TMI Blog1989 (3) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention and also on other grounds. In order to decide the various contentions raised in this writ petition, it is necessary to consider the background as well as the various orders of detention passed against the detenu by the detaining authority, the respondent No. 1. On September 11, 1984, the detenu was served with a show-cause notice under Section 59 of the Bombay Police Act, 1951 calling upon him to show cause as to why he should not be externed from the limits of Ahmedabad City Police Commissioner s jurisdiction and its surrounding areas as also from the rural areas of Gandhinagar, Kheda and Mehsana District limits for the activities of February, 1983. In 1985 the detenu was arrested for alleged offences under Sections 307, 143, 147, 148, 149 and 324 of Indian Penal Code in C.R. No. 37 of 1985. On February 14, 1985 the detenu was granted bail in the said case by the Sessions Court, Ahmedabad. On March 18, 1985 communal riots broke out in Ahmedabad city and on March 24, 1985 an order of detention under the National Security Act was passed against the detenu by the respondent No. 1. During the communal riots one Police Sub-Inspector, Mr. Rana was killed in Kalupu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 3762 of 1986 before this Court and the said Petition was finally heard in part on January 23, 1987 and it was adjourned to February 3, 1987. This Court released the detenu on parole only on January 23, 1987 for the reason that the detenu was required to be in Ahmedabad because the Corporation elections were to take place on January 25, 1987. Unfortunately, the mother of the detenu expired on January 23, 1987, but in spite of the order of parole made by this Court, the State Government permitted the detenu to attend his mother s funeral by granting him parole for only four hours and after the funeral, the detenu was again taken into custody. Thereafter, the detenu was released on parole on January 24, 1987. The elections for the Corporation were held on January 25, 1987 and the detenu was declared elected from all the wards from which he had contested. On February 3, 1987, the appeal of the detenu was heard finally by this Court and this Court extended the parole granted to him till the judgment was delivered in the case. However, on February 3, 1987 in spite of the orders of parole, the detenu was kept in custody and was released only on the next day i.e. February 4, 1987. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1987 before this Court against the impugned order of externment of the detenu for a period of two years with effect from January 18, 1986. Notice was issued on the said petition but as the period of externment expired, the said petition was finally disposed of by this Court. On October 16, 1987, the detenu was arrested by the police for an alleged offence committed by the detenu in respect of the incident of February 14, 1987 i.e. breach of externment order dated January 18, 1986. The detenu applied for bail to the Designated Court, Ahmedabad but the bail application was rejected vide order dated November 24, 1987. The detenu filed an appeal before this Court under Section 16 of the Terrorist and Disruptive Activities (Prevention) Act, 1985. This appeal being Criminal Appeal No. 316 of 1988 was disposed of by this Court on April 27, 1988 setting aside the impugned order of the Designated Court rejecting application for bail and remitting the case to the Designated Court for a decision afresh. The Designated Court was also directed to enlarge the applicant on bail on such terms as it deems fit pending disposal of the application for bail on merits. The respondents being afrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify the statement made in the grounds of detention that there are full possibilities that the detenu may be released on bail in this case. This statement, it has been stated is recklessly false. It has also been stated that the entire material which forms the basis of the present order of detention and the grounds of detention was available at the time of the detention order of January 25, 1988. The detaining authority, the respondent No. 1 has filed an affidavit in reply. In para 16 of the said affidavit it has been stated that it is true that the detenu was released by the Advisory Board on April 3, 1987; but it is not true to say that two FIRs were lodged against the detenu with a view to harass him. These two FIRs i.e.C.R. Nos. 34 and 40 of 1987 were registered against the detenu on February 14, 1987 at P.S. Kalupur i.e. prior to the order dated April 3, 1987 passed by the State Government. C.R. No. 34/87 was registered at P.S. Kalupur against the detenu for breach of externment order while C.R. No. 40/87 was registered against the detenu at P.S. Kalupur for an offence of provocative speech made by the detenu. In para 32, the respondent No. 1 merely denied the averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention against the detenu, the brother of the petitioner who is already in custody, did not at all consider the fact that the Designated Court declined to grant bail to the detenu by its order dated May 13, 1988 in Crl. Misc. No. 511 of 1988. The detaining authority also was not aware that no application for bail on behalf of the detenu was filed between May 13 to May 23, 1988 i.e. the date when the detention order was made. Had this fact been known to the detaining authority, the detaining authority could have considered whether in such circumstances he would have been subjectively satisfied on the basis of cogent materials, fresh facts and evidences that it was necessary to detain him in order to prevent him from acting in a manner prejudicial to the maintenance of public order. In Rameshwar Shaw v. District Magistrate, Burdwan Anr., [1964] 4 SCR 921 the petitioner_was detained by the order of the District Magistrate under the provisions of Preventive Detention Act, 1950. The order recited 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 publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion drawn by the authority that the detention of the person after his release is necessary. The detention of a person without a trial is a very serious encroachment on his personal freedom and so at every stage, all questions in relation to the said detention must be carefully and solemnly considered. The detaining authority considered the antecedent history and past conduct which was not proximate in point of time to the order of detention and as such the detention order was held to be not justified and so the same was set aside. In Alijan Mian v. District Magistrate, Dhanbad and Ors. etc., [1983] 4 SCC 301 detention orders were served on the petitioners in jail. The detaining authority was alive to the fact that the petitioners were in jail custody on the date of the passing of the detention orders as evident from the grounds of detention. It was stated therein that the position would have been entirely different if the petitioners were in jail and had to remain in jail for a pretty long time. In such a situation there could be no apprehension of breach of public order from the petitioners. But the detaining authority was satisfied that if the petitioners were enlarged o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. In Suraj Pal Sahu v. State of Maharashtra and Ors., [1986] 4 SCC 378 Sabyasachi Mukharji, J while agreeing with the views expressed in Ramesh Yadav v. District Magistrate, Etah Ors., (supra) observed that the principle enunciated in the said case would have to be judged and applied in the facts and circumstances of each case. Where a person accused of certain offences whereunder he is undergoing trial or has been acquitted, the appeal is pending and in respect of which he may be granted bail may not in all circumstances entitle an authority to direct preventive detention and the principle enunciated by the aforesaid decision must apply but where the offences in respect of which the detenu is accused are so interlinked and continuous in character and are of such nature that these affect continuous maintenance of essential supplies and thereby jeopardize the security of the State, then subject to other conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izens. In Poonam Lata v.M.L. Wadhawan Anr., [1987] 4 SCC 48 the court observed that: The fact that the detenu is already in detention does not take away the jurisdiction of the detaining authority in making an order of preventive detention. What is necessary in such a case is to satisfy the court when detention is challenged on that ground that the detaining authority was aware of the fact that the detenu was already in custody and yet he was subjectively satisfied that his order of detention became necessary. In Smt. Shashi Aggarwal v. State of U.P. and Ors., [1988] 1 SCC 436 at 440 the detenu was detained by the District Judge, Meerut by an order dated August 3, 1987 made under Section 3(2) of National Security Act, 1980. The detention order was approved by the State Government on receipt of the opinion of the Advisory Board. It was challenged by a writ petition before this Court. The Court observed that: In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of detention. So it is a stale ground. Another criminal case No. 456/87 is dated October 16, 1987 on the basis of which the previous order of detention was made. This case has nothing to do with the maintenance of public order as it pertains to the recovery of a revolver from the detenu on a search of the person of the detenu, without any valid licence under the Arms Act. The third case No. 2/88 is dated January 2, 1988. This case was in existence at the time of making of the detention order dated January 25, 1988. Moreover, the name of the detenu is not in the F.I.R. The statements of some of the associates of the detenu have been annexed to the grounds of detention. These statements do not disclose any activity after 14th March, 1988 or any activity of the time when the detenu was a free person. Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu. It also appears that the detenu was in detention as well as in jail custody for about three year ..... X X X X Extracts X X X X X X X X Extracts X X X X
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