The main legal point established in the judgment is the requirement for the authority to be aware of the detenu's custody and to have reason to believe in the real possibility of release on bail and the likelihood of indulging in prejudicial activity upon release, as required by the law on preventive detention when the detenu is already in jail.

JUDGMENT :

1. Heard Ms. Zia Naz Zaidi for the petitioner; Sri Deepak Mishra, learned AGA, for respondents 1, 2 and 3; Smt. Raj Kumari Devi for respondent no.4 and perused the record.

2. This habeas corpus petition seeks release of the petitioner, Kumail son of Anjum, currently in detention at District Jail Aligarh, after quashing the detention order dated 14th January, 2019, passed by the District Magistrate, Aligarh (for short DM) in exercise of his power under Section 3(2) read with Section 3(3) of the National Security Act, 1980 (for short Act, 1980).

3. A perusal of the record, in particular the return filed on behalf of Superintendent District Jail, Aligarh (third respondent), would reveal that the detenu was admitted in District Jail, Aligarh on 03.11.2018, pursuant to remand order, dated 3.11.2018, issued by the Chief Judicial Magistrate, Aligarh in case crime no.716 of 2018 under sections 147, 148, 149, 302, 504, 506, 120-B, 34 IPC, P.S. Civil Lines, District Aligarh; and, thereafter, another remand was obtained on 15.11.2018 for keeping him in custody also in case crime no.746 of 2018, under section 3/25 Arms Act, P.S. Civil Lines, Aligarh. While in judicial custody in connection with the above two cases he was served with the impugned detention order.

4. At the outset, the learned counsel for the petitioner, by relying on averments made in paragraphs 22 to 27 of the petition, submitted that since the petitioner was already in jail, in connection with a murder case, and no order of acquittal or grant of bail was passed, his preventive detention could have been directed only after drawing satisfaction that there was real possibility of him being released on bail in the immediate future. But neither such satisfaction has been recorded in the order of detention, or in the grounds of detention, nor there existed material on record to enable such satisfaction. It is urged that even in the return filed by the DM existence of such satisfaction has not been disclosed.

5. It has been submitted that in a case where detenu is already confined in jail, the order of preventive detention could be passed (1) if the authority passing the order is aware of the fact that detenu 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; (b) that on being so released he would in all probability indulge in prejudicial activity; and (c) if it is felt essential to detain him to prevent him from so doing.

6. It has been submitted that in the instant case though the DM has disclosed his awareness that the petitioner is in jail and has applied to the court of sessions for bail but has not recorded satisfaction that there is real possibility or likelihood of him being released on bail. Therefore the detention order is vitiated. It has been submitted that mere pendency of bail application is not sufficient, because the prayer for bail can be opposed. What is relevant is the satisfaction, on the basis of material put forth before the detaining authority, that there is real possibility of the detenu being enlarged on bail in the immediate future. Such satisfaction may be drawn on the basis of bail order granted to co-accused or on the facts of the case or having regard to the nature of the offence in connection with which the detenu is in jail.

7. It has been urged that the petitioner in paragraphs 22 to 27 of his writ petition has challenged the existence of material before the detaining authority to draw such satisfaction and had also questioned existence of such subjective satisfaction but in the return filed by the DM neither material has been disclosed nor claim with regard to drawing such satisfaction has been made. Under the circumstances, it is urged, the detention order is vitiated for non application of mind on a relevant aspect.

8. In support of the above contention, learned counsel for the petitioner has placed reliance on decis