The detention order under the National Security Act can be validly passed if the authority is aware of the detenu's incarceration and has reason to believe, based on reliable material, that there is a real possibility of the detenu being released on bail and indulging in prejudicial activity upon release.

JUDGMENT :

1. We have heard Sri Mahendra Pratap, assisted by Sri Anurag Yadav, Sri Avinash Kumar Pandey and Sri Chaman Lal Chaudhary, for the petitioner; Sri Jitendra Prasad Mishra for Union of India; Sri Deepak Mishra, learned AGA for the respondents no. 2, 3 and 4; and have perused the record.

2. The instant petition seeks quashing of the detention order dated 06.06.2019 passed by the District Magistrate, Gautam Budh Nagar in exercise of his power conferred upon him by sub-section (3) of section 3 of the National Security Act, 1980 (in short the 'Act 1980') read with sub-section (2) of section 3 thereof. The petition also challenges the order of confirmation as well extending the period of detention from three months to six months starting from the date of detention with a prayer that the petitioner be set at liberty.

3. Before we proceed to notice the grounds of detention, we may observe that from a perusal of paragraphs 3 and 14 of the return filed by the Jailor, District Jail, Gautam Budh Nagar it appears that while the petitioner was confined in District Jail, Gautam Budh Nagar, pursuant to judicial orders of remand passed in connection with six cases, namely: (i) Case Crime No. 52 of 2019 under section 25/ 27 Arms Act, P.S. Knowledge Park, Ghaziabad; (ii) Case Crime No.977 of 2015 under section 307, 353 IPC, P.S. Kasna, District Gautam Budh Nagar; (iii) Case Crime No.247 of 2018, under sections 430, 379, 411, 447 IPC and section 3 of Public Property Prevention of Damages Act, P.S. Knowledge Park, District Gautam Budh Nagar; (iv) Case Crime No.264 of 2018, under sections 2/3 Gangsters Act, P.S. Knowledge Park, District Gautam Budh Nagar; (v) Case Crime No.20 of 2019, under sections 147, 148, 149, 364, 302, 323, 504, 506 IPC, P.S. Knowledge Park, district Gautam Budh Nagar; and (vi) Case Crime No.50 of 2019, under sections 147, 148, 149, 186 188, 332, 353 I.P.C., P.S. Kowledge Park, District Gautam Budh Nagar, he was served with the impugned order of detention. The return reveals that till the date of swearing the return, which is 20th September 2019, the petitioner apart from being detained under the provisions of the Act, 1980 is in judicial custody in six cases mentioned above. The grounds of detention served upon the petitioner though, in paragraph 6 enumerates the criminal history of the petitioner of 16 cases but, in paragraph 10 thereof, awareness of the petitioner being in jail is with respect to only three of those six cases, namely, case crime no.264 of 2018 (supra); case crime no.20 of 2019 (supra); and case crime no.247 of 2019. That apart, satisfaction that the petitioner is likely to be released on bail has been drawn by observing that the petitioner has been granted bail in case crime no.247 of 2018 (supra) and has applied for bail in case crime nos.20 of 2019 and 264 of 2016 wherein dates have been fixed for their consideration. Even the report of the S.S.P. Gautambudh Nagar, dated 04.06.2019, at page 43 of the paper book, discloses that the petitioner is currently incarcerated in only three cases, which is in direct conflict with the statement made by the Jailor in his return as noticed above. Thus, it is clear that the detaining authority at the time of passing the detention order and formulating the grounds of detention was not aware that the petitioner is in under detention in three other cases also. Moreover, no satisfaction has been recorded by him with regard to likelihood of the petitioner being released on bail in those three cases.

4. Coming to the grounds of detention, a perusal thereof would reveal that satisfaction to detain the petitioner under section 3(2) of the Act, 1980 has been drawn on the basis of petitioner's activity of illegal sand mining from Yamuna river bed with reference to case crime no.247 of 2018 by referring to past criminal history of the petitioner which discloses, that apart from other offences, there were cases registered against the petitioner in the past also in respect of