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Mahmood vs Union Of India And 3 Others on 1 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved

Court No. – 42

Case :- HABEAS CORPUS WRIT PETITION No. – 719 of 2019

Petitioner :- Mahmood

Respondent :- Union Of India And 3 Others

Counsel for Petitioner :- Gaurav Kakkar,Saurabh Kesarwani

Counsel for Respondent :- A.S.G.I.,Deepak Mishra,G.A.,Prahlad Kumar Khare

Hon’ble Manoj Misra,J.

Hon’ble Pankaj Bhatia,J.

(Delivered by Hon’ble Pankaj Bhatia, J.)

Heard Sri Saurabh Kesarwani for the petitioner, Sri Deepak Mishra, learned A.G.A. for the respondents 2, 3 and 4, Sri Prahlad Kumar Khare for the Union of India and perused the record.

The present habeas corpus petition seeks release of the petitioner Mahmood currently in detention in pursuance to the detention order dated 20th May, 2019 passed by the District Magistrate, Bijnor (respondent no. 3) in exercise of powers under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the ”N.S.A. Act’).

A perusal of the record reveals that an F.I.R. dated 27.3.2019 was registered as Case Crime No. 178 of 2019, under Sections 323/376 IPC read with Section 3/4 POCSO Act, at Police Station Najibabad, District Bijnor. In pursuance to the said F.I.R., the detenue (petitioner) was arrested on 29.3.2019 and is in detention since then. It has been brought on record that after the arrest of the petitioner, during the investigation of the case, the statement of prosecutrix namely Wasiya, aged about 10 years, was recorded under Section 161 Cr.P.C. on 28.3.2019 (Annexure-10 to the petition). The Investigating Officer also recovered the blood stained clothes of the prosecutrix from the home of the informant on 28.3.2019 and the statement under Section 164 Cr.P.C. of the victim was recorded on 30th March, 2019 (Annexure-13 to the petition).

A perusal of the F.I.R. in question reveals that the informant disclosed that on 26.3.2019 at about 7:30 P.M. the younger sister of the informant, namely, Wasiya, aged about 10 years, had gone to purchase certain things to Jalalabad Bazar and when after sufficient time having elapsed, she did not return back home, then the informant and his brother Islam went in search of Wasiya. They reached the softy shop of one Prakash, who informed them that a little while ago, a small girl had come with a boy, who has purchased softy for her and has taken her with him. It was also stated that there were two persons, namely, Altaf son of Ismail and Mukeem son of Ehsan, both residents of Jalalabad, who informed that they had seen the petitioner taking the girl with him after purchasing a softy. On receiving the said information, they searched for the girl here and there and found her in a bad condition behind the shop of Sarfaraj Hardware. She was physically injured and mentally disturbed with many marks on her face and other places of her body. On questioning, Wasiya informed that the petitioner, whom the girl recognizes, had done wrong things to her. With the said allegations, the F.I.R. was lodged against the petitioner. Thereafter, the informant gave a statement which was in consonance with the allegations levelled in the F.I.R. He also stated that when the girl was brought back home, the wife of the informant was informed that blood was coming out of the private parts of the girl.

The Investigating Officer also recorded the statement of the prosecutrix Km. Wasiya under Section 161 Cr.P.C., wherein she deposed that she was sent for purchasing certain goods where Mahmood, the petitioner, met her and give money to her and purchased a softy for her and thereafter at a secluded place assaulted her and on her shouting he left her. Subsequently, the statement of the prosecutrix was also recorded under Section 164 Cr.P.C., wherein she deposed that the petitioner had done wrong things to her. She further stated that at about 11:00 A.M. she had gone to the Bazar to find her sister where the petitioner, under the pretext of purchasing softy, took her with him and thrashed her and, after removing her clothes, did wrong things to her.

To secure detention of the petitioner under the N.S.A. Act, the Inspector In-charge of Police Station Najibabad, District Bijnor, sent a report, dated 8.5.2019, to the S.P. Bijnor (Annexure-3 to the petition). In the said report, besides the details of the aforesaid offence committed by the petitioner, it was stated that on account of the said incident, the public order was disturbed as the people of the area started sloganeering and protesting by shutting their shops against the nature of offence that was allegedly committed by the petitioner. It was also reported that on account of the said incident, the people were closing their doors and were worried about the safety of their children and were also apprehensive in sending their children to the school. It was also reported that to control the situation additional force had to be deployed and people had to be assured with regard to arrest of the accused. It was also reported that the said incident was widely published in the newspaper on the next date, which corroborates that there had been adverse affect on the public order on account of the said incident. Finally, it was reported that the petitioner is in custody at the District Jail, Bijnor and is trying for his release on bail; that he has filed a bail application through his advocate in the Court of Additional District Sessions Judge, Court No. 1/POCSO Court, Bijnor, which is pending for hearing; and there the accused is likely to be released on bail. It was reported that on being free from the prison, there is all likelihood that he may commit the offence again which will disrupt the public order.

The Superintendent of Police, District Bijnor, vide his report dated 16.5.2019 sent to the District Magistrate, Bijnor (Annexure-6 to the petition) after repeating what has been reported to him reported that the petitioner is in custody in the District Prison and is trying for his release on bail, for which an application has been filed through his advocate and if he is released on bail, then there are all chances of his repeating similar offences which are likely to have an adverse affect on the public order. Thus he recommended petitioner’s detention under the N.S.A. Act.

Based upon the said two reports, District Magistrate formulated the grounds of detention and proceeded to pass an order of detention on 20th May, 2019.

In the grounds of detention, the District Magistrate after narrating the entire incident and what was reported to him observed that there is all likelihood of the petitioner being released on bail and there are chances that on being released on bail, a similar offence may be repeated which will have an adverse affect on the public order.

The detention order dated 20th May, 2019 was duly confirmed by the State of U.P. vide order dated 29.5.2019 (Annexure-2 to the petition).

Counsel for the petitioner has argued that the petitioner has no criminal antecedents; that based upon a solitary incident, the respondent authorities were not justified in passing the detention order, as the petitioner is already facing criminal trial for the offences; that there is no reason recorded by the District Magistrate as to on what basis he was satisfied that the petitioner is likely to be released on bail; that the incident in question can in the worst case scenario be termed as a law and order problem and in no way can it be treated as to have disturbed public order; and that there is no material on record for the District Magistrate to have been satisfied that on being released on bail, the petitioner would commit a similar offence. He has also argued that as the petitioner was already under custody there was no valid reason to passing a detention order. He has also informed the Court that the bail application filed by the petitioner and pending at the time of passing of the detention order was not pressed and as on date there is no bail application pending consideration before any court.

Counsel for the petitioner has extensively relied upon the judgment of the Apex Court in the cases of Sudhir Kumar Saha v. The Commissioner of Police, Calcutta and Ors, AIR 1970 SC 814, Rameshwar Shaw v. District Magistrate, Burdwan and Ors, AIR 1964 SC 334 and judgment of this Court in the case of Akhtar Hussain v. Union of India and Others, judgment dated 5.12.2018 passed in Habeas Corpus Writ Petition No. 3547 of 2018.

Learned A.G.A. on the other hand has argued that the offences committed by the petitioner were so heinous that they had an adverse affect on the public order which is described in detail in the grounds of detention as well as the report submitted before the District Magistrate. He has further argued that the incident in question cannot be treated like a normal case of rape inasmuch as the petitioner was a stranger to the prosecutrix and thus offence committed by him has to be seen keeping in mind the depravity of the mental state of the petitioner. He has thus argued that his release would be detrimental to the public order. Hence, he has prayed that the petition be dismissed.

Learned A.G.A. placed reliance on the judgment of the Apex Court in the case of Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228 so as to contend that where activities of a person are such that it breeds a sense of insecurity in the mind of girls of the community at large, the same would affect public order. The learned A.G.A. relied on decision of this Court dated 17.09.2019 passed in Habeas Corpus Writ Petition No. 562 of 2019: Aashif v. State of U.P. and others so as to contend that even a solitary incident could form basis of satisfaction to preventively detain a person.

Considering the submissions made at the bar as well as on perusal of the record and on plain reading of the provisions of the N.S.A. Act, what is to be seen is whether the offence in question warranted detention of the petitioner in exercise of powers under Section 3(2) of the N.S.A. Act.

It is well settled that personal liberty as guaranteed under Article 21 read with Article 22 of the Constitution of India is sacrosanct and is at the highest pedestal of the freedoms guaranteed under the Constitution of India and the same can be taken away only as per the procedure prescribed by law. Section 3(2) of the N.S.A. Act is as follows:-

“(2) The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.

Explanation.–For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.”

From a plain reading of the provisions of the Act, it is clear that the Central Government or the State Government prior to passing of the detention order has to be satisfied that any person, if not detained, is likely to act in any manner which is:-

a. prejudicial to the security of the State; or

b. prejudicial to the maintenance of the public order; or

c. prejudicial to the maintenance of supply and services essential to the community.

Now, we shall consider the various precedents cited at the Bar.

The Hon’ble Apex Court in the case of Arun Ghosh (Supra) while deciding the question of validity of a detention order passed in the case of a person who was facing charges on the grounds such as anti social activities including rioting, assault and undue harassment of respectable young ladies in the public street of Malda town, having been made accused of doing such acts on as many as eight occasions, proceeded to observe as under:-

“An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different.

Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public tranquillity there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies.

It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society.”

The Apex Court further recorded that all the acts of molestation were directed against the family of one person and not against the women in general from the locality and even the assaults were individual and after recording that the conduct may be reprehensible but it does not add up to the situation where it may be said that the community at large was being disturbed proceeded to quash the detention order.

The Apex Court relying on the earlier judgment of Dr. Ram Manohar Lohiya v. State of Bihar, 1966 CrLJ 608 held that whether an ”act’ has adversely affected the ”public order’ is to be determined in the facts of each case.

The learned counsel for the petitioner has argued that the present case is based upon a solitary incident and by no stretch of logic can it be said that the said act would affect the community at large.

The next decision relied upon by the counsel for the petitioner is in the case of Akhtar Hussain (Supra). In the said case, the detention order was passed against a person who was a Gram Pradhan and had assaulted a young girl in connection with which an F.I.R. was registered against the said Gram Pradhan under Sections 376, 452, 506, 504 I.P.C. and Section 3 /4 POCSO Act. In pursuance of the said F.I.R., a detention order was passed under N.S.A. Act. It was argued before the Court that it was a case of solitary incident and there was nothing on record to show that the detaining authority had applied its mind with regard to the criminal antecedents of the accused. It was also argued that the detaining authority erred while recording the satisfaction that there was a likelihood of the petitioner being released on bail and on release would again indulge in similar offences affecting the public order. The Court after considering the submissions made before it, by relying upon the judgments of the Apex Court in the cases of Shashi Agarwal v. State of U.P. and others, 1988 (1) SCC 436 and Rameshwar Shaw v. District Magistrate, Burdwan another, AIR 1964 SC 334 and also judgments of this Court in Habeas Corpus Writ Petition No. 55685 of 2017, Haji Akhlakh vs. Union of India and others (decided on 30.3.2018); Habeas Corpus Writ Petition No. 3094 of 2018, Istakaar and Another vs. Union of India and others (decided on 4.9.2018); and Habeas Corpus Writ Petition No. 3181 of 2018, Sudhir vs. Union of India and others (decided on 8.10.2018), observed as under:-

“We are constrained to observe that no material justifying the apprehension that detenue would indulge in prejudicial activities in case of his being released on bail was placed before the respondent no.3. In our opinion the bald statement made in the grounds of detention that the petitioner upon being released on bail would repeat his criminal activities prejudicially affecting the maintenance of public order, was not enough to justify passing of an order of preventive detention against him. We stand fortified in our view by the law laid down by the Apex Court in the case of Shashi Agarwal Vs. State of U.P. and others reported in 1988 (1) SCC 436 and Rameshwar Shaw Vs. District Magistrate, Burdwan another reported in AIR 1964 SC 334.”

The Court had also considered the judgment of the Apex Court in the case of Dharmendra Suganchand Chelawat Suganchand Kanhaiyyalal vs. Union of India, AIR 1990 SC 1196, wherein it was held that to detain a person already in jail the detention order must pass the following tests: (i) that the detaining authority was aware of the fact that the detenue is already in detention; and (ii) that there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression “compelling reasons” in the context of making an order of detention with regard to a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it has to be satisfied that (a) the detenue is likely to be released from custody in near future and (b) taking into account the nature of the antecedent activities of the detenue, 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. In Akhtar Hussain’s case (supra) this Court on the basis of material on record found that there was nothing to hold that there was any likelihood of the petitioner, after release on bail, indulge in prejudicial activities affecting the public order. Thus, the detention order, which was based on a solitary case, was quashed.

The next judgment referred to buttress the argument is the judgment of this Court in the case of Kumail (Supra) wherein this Court, while dealing with a detention order passed against a person who was already in judicial custody, upon a conspectus of case laws culled out the legal principles as under:

“A conspectus of the decisions of the apex court noticed above would show that the law is that even in the 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 to 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. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. The reason to believe that there is likelihood or real possibility of the person being released on bail must be based on cogent material and not mere ipse dixit of the authority. Such satisfaction can be drawn on the basis of reports of the sponsoring authority, the nature of the offence(s) in connection with which the detenu is in jail as also the facts and circumstances of that case including grant of bail to co-accused or general practice of courts in such matters. But once challenge is laid with regard to existence of such satisfaction, then the detaining authority in its return / affidavit must disclose existence of such satisfaction and the materials on the basis of which it has been drawn. However, if in the return it is demonstrated that satisfaction was drawn and there existed material to draw such satisfaction, the same cannot ordinarily be interfered with on the ground of insufficiency of material.”

After noticing the legal position, the Court proceeded to quash the detention order.

The next case cited at the bar is the judgment in the case of Aashif (Supra) wherein this Court after noticing the decision of the nine-judges Bench of the Apex Court in the case of Attorney General For India v. Amratlal Prajivandas and others, 1994 (5) SCC 54 as well as the case of Surya Prakash Sharma v. State of U.P. and Others, 1994 (Supp.) (3) SCC 195 on the issue as to when on the basis of solitary case a detention order may be justified, held as under:-

“From the decisions noticed above, what is clear is that though ordinarily a solitary act may not be sufficient to sustain an order of preventive detention but where that act is of such a nature that it is reflective of, or has manifestation of, an organized criminal activity, or is so grave that it reflects the propensity of that person to repeat such an act, then even a solitary act could well be made basis for passing an order of preventive detention.”

In another case, the Hon’ble Supreme Court while considering the validity of detention order in a case where person is already in custody, in the case of Huidrom Konungjao Singh v. State of Manipur and Others, (2012) 7 SCC 181, placing reliance on earlier judgment in the case of Rekha v. State of T.N., held as under:-

“9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:

(1) The authority was fully aware of the fact that the detenu was actually in custody.

(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.

In case either of these facts does not exist the detention order would stand vitiated. The present case requires to be examined in the light of the aforesaid settled legal proposition.

12. In Rekha v. State of T.N. [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] this Court while dealing with the issue held: (SCC pp. 250-51 254-55, paras 7, 10 27)

“7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other co-accused in cases on the same footing as the case of the accused. …

* * *

10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being released on bail, because it is the normal practice of most courts that if a co-accused has been granted bail and his case is on the same footing as that of the petitioner, then the petitioner is ordinarily granted bail. … A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored.

* * *

27. In our opinion, there is a real possibility of release of a person on bail who is already in custody [Ed.: Matter between two asterisks emphasised in original as well.] provided he has moved a bail application which is pending [Ed.: Matter between two asterisks emphasised in original as well.] . It follows logically that if no bail application is pending, then there is no likelihood of the person in custody being released on bail, and hence the detention order will be illegal. However, there can be an exception to this rule, that is, where a co-accused whose case stands on the same footing had been granted bail. In such cases, the detaining authority can reasonably conclude that there is likelihood of the detenu being released on bail even though no bail application of his is pending, since most courts normally grant bail on this ground.”

(emphasis added)

Thus, it is evident from the aforesaid judgment that it is not the similar case i.e. involving similar offence. It should be that the co-accused in the same offence is enlarged on bail and on the basis of which the detenu could be enlarged on bail.

15. In the instant case, admittedly, the said bail orders do not relate to the co-accused in the same case. The accused released in those cases on bail had no concern with the present case. Merely, because somebody else in similar cases had been granted bail, there could be no presumption that in the instant case had the detenu applied for bail could have been released on bail. Thus, as the detenu in the instant case has not moved the bail application and no other co-accused, if any, had been enlarged on bail, resorting to the provisions of the Act was not permissible. Therefore, the impugned order of detention is based on mere ipse dixit statement in the grounds of detention and cannot be sustained in the eye of the law.”

In yet another case, a three-judges bench of the Hon’ble Apex Court in its judgment, reported in (2012) 2 SCC 176, Yumman Ongbi Lembi Leima v. State of Manipur and others, proceeded to hold as under:-

“6. On a perusal of the grounds of detention, it is clear that the subjective satisfaction of the detaining authority is founded on the belief that after having availed of the bail facility, the appellant’s husband could indulge in commission of further prejudicial activities. An alternative preventive measure was, therefore, immediately needed in the circumstances.

23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention.

24. Article 21 of the Constitution enjoins that:

“21. Protection of life and personal liberty.–No person shall be deprived of his life or personal liberty except according to procedure established by law.”

In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution.

25. When the courts thought it fit to release the appellant’s husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified.

26. In addition to the above, the FIRs in respect of which the appellant’s husband had been arrested relate to the years 1994, 1995 and 1998 respectively, whereas the order of detention was passed against him on 31-1-2011, almost 12 years after the last FIR No. 190(5)98 IPS under Section 13 of the Unlawful Activities (Prevention) Act. There is no live link between the earlier incidents and the incident in respect of which the detention order had been passed.

27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention.

28. In our view, the detaining authority acted rather casually in the matter in issuing the order of detention and the High Court also appears to have missed the right to liberty as contained in Article 21 of the Constitution and Article 22(2) thereof, as well as the provisions of Section 167 of the Code of Criminal Procedure.”

The Hon’ble Supreme Court further in the case of (2012) 2 SCC 386, Munagala Yadamma v. State of Andhra Pradesh and Others held as under:-

“7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions.”

On the basis of the judgments cited above, what is to be considered is whether the preventive detention of the petitioner under National Security Act was justified considering the fact that the petitioner was already in detention. A close perusal of the reasons for detention does not reveal that there was any material before the District Magistrate except the bail application (Annexure-61 to the grounds of detention) to record a satisfaction that the petitioner was likely to be released on bail. The reasons for detention do not disclose any application of mind keeping in view the fact that the petitioner did not have any criminal antecedents except for this solitary case, in which the petitioner was an accused. As to how the District Magistrate could record a satisfaction that the petitioner if enlarged on bail is likely to repeat the offence of the nature of which the petitioner is accused, adversely affecting the public order, is any body’s guess.

The propensity of a person repeating the offence can be gathered either by criminal antecedents or on some other material showing the propensity of the accused to commit or repeat an offence. We are afraid no such material existed on record before the District Magistrate leading to an inference or justifying the satisfaction that detenue if released on bail shall indulge in similar act.

In the present case although the District Magistrate has recorded that the petitioner is likely to be released on bail but there is no material as to how the said finding was recorded when only the bail application was before him. There was no material placed before the District Magistrate either by the Superintendent of Police or the Inspector except their opinion which cannot be said to be ”material’ enough to form a subjective satisfaction, particularly, when offences in respect of sexual assault punishable under POCSO Act are considered very serious and bail is not ordinarily granted in such cases. Although, the District Magistrate has recorded that if the petitioner is enlarged on bail, there is likelihood of the petitioner indulging in similar offences thereby adversely affecting the public order, but there is no material on record to justify the said satisfaction as the petitioner did not have any criminal antecedents and there was no other report on record to indicate the propensity of the petitioner for repeating the offence of the nature for which he was accused and facing trial.

On the consideration of the law as extracted above as well as the material placed before us, we have no hesitation in holding that the detention order passed by the District Magistrate does not satisfy the test as laid down by the Apex Court and the rigours of law which are required to be established before taking a decision of preventive detention. The detention order is thus liable to be quashed.

The habeas corpus petition is allowed and the detention order dated 20th May, 2019 is quashed. The petitioner shall be released forthwith unless wanted in any other case.

Order Date :- 01.11.2019

SR

 

 

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