Point of Law: In case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing

JUDGMENT :

Subhash Chandra Sharma, J.

1. Heard Sri Saghir Ahmad, learned Senior Advocate assisted by Sri Vinay Kumar Singh, learned counsel for the petitioner, Ms. Kumari Meena, learned A.G.A. for the State-respondents and Sri Surendra Nath Chauhan, for Union of India.

2. By this writ petition under Article 226 of the Constitution of India petitioner Rakesh Singh prays for issuance of a writ, order or direction in the nature of Habeas Corpus challenging the validity and constitutionality of the impugned detention order dated 15.01.2020 passed by District Magistrate, Sonebhadra/respondent no.3 (hereinafter referred to as ' the detaining authority') under sub section (2) of Section 3 of National Security Act, 1980 (for short the 'NSA') on being satisfied that petitioner's detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order as well as confirmation order dated 23.01.2020 passed by the Under Secretary Home (Confidential) Department, Government of U.P., Lucknow/respondent no.2.

Petitioner has also prayed for a direction to the respondents to set him at liberty and to award cost to him.

3. The order of detention alongwith the grounds of detention was served upon the petitioner on 15.01.2020. Against the said order, the petitioner made a representation dated 24.01.2020 to the Detaining Authority, the Secretary, Department of Home and another representation to the Advisory Board constituted under Section 9 of the N.S.A. The case of the petitioner alongwith his representation was placed before the Advisory Board who opined that there was sufficient cause for the detention of the petitioner. Accordingly, in exercise of powers conferred under Section 12 (1) of the NSA, the State Government confirmed the aforesaid order of detention and directed that the petitioner be detained for a period of three months from the date of detention vide order dated 24.02.2020 which was communicated to the petitioner on 29.02.2020.

4. According to the grounds of detention the activities of the petitioner were prejudicial to the maintenance of public order and had disturbed the normalcy of the society. An F.I.R. was lodged against him on 01.10.2019 at 5:30 O'clock as Crime No.180/2019 under Sections 147, 148, 149, 302, 506 & 120B I.P.C. at Police Station Pipri, District Sonebhadra. While petitioner was in jail in that case, the in-charge of Police Station Pipri sent a report to Superintendent of Police, Sonebhadra alleging that on 30.09.2019 at about 10:00 P.M. Chairman Renukoot, Shiv Pratap Singh aged about 38 years R/o Hanuman Singh Katra Renukoot was present in his residential office. Ajit Kushwaha, Dilip Pareeda and Rinku were also there. Younger brother of Shiv Pratap Singh @ Dablu Singh was sitting out of office. While Shiv Pratap Singh was hearing the problems of public, all of a sudden two boys on motorcycles arrived at opposite side of the road and getting their motorcycles stood there, came towards the office. One of the boy was standing out of office and other boy entered into the room. He bade namaste to Chairman Shiv Pratap Singh. He could not heed towards the boy on account of talk on phone. That boy opened fire upon him which pierced on the left side chest of Shiv Pratap Singh. Meanwhile, other boy also opened fire which stroke at the door. People present there tried to catch them but failed and culprits having reached at the divider on the road, fired in the air and fled away. Shiv Pratap Singh was brought to the Hospital at Hindalco from where he was referred to Trauma Center, Varanasi. On 01.10.2019 at about 2:30 A.M. he succumbed to injuries.

5. During investigation, it came into light that Anil Singh brother of petitioner was Ex-Chairman of Renukoot and deceased Shiv Pratap Singh was present Chairman. There was enmity because brother of petitioner was defeated in election of Chairman, Nagar Panchayat. Shiv Pratap Singh and members of his family caused injuries to the brother