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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Sudha Dubey
  • S.C.Misra
  • K.J.Shukla
  • Daya Shankar Mishra
  • Chandrakesh Mishra
  • Arvind Tripathi
Judges
  • S. Rafat Alam
  • A.C.J
  • Vikram Nath, J.
Acts
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • Sudha Dubey
  • S.C.Misra
  • K.J.Shukla
  • Daya Shankar Mishra
  • Chandrakesh Mishra
  • Arvind Tripathi
Judges
  • S. Rafat Alam
  • A.C.J
  • Vikram Nath, J.
Acts
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The four Writ Petitions challenge the validity of orders of the District Magistrate, Ghaziabad detaining the petitioners under the National Security Act (the Act). The orders impugned were dated 25-9-2004 (Writ Petition No. 55796 of 2004) and 30-9-2004 (the other three Writ Petitions). Counter and rejoinder affidavits were filed and, because the facts and pleadings were similar, the petitions were heard together and disposed of by a common judgment.

The petitioners were detained apparently in connection with Case Crime No. 595 of 2004 at Police Station Sihani Gate, District Ghaziabad, under Sections 147/148/149/307/302 IPC and Section 27 of the Arms Act. The grounds of detention (Annexure-2) state that the petitioners and their associates allegedly engaged in indiscriminate firing at a bus stand at about 8 p.m., resulting in the death of one Sanjay and serious gunshot injuries to Sunil and Rajendra, causing panic and disturbance of public order.

The station officer requested detention; the Senior Superintendent of Police forwarded proposals to the District Magistrate (letters dated 28-9-2004 and 29-9-2004 for the 30-9-2004 order; an earlier report dated 24-9-2004 for the 25-9-2004 order). The District Magistrate passed the orders of detention and the State Government approved detention for one year from the date of the District Magistrate's orders.

Legal Issues Presented

  1. Whether a detaining authority may validly pass an order of preventive detention under the Act against a person who is already in custody without recording his subjective satisfaction that there is an imminent possibility of the detenu being released on bail.
  2. Whether the failure of the detaining authority to record such satisfaction in the order of detention or in the grounds of detention vitiates the detention order.

Arguments of the Parties

Writ Petitioners' Arguments

  • The detention orders are invalid because the detaining authority did not record satisfaction about the imminent possibility of the petitioners (who were already in judicial custody) being released on bail.
  • Detention of a person already in custody is permissible only if the detaining authority is satisfied, on the material placed before him, that the person is likely to be released on bail in the near future and that detention is necessary despite custody.
  • Reliance was placed on the judgment of the Supreme Court in Union of India v. Paul Manickam & Anr (2003) 8 SCC 342 and a certified copy of an order in Kishan Kumar v. State of U.P. & Ors. (dated 13-9-2004) was placed before the Court.
  • It was submitted that bail applications of the petitioners had already been rejected by the Chief Judicial Magistrate and by the District and Sessions Judge before the impugned detention orders were passed, and that no bail application was pending on the date of detention—so there was no material before the detaining authority indicating a likelihood of imminent bail.

Respondents' Arguments

  • The sponsoring authority (Senior Superintendent of Police), in its report (Annexure-3 dated 29-9-2004), had stated that there was every possibility of the detenus being released on bail; the District Magistrate relied on that material and was subjectively satisfied when passing the detention orders.
  • It was contended that there was sufficient material on record to justify an inference that the petitioners were likely to be enlarged on bail and that the District Magistrate was subjectively satisfied on the material available.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Dharmendra Suganchand Chelawat v. Union of India & Ors. (1990) 1 SCC 746 Establishes that an order for detention of a person already in custody can be valid only if: (i) the detaining authority was aware the detenu was already in custody; and (ii) there were compelling reasons justifying detention despite custody. "Compelling reasons" requires cogent material showing (a) the detenu is likely to be released in the near future and (b) taking into account antecedent activities, the detenu is likely to indulge in prejudicial activities after release. The Court relied on this precedent as setting the controlling test; it applied the principle to find that the detaining authority did not record the requisite satisfaction in the grounds, thereby vitiating the detention orders.
Smt. Qamrunnisa v. Union of India & Ors. (1991 (1) SCC 128) Confirms the position that detention of a person already in custody requires the detaining authority's awareness of custody and subjective satisfaction as to imminent possibility of release on bail. The Court cited this decision as one of the authorities following the principle applied in the instant matter, reinforcing that the detaining authority must record awareness and satisfaction.
Union of India v. Paul Manickam & Anr. (2003) 8 SCC 342 Reiterates the settled legal position that where a person is in custody, preventive detention is permissible only if the detaining authority is aware of custody and is subjectively satisfied that detention is necessary because of the likelihood of imminent enlargement on bail. The decision was relied upon by the petitioners and was cited by the Court as part of a series of Supreme Court judgments establishing the rule applied to invalidate the impugned detentions.
Alijan Mian v. District Magistrate, Dhanbad & Ors. (AIR 1983 SC 1130) Observed that the detaining authority must be aware of the custody of the detenu and must record satisfaction regarding the possibility of enlargement on bail for a valid detention of a person already in custody. The Court cited this case to support the proposition that awareness and recorded satisfaction are necessary; it used the authority to bolster the conclusion that the absence of such recorded satisfaction vitiates detention.
N. Meera Rani v. State of Tamilnadu (AIR 1989 SC 2027) Similar proposition: awareness of the detaining authority about custody and satisfaction regarding possibility of enlargement on bail are necessary prerequisites for valid detention of a person already in custody. Cited by the Court alongside other authorities to support the holding that the detaining authority's failure to record satisfaction rendered the detention invalid.
Union of India v. Chhaya Ghoshal (2005 (51) ACC 282) Emphasizes that personal liberty under Article 21 is sacrosanct; detaining authority must show meticulous compliance with procedural safeguards; laws of preventive detention are strictly construed and meticulous procedural compliance, however technical, is mandatory. The Court used this authority to underscore the primacy of Article 21 and the requirement that preventive detention statutes be construed strictly with meticulous procedural compliance.
Kishan Kumar v. State of U.P. & Ors. (order/judgment dated 13-9-2004, Writ Petition No. 18020 of 2004) (Placed before the Court by the petitioners; the opinion indicates a certified copy was produced.) The judgment/order was placed before the Court by petitioners for perusal. The Court does not elaborate further on its application beyond acknowledging its production.

Court's Reasoning and Analysis

The Court proceeded by reference to the facts on record and the settled legal principles established by a series of Supreme Court authorities.

  1. The Court noted the factual backdrop: the petitioners were implicated in a serious incident involving indiscriminate firing at a public place resulting in death and injuries, and the administrative history of the detention proposals and orders (requests by the Station Officer, reports by the Senior Superintendent of Police, orders of the District Magistrate dated 25-9-2004 and 30-9-2004, and State approval for detention for one year).
  2. The legal dispute narrowed to whether the detaining authority complied with the requirement—established by the Supreme Court—that, when detaining a person already in custody, the detaining authority must be aware of the custody and must have cogent material satisfying him that the detenu is likely to be released on bail in the near future and that detention is necessary despite existing custody.
  3. The Court examined the grounds of detention and observed that the detaining authority did not record any satisfaction about the imminent possibility of the petitioners being released on bail. Although the respondents pointed to the Senior Superintendent of Police's report which mentioned the possibility of release on bail, the Court held that such satisfaction must be that of the detaining authority itself and must appear in the order of detention or in the grounds of detention; it cannot be supplied or validated subsequently by means of a counter-affidavit.
  4. Applying the cited precedents, the Court concluded that because the detaining authority failed to record the requisite subjective satisfaction in the detention order or grounds, the detentions were vitiated despite the seriousness of the alleged offences. The Court emphasized that where personal liberty under Article 21 is at stake, procedural safeguards of preventive detention statutes must be strictly and meticulously observed.
  5. Because the petitions succeeded on this procedural ground, the Court declined to address the other contentions raised in the Writ Petitions.

Holding and Implications

HOLDING: All four Writ Petitions succeed and are allowed.

Direct effect on the parties:

  • The respondents are directed to set the Writ Petitioners at liberty forthwith provided they are not required to be detained in any other case.
  • There shall be no order as to costs.

The opinion does not articulate broader implications beyond the direct relief granted to the petitioners. The Court's decision rested on existing precedents concerning the requirements for valid detention of persons already in custody; the judgment invalidated the particular detentions at issue because the detaining authority failed to record the required subjective satisfaction in the order or grounds of detention.

Result: Petitions allowed; detainees to be released forthwith if not required in other cases.

Show full summary ...

    Gajendra Singh v. Adhikshak Janpad Karagar, Janpad, Ghaziabad And Others

    By the Court.-

    In all these four Writ Petitions, the petitioners have questioned the validity of the orders of the District Magistrate, Ghaziabad dated 25-9-2004 in Writ Petition No. 55796 of 2004 and dated 30-9-2004 in the other three Writ Petitions, whereby they have been detained under the provisions of the National Security Act (hereinafter referred to as the Act).

    2. Counter and rejoinder-affidavits have been exchanged between the parties and are on record. Since the accusations and the pleadings in all the four Writ Petitions are similar to each other and also as requested by the learned Counsel for the parties, they were heard together and are being disposed of by this common judgment.

    3. Heard learned Counsel for the Writ Petitioners and the learned Counsel for the respondents.

    4. It appears that the Writ Petitioners are detained on account of their involvement in Case Crime No. 595 of 2004 under Sections 147/148/149/307/302 IPC and Section 27 of the Arms Act Police Station Sihani Gate in the District of Ghaziabad.

    5. The ground of detention is enclosed as Annexure-2 to the Writ Petition. A perusal thereof shows that the allegations against the petitioners briefly stated are that they alongwith their associates made indiscriminate firing, as a result of which, one Sanjay died at the place of occurrence and Sunil and Rajendra sustained serious gun shot injury. It has further been stated that the alleged offence was committed at the bus stand at 8 p.m. on account of which an atmosphere of panic and terror was created in the locality and the people started running helter skelter of their safety as a result of which the public order as disturbed. On the request of the Station Officer, Police Station Sihani Gate, District Ghaziabad vide letter dated 28-9-2004, the Senior Superintendent of Police, Ghaziabad, vide letter dated 29-9-2004 sent the proposal to the District Magistrate to detain the petitioners under the provisions of the Act. The District Magistrate thereafter having satisfied with the material placed before him passed the impugned order on 30-9-2004. In Writ Petition No. 55796 of 2004, the Senior Superintendent of Police sent its report on 24-9-2004 based on the request of Station Officer dated 18-9-2004 and the District Magistrate passed the order on 25-9-2004. The State Government thereafter approved their detention for a period of one year from the date of the order of the District Magistrate.

    6. Learned Counsel for the Writ Petitioners inter alia contended that the impugned order of detention cannot sustain of the simple reason that the detaining authority without recording his satisfaction about the imminent possibility of the petitioners/detenus being released on bail ordered the detention of the petitioners knowing fully well that they are already detained in judicial custody in connection with the aforesaid crime. The contention, in short, is that the order of detention can be passed against a person, already in custody, only when the detaining authority is satisfied on the material placed before him that there is every possibility of that person being released on bail in near future. Reliance is placed on the judgment of the Hon'ble Apex Court in the case of Union of India v. Paul Manickam & Anr. reported in (2003) 8 SCC 342. It is also submitted that the bail applications moved by all the petitioners were already rejected by the Chief Judicial Magistrate and by the District and Sessions Judge concerned much before passing of the impugned order of detention and on the day when the impugned order of detention was passed, no bail application was pending before any Court and, therefore, there was no material before the detaining authority to suggest that the petitioners were likely to be released on bail. It is submitted that in the absence of satisfaction of the District Magistrate regarding possibility of the detenus being released on bail in the near future, the order of detention is vitiated. It is further argued that even this Court held that the order of preventive detention vitiates where the order of preventive detention is made against a person, already in custody, without recording subjective satisfaction about the imminent possibility of being enlarged on bail. A photo copy of the certified copy of the order/judgment dated 13-9- 2004 passed in Writ Petition No. 18020 of 2004, Kishan Kumar v. State of U.P. & Ors., and other connected Writ Petitions was placed before us for perusal.

    7. On the other hand, Sri Arvind Tripathi, learned Additional Government Advocate vehemently opposed the Writ Petitions and drew our attention to the report of the sponsoring authority/Senior Superintendent of Police dated 29-9-2004, contained in Annexure-3 to the Writ Petition, and submitted that the sponsoring authority, in its report had mentioned that there was every possibility of the detenus being released on bail and it was this material upon which, the District Magistrate having been satisfied, passed the order of detention. It is submitted that there was sufficient material on record to infer that the petitioners were likely to be enlarged on bail and the District Magistrate having been subjectively satisfied on the material available in record passed the impugned order of detention.

    8. The question, as to whether the Detaining Authority, while detaining a person, who is already in custody under the provisions of preventive detention, is required to record his satisfaction about the imminent possibility of being released on bail, is no more res integra and has been concluded by a series of judgments of the Hon'ble Apex Court. In the case of Dharmendra Suganchand Chelawat v. Union of India & Ors. reported in 1990(1) JIC 396 (SC) : (1990) 1 SCC 746, the Hon'ble Supreme Court, while considering its earlier judgment observed as under:

    " The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression
    compelling reasons"
    in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities”.

    9. This view was agains followed in the case of Smt. Qamrunnisa v. Union of India & Ors. reported in 1991 (1) SCC 128, and in Union of India v. Paul Manickam & Anr. reported in (2003) 8 SCC 342. Therefore, it is well settled legal position that where a person is in custody, an order of preventive delention can be passed, but it is necessary for the detaining authoority to be a ware of the fact that such person is already in custody and yet he was subjectively satisfied that his order of detention becomes necessary, as there is every possibility of the detenu being enlarged on bail.

    10. In the case, in hand, it is not in dispute that on the date when the order of detention was passed, much prior to that, bail applications of the detenus were rejected by the respective Courts. It is also apparent from a perusal of the grounds of detention that the detaining authority has no where recorded his satisfaction about the imminent possibility of being released on bail, which vitiates the impugned order.

    11. The contention of the learned Additional Government Advocate that there was material on record, as the Senior Superintendent of Police, in its report, has mentioned that there is imminent possibility of the petitioners being released on bail, has no force and cannot be accepted for the reasons that such satisfaction should have been of the detaining authority and it should have been incorporated in the order of detention or in the grounds of detention, and cannot be supplemented by giving counter-affidavit.

    12. In the case of Alijan Mian v. District Magistrate, Dhanbad & Ors. reported in AIR 1983 SC 1130, and in N. Meera Rani v. State of Tamilnadu reported in AIR 1989 SC 2027, the Hon'ble Supreme Court has observed that the awareness of the detaining authority about the custody of the detenu and also the satisfaction regarding possibility of the detenu being enlarged on bail is necessary for passing the order of detention. Therefore, in view of the exposition of law and also in view of the fact that the detaining authority failed to record such satisfaction, the detention of the petitioners under the provisions of the Act is vitiated.

    13. No doubt the alleged offence committed by the petitioners are of serious nature has been committed at a public place, but when it comes to civil liberty of a citizen,which is guaranteed and protected under Article 21, the detaining authority while passing the order of preventive detention has to meticulously accord with the procedure established by the law and the laws of preventive detention are construed strictly and any beach of it, vitiates the order of detention. The Hon'ble Supreme Court in its recent judgment in the case of Union of India v. Chhaya Ghoshal, 2005 (51) ACC 282, observed that personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is an obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by the law and, therefore, the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safegiard, however technical, is mandatory.

    14. Since these petitions deserve to be allowed on the point discussed above, we need not to address on the other contentions raised in the Writ Petitions.

    15. In the result, all the four Writ Petitions succeed and are hereby allowed. The respondents are directed to set the Writ Petitioners at liberty forthwith provided they are not required to be detained in any other case. However, there shall be no order as to costs.

    Pettion allowed.

    -------------------- -

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    Comments

    Gajendra Singh v. Adhikshak Janpad Karagar, Janpad, Ghaziabad And Others
    (Feb 11, 2005)