASE NUMBER] was filed before JMFC, Jabalpur on 11.10.2010 and the Court registered [CASE NUMBER].
[v]. Crime No.[SECTION]0/2011 under [SECTION] of [ACT], is registered at Police Station Cant Jabalpur. The date of incident is mentioned as 30.10.2011 and the [CASE NUMBER] has been filed on 02.11.2011 before JMFC, Jabalpur, who registered the [CASE NUMBER].
[vi]. [CASE NUMBER] under [SECTION] of [ACT], is registered at Police Station Cant Jabalpur. The date of incident is mentioned as 17.03.2013 and the challan No.87/2013 has been filed on 21.03.2013 before JMFC, Jabalpur and the Magistrate registered the [CASE NUMBER].
[vii]. [CASE NUMBER] under [SECTION], [SECTION], [SECTION], [SECTION] of [ACT], is registered at Police Station Cant Jabalpur. The date of incident is mentioned as 20.05.2014 and the challan No.157/2014 has been filed on 23.05.2014 before JMFC, Jabalpur.
[viii]. [CASE NUMBER] under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] is registered at Police Station [ENTITY], Jabalpur. The date of was incident mentioned as 30.08.2018. The petitioner was arrested in this case and sent to judicial custody but other accused persons are yet to be arrested. [ix]. [CASE NUMBER] under [SECTION], [SECTION] of [ACT], is registered by District Excise Department. The date of incident was mentioned as 30.08.2018. The accused was directed to sent to judicial custody.
5. As averred in the writ petition that the husband of the petitioner having some altercation with the Excise Officer against registration of case under [SECTION], [SECTION] of [ACT] on 30.08.2018. The detenu remanded by the Court and sent to judicial custody. Thereafter, police initiated [ACT] proceeding against the detenu without giving opportunity of hearing to detenu and without adducing evidence of witness, the respondent No.2 passed the detention order on 11.10.2018 for a period of three months. The detenu was in jail since 30.08.2018 in connection with [CASE NUMBER] punishable under [SECTION] and [SECTION] of [ACT]. The detention order is perverse and illegal because during detention order detenu [ENTITY] was in jail. The ground mentioned in para Nos. 1 to 9 is stale and it is not relevant for forming the subjective satisfaction of detaining authority. The cases referred against the detenu are minor in nature and without any subjective satisfaction, aforesaid cases have been imposed by the police due to political motivation. The grounds as mentioned in the detention order by detaining authority are illegal and perverse because the act of detenu is not disturbing the society to the extent of causing a general disturbance of public tranquility and act of detenu had no effect on the public or community at large and cannot be held to have A.F.R. disturbance in the public order. The detaining authority did not send his order for confirmation before respondent No.1 and the detenu is not produced before the Advisory Board during the day of filing of petition, therefore, the order is perverse and liable to be quashed. The petitioner has also mentioned some case laws in para-6(K) and said that the order of detention is bad in eyes of law due to principle laid down by the High Court and Hon'ble Supreme Court. Therefore, it is prayed that the order of detention be quashed and the detenu be directed to release from custody.
6. The respondents have filed their return as [CASE NUMBER] on 03.12.2018. The respondents have drawn attention of the Court towards [SECTION] of [ACT] and said that the SHO [ENTITY] has submitted a report No. 1588/2018 dated 17.09.2018, alongwith criminal record and a list of witnesses and the copy of [ENTITY] before Superintendent of Police, Jabalpur stated in that petitioner's husband is involved in illegal activities and there is terror in the police and local area because of that the maintenance of peace in that area has become difficult. Upon the basis of the aforesaid report, the Superintendent of Police, Jabalpur submitted a report on 5.10.2018 to the District Magistrate and said that the petitioner's husband is a hardened criminal and he alongwith companion abused the persons who are residing under the police area and also did marpit and also threatened to death. He has a habit to sale and keep illegal liquor and because of which, criminal offence has been registered against him and, therefore, peace is not maintained in that area of Police Station [ENTITY]. The petitioner is an active criminal. His name has also been registered in the Gunda list. It is also mentioned that detenu has habit of roaming in the area at night along with his active friends. He also assaulted the government servant. District Magistrate, Jabalpur after considering the police report has found that to stop the crime and to maintain peace in the district and to provide peaceful environment to the general public living in the area, it is necessary to pass the detention order against the petitioner. The ground for detention has also been supplied to the petitioner. The District Magistrate, Jabalpur has issued a jail warrant against the petitioner, which has been duly served upon the petitioner, therefore, the contention of the petitioner is that the detention order cannot be passed, if the petitioner is already in jail is misconceived. Upon the aforesaid ground, it is requested that the petition is liable to be dismissed. No case is made out warranting interference of this Court in exercise of its extra ordinary writ jurisdiction.
7. It is submitted by petitioner that without giving opportunity of hearing to detenu and without adducing evidence of witness, the respondent No.2 passed the detention order. This argument having no any force. Another [ENTITY] of this court, by order dated 22.07.2016 passed in [CASE NUMBER] "[PRECEDENT]", held that there is no requirement to give prior notice or opportunity of hearing before passing a detention order.
8. In this case on 12.12.2018, the Court directed to the Superintendent of Police, Jabalpur, SHO of concerned Police Station to file an affidavit indicating therein that the detaining authority was aware of the fact that the detenu was already in custody at the time of passing of the order dated 11.10.2018 and also give details about date of arrest of detenu and as to whether he has been granted bail or not ? In response to the aforesaid order the respondent filed a compliance report bearing [CASE NUMBER] on 19.12.2018. It is stated in the report that the accused / detenu was arrested on 30.08.2018 in another [CASE NUMBER] under [SECTION] and [SECTION] of [ACT] and also arrested on 31.08.2018 in connection with [CASE NUMBER] for the offence punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT]. In [CASE NUMBER] he was enlarged on bail vide order dated 10.10.2018 passed by High Court in [CASE NUMBER], but he did not furnish bail bond. In [CASE NUMBER] bail was not granted, therefore, the petitioner/detenu is confined in custody since 30.08.2018. In this reply, it is also mentioned that the respondents are relying on para Nos. 6, 7, 8 and 9 of the order passed by the Division Bench of this Court. In case of [ENTITY] Vs. State of M.P. reported in 2011 (1) MPWN 50, wherein the Court after relying on catena of judgments of Hon'ble Supreme Court has held that the order of detention can be passed against the person who is already in jail in some other offence subject to if the authority passing the order is aware of the fact that he is actually in custody. It is also submitted that the detenu was granted bail by High Court but he failed to furnish the bail bond and is continuing in jail. The order was served upon him in jail on 13.10.2018.
9. It is an admitted position in this case that the detenu was arrested on 30.08.2018 in connection with [CASE NUMBER] and on 31.08.2018 in connection with [CASE NUMBER]. The detention order has been passed on A.F.R. 11.10.2018. Therefore, when the order was passed, the detenu was already in jail. The detention order was passed upon the basis of report dated 17.09.2018 given by Police Station [ENTITY]. Station Incharge [ENTITY] submitted his report No.1588/2018 dated 17.09.2018 to the Superintendent of Police and the Superintendent of Police submitted his report No.S.P./JBP/NSA/16/18 dated 05.10.2018 to District Magistrate, Jabalpur, who passed the order of detention on 11.10.2018.
10. Learned counsel for the petitioner strongly raised a ground that the detention order cannot be passed because on the date of passing of the aforesaid order the detenu was already in jail.
11. [SECTION] of the Act confers power to make an order of detention with a view to preventing any 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, etc. A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge in any activity prejudicial to the maintenance of public order. In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged in is likely to be repeated. This is the postulate of the section. And this undoubtedly transpires from the language employed in Sub-section (2) which says that the detention order can be made with a view to, preventing the person sought to be detained from acting in an manner prejudicial to the maintenance of public order. Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under [SECTION], if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section. An order for preventive detention is made on the subjective satisfaction of the Detaining Authority. The Detaining Authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing, the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. If the subjective satisfaction of the Detaining Authority leads to this conclusion it can put an end to the activity by making a preventive detention order. In [PRECEDENT], MANU/SC/0041/1963 : AIR 1964 SC 334, the Constitution Bench considered the question: "Can a person in jail custody be served with an order of detention whilst he is in such custody ?" In this context, the Bench held that as an abstract proposition of law, there may not be any doubt that [SECTION] does not preclude the Authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ It was observed thus:
"Whether the detention of the said person would be necessary after he is released from jail, and if the authority is bonafide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released."
Same view has been reiterated in subsequent decisions of the Supreme Court. [See: Sanjay Kumar Agarwal v. Union of India, MANU/SC/0461/1990 :
(1990) 3 SCC 309, [PRECEDENT], [PRECEDENT], Kamarunnissa v.
Union of India, MANU/SC/0376/1991 : AIR 1991 SC 16[SECTION] and [PRECEDENT], [PRECEDENT].]
12. In [ENTITY] Vs. State of Jammu & Kashmir and Ors., AIR 1982 SC 1023 = 1982 (2) SCC 43 = 1982 Cri.L.J. 988 [17.03.1988] detention order dated July 11, 1981 made by the District Magistrate, Jammu in exercise of the power conferred by [SECTION] of The [ACT]. The detenu [ENTITY] was arrested on June 26, 1981. The detenu was served with the detention order dated July 11, 1981 on the same day in jail because he was already in jail from June 25, 1981. The grounds for detention were served on him on July 15, 1981. The contention of petitioner was that the order of the District Magistrate suffers from nonapplication of mind inasmuch as the date on which he passed the impugned order of detention dated July 11, 1981, the detenu was long before arrested and locked up in Jail on the allegation that he was suspected to have committed some offence under the [ACT], and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the State. The District Magistrate passed the impugned order of detention on being satisfied that with a view to preventing the detenu from acting in a manner prejudicial to the security of the State it was A.F.R. necessary to detain him. The order ex facie does not show that the detaining authority was aware that the detenu was already arrested and kept in jail. If the detaining authority was conscious of the fact that the detenu was already arrested and confined in jail, the order exfacie would have shown that even though the detenu was in jail, with a view to preventing him from acting in a manner prejudicial to the security of the State it was necessary to detain him. The Apex court held ( in para 9 of Cri.L.J.) that :-
" Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits nonapplication of mind and would result in invalidation of the order."
13. The similar issue had come up before the Division Bench of this Court in the matter of [PRECEDENT], reported in MANU/MP/0478/2010 : 2010(4) MPL J 253 = 2011(1) MPHT 208. In this case The District Magistrate, Ujjain, passed the detention order on the March 3, 2010, directing that the Petitioner should be detained. The Order recites that the District Magistrate was satisfied that it was necessary to detain the Petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order. This order was served on the Petitioner on March 3, 2010. The grounds of detention were served on 4-3-2010. After getting positive report from the Advisory Board, State Government passed the Order dated April 19, 2010 under [SECTION] of the Act confirming the detention order for a period of twelve months. According to Learned Counsel for Petitioner the detenu was already in jail when he was served with the detention order. After taking note of the judgment of the Supreme Court in the matter of [PRECEDENT], [PRECEDENT], [PRECEDENT], reported in MANU/SC/0226/1990 : AIR 1990 SC 1196, Kamarunnissa vs. Union of India, reported in MANU/SC/0376/1991 : AIR 1991 SC 16[SECTION], Abdul Sathar Ibrahim Manik vs. Union of India, reported in [PRECEDENT], [PRECEDENT], reported in [PRECEDENT], the Division Bench of this Court held thus :
"9. From the catena of decisions of Supreme Court it is clear that even in the case of a person in custody, a detention order can validly be passed if the authority passing the order is aware of the fact that he is actually in custody: if he has reason to believe on the basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down."
In Para 7 the [ENTITY] also said that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. In the aforesaid case the Division Bench of this Court found that nothing was produced to show that the detaining authority was aware of the fact that the detenu was already in jail, therefore, the detention order was held to be invalid by observing :
"12. The impugned detention order does not give the slightest indication that the Detaining Authority was aware that the detenu was already in jail and yet on the material placed before him he was satisfied that a detention order ought to be made. There is nothing in the order to show that to the knowledge of the Detaining Authority the detenu was already in jail before the date on which he passed the order and that such detention in the opinion of the Detaining Authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State, and, therefore, power under [SECTION] of the Act is required to be exercised. The reply and affidavit of the District Magistrate does not throw any light on the vexed question whether the Detaining Authority was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail. There is nothing to indicate the awareness of the Detaining Authority that detenu was already in jail and yet the impugned order was made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order.
13. In view of the foregoing discussion we allow this writ petition and quash the detention order dated March 3, 2010 and the subsequent confirmation order dated April 19, 2010 and direct that the detenu [ENTITY] be released immediately from the custody if he is not required in any other cause. Order accordingly."
14. In Sanjay Yadav and Anr. Vs. State of Madhya Pradesh and Anr., 2011(1) MPHT [SECTION] (DB) detention order dated 17.02-2010 was passed against A.F.R. him under [SECTION] of the Act and he was taken in detention on 22.02.2010. He was served with the detention order and grounds of detention along with the documents on 22.02.2010. The case was sent for approval of the Government on 17.02.2010 and the State Government granted approval on 26.02.2010 and the information was sent to the Central Government on 02.03.2010. The case was sent to the Advisory Board on 3.3.2010 and the Advisory Board gave its opinion and thereafter the order confirming the detention order was passed on 15.04.2010. It was contended that the Petitioner No. 1 was already in jailfor offence under [SECTION] of [ACT] and the detention order has been passed without application of mind and that there is no material to indicate that the Petitioner No. 1 is indulging in any activity from inside the jail to disturb public order. The court said in para 6 that it is the settled position in law that detention of a person without a trial is a very serious encroachment on his personal freedom and at all stage all questions in relation to the detention are required to be carefully and solemnly considered. Since the preventive detention is a serious inroad into the freedom of individuals, therefore, reason, purposes and the manner of such detention is subject to closest scrutiny and examination. Court also quote the following lines of [PRECEDENT]., reported in [PRECEDENT], related to scope of judicial review:
"Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the action of the Petitioner which are prejudicial to the maintenance of public order. Existence of materials relevant to the formation of the satisfaction and having rational nexus to the formation of the satisfaction that because of certain conduct "it is necessary" to make an order "detaining" such person, are subject to judicial review."
Thereafter the Court said in para 8 :
"It is the settled position in law that the authorities are not precluded from passing an order of detention when the person concerned is in jail, but while passing the order of detention, they are required to apply their mind to the fact that the person concerned is already in jail and there are compelling reasons justifying such detention despite the fact that the detenu was already in detention and the compelling reasons implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future or taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. The aforesaid proposition in law is supported by the judgments of the Supreme Court in the matter of [PRECEDENT]; in the matter of [PRECEDENT]., reported in MANU/SC/0381/1989 : (1989) 4 SCC 418; and in the matter of [PRECEDENT]."
The [ENTITY] held in para 9 that the order has been passed without application of mind and said :
"In the present case the Respondents have noted the fact that the Petitioner No. 1 is in jail but there is no application of mind by the Respondents in respect of the possibility of the release of the Petitioner No. 1 on bail in respect of the offence of [SECTION], [ACT] and other connected offences for which he is already in jail. The detention order and the grounds of detention do not mention if the Petitioner No. 1 had applied for grant of bail and what was its but come. Thus, the detention based on Ground No. [SECTION] cannot be sustained having been passed without application of mind on this aspect."
15. In the case of [PRECEDENT] the detention order was passed by [ENTITY] on 18.01.2012 on which the petitioner was already in Jail in connection with the crime No. 446 of 2011 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT]. The [ENTITY] took the note of [PRECEDENT] and examined the matter in the light of the observation made by Supreme Court in [ENTITY] Vs. State of Jammu & Kashmir and Ors., AIR 1982 SC 1023, and queshed the order and said in para 8 that :-
" We find that there is no indication in the order to the effect that the detaining authority was aware that the detenu was already in custody and that he has reason to believe on the basis of reliable material that there is a possibility of his being released on bail and that on being so released the detenu would in all probabilities indulge in prejudicial activities and for compailing reasons a preventive detention order need to be made."
16. Therefore it is the settelled position of law that the authorities are not precluded from passing an order of detention when the person concerned is in jail, but while passing the order of detention, they are required to apply their mind to the fact that the person concerned is already in jail and there are compelling reasons justifying such detention despite the fact that the detenu was already in detention and the A.F.R. compelling reasons implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that the detenu is likely to be released from custody in the near future or taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
17. Whether the aforesaid requirements are fulfilled in this case or not ? In this regard the respondents tried to convenience the Court that the detaining authority was aware of the fact that the accused is already in jail. He draws our attention towards the report submitted by the Superintendent of Police and argued that, in the report, it was mentioned that the detenu has been arrested in [CASE NUMBER] and has been sent to the judicial custody. It was also mentioned that on 30.08.2018 the detenu was arrested in connection with [CASE NUMBER] and sent to the judicial custody. As per respondent the detenu was arrested in connection with [CASE NUMBER] and was confined in custody. But the aforesaid fact is not reflected from the order passed by the detaining authority. In the order dated 11.10.2018, it is mentioned that :-
"it is necessary to detain him under [SECTION] of the [ACT]". jk"Vh; lqj{kk vf/kfu;e 1980 dh /kkjk 3 dh mi/kkjk 2 ds v/khu fu:) fd;k tkuk vko';d gS .
In para No.2, it is mentioned that:-
"may be so detained and kept in [ENTITY]" (dks fu:) fd;k tkdj dsUnzh; tsy tcyiqj esa j[kk tkos).
In para No.3 of the order, it is mentioned that:-
"This order will be valid for a period of upcoming 03 (three) months from the date of actual detention" (;g vkns'k vukosnd dks fu:) fd;s tkus dh okLrfod frfFk ls vkxkeh 03 rhu ekg dh vof/k ds fy;s cS/k gksxk).
18. The aforesaid quoted portion of the order shows that the detaining authority did not took the notice of the fact that the detenu is already in custody. We have minutely perused the impugned order dated 11.10.2018 passed by District Magistrate. In the said impugned order, it is not mention that the accused was in jail at the time of passing of the said order. It is not reflected from the said order that the detaining authority was aware of the fact that the accused was in jail at the time of passing of the said order. No any such material has been produced before this Court to establish such facts. Therefore, the impugned order clearly indicates the non application of mind by the detaining authority in respect of the possibility of the release of the Petitioner. Since, the detaining authority was not made aware of the fact that the accused was in custody in relation to the investigation in two criminal cases, therefore, the detaining authority had no occasion to apply his mind in respect of possibility of the accused being released on bail and the probability of his involvement in such activities after release on bail. It is not clear from the order passed by the detaining authority that it was in the notice of the authority that the detenu was already in jail since 30.08.2018 otherwise the authority will not mention in para-3 that "this order will be valid for a period of upcoming 03 (three) months from the date of actual detention". Before about [SECTION] days back, the detenu was in custody, therefore, the satisfaction of the authority was required and should be mentioned in the order passed, but the authority passed the order in mechanical way by using a set proforma. Order did not fulfill the requirement of the law and the principle laid down by the Hon'ble Supreme Court and the High Court.
19. The petitioner also filed some documents in relation to the result of criminal cases mentioned in the grounds of detention order. The case mentioned at Sr. No.7 (In para No.vii of this order) was the [CASE NUMBER], in which judgment has been passed by JMFC, Jabalpur on 01.06.2015. It appears from the judgment that the offence under [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] were compromised and the Court passed the order of acquittal only in the offence under [SECTION] of [ACT]. In [CASE NUMBER], fine of Rs.1000/- has been imposed under [SECTION] on 29.06.2011. In [CASE NUMBER] fine of Rs.500/- has been imposed under [SECTION] of [ACT] on 21.03.2013. In [CASE NUMBER] fine of Rs.500/- has been imposed on 21.03.2013. In [CASE NUMBER] fine of Rs.1000/- has been imposed under [SECTION] of [ACT] on 02.11.2011. In [CASE NUMBER] fine of Rs.500/- has been imposed under [SECTION] of [ACT] on 03.02.2012. In [CASE NUMBER] the matter has been compromised under [SECTION], [SECTION] and [SECTION] of [ACT].
A.F.R.
20. Therefore, it appears from the aforesaid documents that all cases mentioned in the grounds of detention were already disposed of except the two latest cases registered on 30.08.2018 as [CASE NUMBER] and [CASE NUMBER], in which accused was in custody. Except aforesaid two cases, out of remaining cases two cases were under the sections of [ACT] and the other case was related to [ACT]. Cases related to [ACT] were disposed of by imposing the fine upon admission of accused, and the cases related to [ACT] have been compromised. Therefore, at the time of passing the detention order only two cases were in existence and both were recently registered on 30.08.2018. Both the cases arise out of same transaction. As such the allegation made against the accused are of trivial nature and do not admit of grave and serious offence having implication of serious repercussions on the life and liberty of larger section of community causing disturbance even tempo of life and liberty of the community so that same may be classified as the Act of the intended to subvert the public order. We find that in the ground of detention there is no other material referred to which would justify the apprehension of detaining authority that the accused is engaged in a manner to subvert public order or that the witnesses were not coming forward to depose against him due to fear and more so that the accused is likely to engage himself in the activities, which may affect public order. In absence of any contemporaneous material in this behalf it is unfathomable as to how subjective satisfaction reached by the detaining authority regarding involvement of the petitioner in subversion of public order can be justified. Therefore, such sporadic and stale instances referred to and relied upon the detaining authority are of trivial in nature cannot be construed to have the potential of causing threat to maintenance of public order. These are the instances, at best of breach of law and order and they did not establish any live and proximity link to the threat of public order nor does it pass the test of detention order passed for the right purpose. The nature of allegations with reference to the alleged offences are of the nature, which can be dealt with under the powers to maintain law and order. They are not of such a nature, which may be perceived to have the intensity of causing threat to public order.
21. The respondent also placed reliance upon [ENTITY] Vs. Commissioner of Police, Nagpur and Others, reported in (1993) 3 SCC 384 and submits that registration of [CASE NUMBER] is sufficient to justify the order of detention on 30.08.2018. The accused committed marpit with the District Excise Officer, [ENTITY] and created obstruction in discharging the official duty of Shri [ENTITY] and other Official of the Excise Department, when they were discharging their duty and trying to seize the liquor. During the proceeding of [CASE NUMBER], the accused attacked upon officer of excise department, therefore, one case [CASE NUMBER] registered under [ACT] as [CASE NUMBER] and another case registered under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] as [CASE NUMBER] .
22. In the case of [ENTITY] (supra) the detenu catch hold the police ASI and threatened him in a public place when S.I attempt to effect arrest of detenu and detenu associates and seizure of liquor bottles being sold. It is also mentioned in para-3 of the aforesaid judgment that on 01.02.1992 at about 9:45, when the Police Sub Inspector was patrolling, he saw people gathered near detenu's stable and on seeing him they tried to run away. The Sub Inspector caught hold one of them, who admitted that he was selling illicit liquor in the detenu's stable and thereafter Sub Inspector took search of the stable and found liquor bottles. When Sub Inspector was about to take the arrested person and the liquors bottles the detenu and his associates came there, questioned the Sub Inspector and forcefully broke the liquor bottle on the spot when Sub Inspector told them that he was performing duty, the detenu threatened him that they finish him, if he does not act according to their wishes. So saying the detenu caught hold of the Sub Inspector and surrounded him. The Sub Inspector however, got release and went to Police Station. This act and conduct of detenu was considered to be nothing but display of Gundaism, by the detaining authority. The Court said that :-
" We cannot say that this is a stray act affecting law and order. Catching hold of a Sub Inspector and threatening him in public place like that naturally would have created panic in the locality. We cannot say the ground has no nexus to the public order".
23. In this case particulars of [CASE NUMBER] have not been mentioned in the ground of detention. In the report of Superintendent of Police the position is the same. Whether the aforesaid crime was committed in public place or not, it is not clear. Most the cases registered against the petitioner were related to [ACT]. Any offence related to public was not registered. The offence under [ACT] were related to the specific person not to the public and the A.F.R. aforesaid person entered in the compromise and the accused was acquitted in that offence. Therefore, the case of [ENTITY] (supra) does not help the respondents.
24. In view of the foregoing discussion we allow this writ petition and quash the detention order dated 11.10.2018 and direct that the detenu [ENTITY] be released immediately from the custody, if he is not required in any other case. Order accordingly.
([ENTITY]) ([ENTITY]) Judge Judge Vin Date: 2019.02.04 15:53:44 +05'30'