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2019 Supreme(All) 2391
IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, MANJU RANI CHAUHAN, JJ.
Anil Bhati - Appellant
Versus
Union of India and Ors - Respondent
Habeas Corpus Writ Petition No. 329 of 2019
Decided On : 19-08-2019
Advocate Appeared:
For the Appellant : Brijesh Sahai, Chandrakesh Mishra, Daya Shankar Mishra, Senior Adv. and Vikas Chandra Srivastava
For the Respondent: A.S.G.I., Annapurna Singh and Vinay Saran
The non-consideration of relevant material, such as a bail order, by the detaining authority before issuing a detention order can vitiate the subjective satisfaction and render the detention order illegal.
Headnote:
National Security Act - Detention under National Security Act, 1980 - Section 3(2) and 3(3) - Case Crime No. 751 of 2017 - Summary of Acts and Sections: National Security Act, 1980 - Section 3(2) and 3(3)
Fact of the Case:
The petitioner, Anil Bhati, challenged his detention under the National Security Act, 1980 (the Act) based on an order dated 05.12.2018. The detention was questioned on the grounds that the detaining authority did not consider the bail order passed in favor of the petitioner, which vitiated the subjective satisfaction and the detention order.
Finding of the Court:
The court found that the detaining authority did not consider the bail order, which was a relevant material, before issuing the detention order. This non-application of mind on relevant material vitiated the subjective satisfaction of the detaining authority, rendering the detention order illegal. As a result, the detention order was quashed, and the petitioner was ordered to be set at liberty.
Issues: The issues raised in the case included the non-consideration of the bail order by the detaining authority, the relevance of the bail application and bail granting order, and the impact of non-consideration of relevant material on the detention order.
Ratio Decidendi: The court held that the bail order was a relevant material that ought to have been placed before and considered by the detaining authority before issuance of the detention order. The non-application of mind on the relevant material vitiated the subjective satisfaction of the detaining authority, rendering the detention order illegal.
Final Decision: The habeas corpus petition was allowed, and the detention order dated 05.12.2018 was quashed. The petitioner was ordered to be set at liberty forthwith unless wanted in any other case.
ORDER :
1. We have heard Shri D.S. Mishra, learned senior counsel assisted by Shri Chandrakesh Mishra and Shri Vikas Chandra Srivastava, for the petitioner; Shri Shashi Bhushan, Advocate, holding brief of Shri Annapurna Singh, for the Union of India; Shri Vinay Saran, learned senior counsel assisted by Shri Harikesh Kumar Gupta, for the Intervenor; the learned A.G.A. for the state respondents; and have perused the record.
2. By means of this habeas corpus petition, the petitioner Anil Bhati, currently in Jail, has questioned his detention under the National Security Act, 1980 (for short the Act, 1980) pursuant to the order dated 05.12.2018 passed by the District Magistrate, Gautam Buddh Nagar (for short DM) under Section 3(2) read with Section 3(3) of the Act, 1980, which has been confirmed by the State Government vide order dated 22.01.2019 and, thereafter, the detention period has been extended. The petitioner has prayed that after setting aside the detention order he be released.
3. A resume of relevant facts would be apposite. From the return filed by the Jailor, District Jail, Kaushambhi (for short the Jailor), it appears, the petitioner Anil Bhati was admitted in District Jail, Muzaffarnagar on 17.03.2018 pursuant to remand order dated 8.12.2017 issued by the Chief Judicial Magistrate, Gautam Buddh Nagar in case crime no. 751 of 2017, P.S. Bisrakh, District Gautam Buddh Nagar, which related to an incident dated 16.11.2017. While he was in custody, remand orders were obtained in five other cases on the basis of petitioner's subsequent implication in those cases. On administrative ground, on transfer, the petitioner was admitted in District Jail, Kaushambhi on 07.07.2018. While the petitioner was in jail in connection with those cases, he was served with the impugned detention order dated 05.12.2018 passed by the DM. The grounds of detention served upon the petitioner indicate that the subjective satisfaction to detain the petitioner under the Act, 1980 was drawn on the basis of his involvement in Case Crime No. 751 of 2017 (supra) as the incident relating to it had allegedly disturbed the public order. However, for the purpose of drawing satisfaction in respect of the propensity of the petitioner to repeat such act, upon being released on bail, his implication in four other cases was narrated. In paragraph 8 of the grounds of detention it was mentioned that the bail applications of the petitioner in respect of Case Crime No. 751 of 2017 (supra) and Case Crime No. 378 of 2018, P.S. Bisrakh, District Gautam Buddh Nagar, under sections 2/3 of U.P. Gangsters (Prevention of Anti-Social Activities) Act, 1986, were pending in the High Court and a date was fixed for their consideration but because the co-accused Arun Yadav has been granted bail in Case Crime No. 751 of 2017, there is imminent likelihood of the petitioner being released on bail therefore detention under the Act, 1980 was considered necessary with a view to prevent him from repeating activity prejudicial to the maintenance of public order. The grounds of detention also indicate that the DM was satisfied that if bail is granted in the main case i.e. Case Crime No. 751 of 2017 (supra) then securing bail in other cases, which were not so serious, would not be difficult.
4. The learned counsel for the petitioner has questioned the detention order on several grounds. However, as we are satisfied with one of those grounds on which the petition can be allowed, we do not propose to address all the grounds raised.
5. Before we proceed to notice and discuss the relevant points urged before us, it may be observed that the grounds of detention reveal that at the time of passing the detention order the DM was under the impression that the bail application of the petitioner in Case Crime No. 751 of 2017 (supra) was pending and a date had been fixed for its consideration by the High Court. Such impression is reflected from paragraph 8 of the grounds of detention served upon the petiti
