A. Banerji, J.:— The petitioner has come up to this Court under Art. 226 of the Constitution against an order passed by the District Magistrate, Moradabad, dated 6th of Nov. 1982 (Annexure-I) to the writ petition. The order was passed under S. 3(2) of the National Security Act. According to the petitioner, the order is yet to be served on him. The petitioner stated that although the order was passed on the 6th of Nov., 1982, it has not yet been served on him. He further states that although he was in jail in connection with Crime No. 463/82 under S. 302/201, IPC, but no effort was made to serve the impugned order dated 6th Nov., 1982. Further, the petitioner was an accused in Sessions Trial No. 43/83 and was attending the Court almost every day and in spite of the knowledge about this Case, the impugned order was not served on him. The petitioner also states that the Sessions Trial ended in acquittal for him in Sept, 1984. He has also asserted that he is a respected law abiding citizen and the reasons contained in Annexure-II for passing the impugned order (Annexure-I to the writ petition) are baseless and erroneous. His case further is that the order passed by the District Magistrate does not show that there was application of mind, but it appears that the order was passed in a mechanical way without application of mind.
2. A perusal of Annexure-II to the writ petition indicates that the area of Jama Masjid in the city of Moradabad was a sensitive area in respect of communal disturbances. In Sept, 1982, two dead bodies were found in the area on two different dates which increased the tension in the entire city. Festival of Baqrid was celebrated on the 28th Sept, 1982 in the midst of very acute tension. On the 29th Sept, 1982 some Hindus attacked two Muslims near Ram Ganga Bridge, one of whom was killed on the spot and the other received grievous injuries. The petitioner along with 15 other persons made a plan for killing Hindus. Further recital indicates that a photographer Kuldeep was taken by Dr. Atkar near the Masjid where the photographer was killed and his body was put in the main-hole connecting the sewer. The dead body was recovered on the 4th of Oct, 1982 for which Crime No. 463/82 under S. 302/201, IPC was registered. It then recites that the petitioner openly displayed communal feelings with an aim to take revenge and to murder Hindus in the City of Moradabad which led to an atmosphere of fear and tension and this in its turn encouraged Hindus to retaliate. All Schools, Colleges, Factories were closed as a result of petitioner's activities and law and order situation in the city was adversely affected. The District Magistrate then recorded that it was on the basis of these facts that he was satisfied that the petitioner could act in an irresponsible manner which would make it difficult to maintain the law and order and for this reason it was necessary to detain the petitioner. Then followed the usual order i.e regarding making of a representation to the State Government and making an application to the Advisory Board and even asking for personal hearing etc.
3. Learned counsel for the petitioner Shri D.S Misra argued that apart from the petitioner, the District Magistrate had passed orders under National Security Act against many of the persons named along with the petitioner in Annexure-II to the writ petition. Two of them Shahzada Habeas Corpus Writ No. 6311/83 decided on 28-7-1983 (1984 Cri. L.J NOC 1) and Shakkan Civil Misc. Writ No. 6414/83 decided on 9-8-1983, filed Habeas Corpus Petitions in this Court, though separately. Their detention was quashed by separate orders in two separate petitions. In the case of Shahzada, the Division Bench observed that even though the Station Officer, Mughalpura submitted a report on 6-10-1982 suggesting detention of two persons viz., Mumtaz Husain alias Laddan and Mohammad Yunus in connection with the murder of Kuldeep and on the basis of that report the District Magistrate passed an order for their detention, and thereafter the District Magistrate ordered for the detention of four more persons on identical report on 13-10-1982, the District Magistrate did not consider it necessary to detain Shahzada and it was only when the Police submitted a third report seeking his detention that the order for his detention was passed. Their Lordships then observed:
“In his counter affidavit the District Magistrate gives no explanation why he did not consider it necessary to detain the petitioner, when he passed the two earlier detention orders, or what new development took place after the passing of those two detention orders, which persuaded him to believe that the detention of the petitioner was necessary.”
4. Learned counsel urged that the position in regard to the present-petitioner was identical. In the case of Shakkan, the impugned order of detention was passed on 6-11-1982 and the same Division Bench following the decision in the case of Shahzada set aside the detention order against Shakkan also and set him at liberty.
5. In the case of Sk. Serajul v. State Of West Bengal., (1975) 2 SCC 78 : AIR 1975 SC 1517, the Supreme Court has held:
If there is delay in passing the order of detention and in actually arresting the detenu, the genuineness of the “subjective satisfaction” of the detaining authority may be doubted.”
6. Learned counsel urged that the principles laid down by their Lordships of the Supreme Court will be fully applicable in the present case.
7. Learned Standing Counsel appearing for the District Magistrate urged that the writ petition was not maintainable, for the petitioner having known the existence of the detention order ought to have surrendered and then moved this Court under Art. 226 of the Constitution. In other words, his contention was that so long as he did not surrender himself, he was not entitled to any relief. He further contended that the District Magistrate had given adequate reasons in Annexure-II to the writ petition, and the mere fact that the detention order was issued on the 6th of Nov. 1982 would not render it bad nor the detention order was contrary to the provisions of law.
8. We have also perused the affidavit filed by the District Magistrate Shri B.B Singha, and we do not find anything in his affidavit or in Annexure-II to the writ petition as to why action could not be taken between 6th Oct, 1982 and 13th Oct, 1982. Further, we have not been shown any good reason in the affidavit of the District Magistrate as to why the detention order could not be served on the petitioner. The plea that the petitioner was absconding may be true for a certain period, but it could not be established that he had been absconding throughout froth of Nov. 1982. On the contrary there is irrefutable evidence that the petitioner spent most part of December 1983 & January, 1984 in jail in connection with Crime No. 463/82 under S. 302/201 IPC and had been attending Court in Sessions Trial No. 43/83.
9. As a matter of fact, the petitioner obtained bail from this Court and thereafter the petitioner was attending Court in Sessions Trial No. 43/83 and even then the detention order could not be served. The plea trotted out is that the concerned Police Station was not aware that the petitioner was either in jail or attending Court in Sessions Trial. This is not convincing. As indicated earlier, there is no convincing for the inordinate delay in not only passing the detention order but in executing the detention order by serving it on the petitioner. The law laid down by their Lordships of the Supreme Court in the case of Sheikh Serajul v. State of Bengal ((1975) 2 SCC 78 : AIR 1975 SC 1517) (supra) would be applicable with full force.
10. It may be mentioned here that the cases of Shahzada and Shakkan were not decided on technical grounds as it was sought to be made out by the District Magistrate in his counter affidavit. These petitions were decided on the merits, and we see no distinction in those cases and the present one. Almost identical facts arise in the present case. Consequently, the order of detention is bad in law.
11. Now the question is whether an illegal order of detention can be challenged under Art. 226 of the Constitution of India. Of course, a Writ of Habeas Corpus can issue where there is actual illegal detention, but a Writ Court can give relief against the prospect of illegal detention as well. There is a good authority for this proposition in the case of Jayantilal Bhagwandas Shah v. State of Maharashtra, 1981 Cri. L.J 767 by a Division Bench of the Bombay High Court. The view taken by the Division Bench was that the High Court may under Art. 226 of the Constitution issue direction, order or writ in the nature of Mandamus or Certiorari for quashing an illegal order of detention and may by direction, order and writ in the nature of prohibition enjoin the person threatening the illegal detention from executing the threat. The Division Bench further observed that the position of a person under actual detention and one who faces the prospect of detention is not far dissimilar.
12. We are in agreement with the view taken by the learned Judges. We may further observe that in matters of detention there has to be a strict compliance with the requirements of law. The liberty of a citizen is involved and it cannot be interfered with without proper application of mind and without strictly complying with all the requirements of law. The power of detention under National Security Act is very extensive, but it is also well settled that powers under such law are to be exercised with great caution and care. We would stress that the above principles have to be strictly followed in the case of detention under the National Security Act. Having given the matter our anxious consideration, we are satisfied that this is a fit case in which the powers of this Court under Article 226 of the Constitution should be exercised to quash the impugned order of detention dated 6-11-1982. We order accordingly.
13. Petition allowed.