# Jitendra Yadav v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 1018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-07-31
- **Case number:** Civil Misc. Habeas Corpus Writ Petition No. 8528 of 2015
- **Bench:** Bala Krishna Narayana, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-yadav-v-state-of-u-p-ors-43219
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-detention
order-on solitary incident-while petitioner
was already in jail under judicial custodysatisfaction
regarding
possibility
of
repetition
of
said
misconduct-helddetention not sustainable-quashed.
Held: Para-12
Learned counsel for the respondents have
further failed to draw our attention to any
material
which
was
placed
by
the
sponsoring authority before the detaining
authority respondent no.3 for recording his
satisfaction that there was every likelihood
of the petitioner being released on bail and
even the fleeting reference made in the
impugned order that the petitioner was
trying to obtain bail does not appear to be
based on any material whatsoever.
Case Law discussed:
2013 Legal Eagle (Ald.) 2177

## Text

1018
 INDIAN LAW REPORTS ALLAHABAD SERIES
would have to be scrupulously observed. It
would not be open to the Court to hold that
notwithstanding such a clear condition, an
application which has not been received by
the last date should be entertained. The
Commission has given an option to
candidates of submitting their applications in
the hard copy by either of the two modes,
namely by registered post or by personal
delivery. A candidate who has opted for one
of the two modes, is required to comply with
the condition that all the requisite four stages
are completed within the time stipulated.
23. The reference is answered
accordingly. The petition shall now be
placed before the regular bench for
disposal in the light of the reference
answered.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.07.2015
BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Civil Misc. Habeas Corpus Writ Petition
No. 8528 of 2015
Jitendra Yadav
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Ram Niwas Singh, Sri Vinay Kr. Singh
Chandel
Counsel for the Respondents:
A.G.A., A.S.G.I. (2015/0271)
Constitution of India, Art.-226-detention
order-on solitary incident-while petitioner
was already in jail under judicial custodysatisfaction
regarding
possibility
of
repetition
of
said
misconduct-helddetention not sustainable-quashed.
Held: Para-12
Learned counsel for the respondents have
further failed to draw our attention to any
material
which
was
placed
by
the
sponsoring authority before the detaining
authority respondent no.3 for recording his
satisfaction that there was every likelihood
of the petitioner being released on bail and
even the fleeting reference made in the
impugned order that the petitioner was
trying to obtain bail does not appear to be
based on any material whatsoever.
Case Law discussed:
2013 Legal Eagle (Ald.) 2177
(Delivered by Hon'ble B.K. Narayana, J.)
1. Heard learned counsel for the
petitioner, Sri. J.K.Upadhyay, lerned
AGA for the State and Sri Brij Lal,
learned counsel for the Union of India.
2. This habeas corpus writ petition
has been filed on behalf of the petitioner
Jitendra Kumar with a prayer to isssue a
writ order of direction in the nature of
certiorari
quashing
the
impugned
detention order dated 28.10.2014 passed
by District Magistrate, Ballia (Annexure1) to the writ petition. Further prayer has
been made to issue a writ order or
direction in the nature of habeas corpus
commanding the respondent nos. 1, 2 and
3 to set the petitioner, who is presently
detained in District Jail, Ballia, at liberty.
3. The facts of the case in brief are
that the District Magistrate, Ballia passed
the order dated 28.10.2014 in exercise of
the powers conferred on him under
Section 3(2) of the National Security Act
(hereinafter referred to as 'NSA') while
the petitioner was in District Jail, Ballia
on account of his being accused of case
crime no. 420 of 2014, under Sections
147, 148, 149, 307, 386 and 279 IPC and
2 All]
 Jitendra Yadav Vs. State of U.P. & Ors.
1019
7 Crl. Law Amendment Act. The copy of
the detention order and the grounds of
detention and all other connected papers
were served upon the petitioner while he
was in jail in connection with the aforesaid
case
crime.
The
petitioner
made
a
representation to the Chairman, Advisory
Boad, Lucknow, annexure-3 to the writ
petition. The detention order was approved
by the State Government respondent no.1
vide order dated 12.12.2014 Annexure-4 to
the writ petition.
4. Learned counsel for the petitioner
submitted that the impugned detention
order has been passed by the respondent
no.3 against the petitioner on account of
his alleged participation in a solitary
incident which had taken place on
23.07.2014 at about 11.30 a.m. in
Bahadurpur Chatti, P.S. Kotwali, District
Ballia, on the basis of which case crime
no. 420 of 2014, was registered against
the
petitioner
and
other
accused.
Advancing
his
submissions
further,
learned
counsel
for
the
petitioner
submitted that since the impugned order
of preventive detention was passed by the
respondent no.3 while the petitioner was
in prison as a person under judicial
custody, it was incumbent upon the
detaining authority respondent no.3 while
passing impugned order of detention to
record therein that there was strong
possibility of the detenue being released
on bail from the said judicial custody, the
detaining
authority
respondent
no.3
having
failed
to
record
any
such
satisfaction in the impugned order the
same stands vitiated and liable to be set
aside.
5. He next submitted that a valid
detention order should reflect that the
authority was aware that the detenu was
already in prison under judicial custody
and there was reliable material before him
on the basis of which he had reason to
believe that there was every possibility of
the detenu being released on bail and in
case of such release the detenu would
indulge in prejudicial activities and in
order to prevent him from indulging in
any activities affecting the public order or
the tranquillity of the community, it was
imperative to pass an order for his
preventive detention and unless the
aforesaid satisfaction is recorded, the
application of mind by the detaining
authority cannot be proved and testing the
impugned
order
on
the
aforesaid
principle, the impugned order appears to
suffer from vice of complete non
application of mind.
6. Per contra learned AGA and Sri
Brij Lal, learned counsel for the Union of
India made their submission in support of
the impugned order.
7. We have very carefully perused
the impugned order as well as other
material brought on record.
8. A careful reading of the grounds of
detention supplied to the petitioner under
Section 8 of the Act along with the detention
order (Annexure-2) reveals that the same
merely contains a passing reference to the
fact that the petitioner who was in District
Jail, Ballia on account of his being involved
in case crime no. 420 of 2014 was making
efforts to obtain bail. The impugned order
does not contain any furhter recital to the
effect that the petitioner had moved a bail
application and there was every likelihood of
his being released on bail and in the absence
of any such satisfaction being recorded in the
impugned order, recording subsequently
therein that upon being released on bail, he
1020
 INDIAN LAW REPORTS ALLAHABAD SERIES
may again indulge in criminal activities,
which may be prejudicial to the public order,
will not validate the impugned order.
9. Even for recording the satisfaction in
the impugned order, that the petitioner was
making efforts to obtain bail, there was no
material before the detaining authority except
the confidential report of Superintendent of
Police, Ballia and even the aforesaid report of
the
Superintendent
of
Police
dated
24.10.2014, copy whereof has been filed as
Annexure-9 to the writ petition, does not refer
to any material in this regard.
10. A Division Bench of this Court in
2013 Legal Eagle (Ald.) 2177 reported in
Cheeku Badla Vs. Superintendent, District
Jail,
Bulandshahar
and
others,
while
examining the legal impact of the failure of
the detaining authoirty to record in the order
of preventive detention passed with regard to
a detenu already in prison as a person under
judicial custody "that there was possibility of
the detenue being released on bail from said
judicial custody", has held hereunder :
"Considering the submission made by
the learned counsel for the petitioner and the
learned A.G.A. for the State of U.P. and from
the perusal of the record it appears that in the
grounds of detention, it is mentioned that the
petitioner is making efforts/trying to get the
bail but for recording such satisfaction there
was no material before the detaining
authority, even the sponsored authority has
not committed any error to show that the
petitioner was trying or making efforts for
releasing on bail, merely on the ground that
the detenu was trying to release or trying for
releasing on bail, is not sufficient to satisfy the
detaining authority to answer that there was
real possibility of releasing the detenu on bail
and he shall involve in prejudicial activities
after releasing on bail, this ground has been
taken on the basis of information given by the
Pairokar of P.S. Lalkurti to verify this
information detaining authority did not
summon the record by which the bail
application of the petitioner was rejected by
the Additional District & Sessions Judge,
Court No. 18 Meerut and the application
moved before the High Court, shows that the
such satisfaction recorded by the detaining
authority is not subjective but it is based on
hearsay even on the basis of information
given by the Pairokar of P.S. Lalkurti
detaining authority has not recorded his
satisfaction that there was real possibility of
releasing of the petitioner on bail. The
Supreme Court of India observed in the case
of Haradhan Saha Versus State of Bengal,
(1975) 3 SCC 198; AIR 1975 S.C. 2151 in its
paragraph No 35 that "where the concerned
person is actually in jail custody at the time
when the order of detention is passed against
him, and is not likely to be released for a fair
long time, it may be possible to contend that
there could be no satisfaction on the part of
the detaining authority as to the likelihood of
such a person indulging in the activities which
would jeopardised the security of the State or
the public order." The Supreme court have
laid down principles as to when the such
detention order can be passed, In this regard,
the leading case is reported in (1991) 1 SCC
128, Kamarunnissa Vs. Union of India and
another; which has been followed in the case
of Veeramani Vs. State of Tamil Naduu;
(2006) 2 SCC 664, TV Sravanan alias SAR
Prasana Venkatachaariar Chaturvedi Vs.
State through Secretary and another; JT 2003
(Suppl 2) SC 503 Union of India Vs. Paul
Manickam and another. It has been held by
the Supreme Court of India in paragraph 13
of Kamarunnisa case;-
" From the catena of decisions referred to
above, it seems clear to us that even in the case
of a person in custody a detention order can
validly be passed(1) if the authority passing the
2 All] Moti Lal Vs. D.D.C. Jhanshi & Ors.
1021
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 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 his behalf, such an order can
not 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 if before a higher
court."
The above mention conditions should be
satisfied for the above valid detention or
against the person in custody, one of the
condition is that there should be real
possibility of the person being released on
bail."
11.
Learned AGA and Sri Brij Lal,
learned counsel for the Union of India
despite making elaborate submissions failed
to demonstrate that the detaining authority
had recorded his satisfaction in the impugned
order that the petitioner who was in prison
had moved a bail application for his released
and there was strong possibility of his being
released on bail.
12. Learned counsel for the respondents
have further failed to draw our attention to any
material which was placed by the sponsoring
authority before the detaining authority
respondent no.3 for recording his satisfaction
that there was every likelihood of the petitioner
being released on bail and even the fleeting
reference made in the impugned order that the
petitioner was trying to obtain bail does not
appear to be based on any material whatsoever.
13.
For the aforesaid reasons and
keeping in view the settled law on the issue,
we are of the view that the impugned order
cannot be sustained and is liable to be
quashed.
14. The writ petition is allowed. The
impugned order dated 28.10.2014 passed
by the respondent no.3 Annexure -1 to the
writ petition is hereby quashed. The
petitioner shall be released forthwith if he
is not wanted in any other case.
15. There shall however be no order
as to costs.
16. The Registrar General of this
Court is directed to communicate this
order to Superintendent of Police, Ballia
for necessary follow up action.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2015
BEFORE
THE HON'BLE ANJANI KUMAR MISHRA, J.
C.M.W.P. No. 9826 of 1979
Moti Lal
 ...Petitioner
Versus
D.D.C. Jhansi & Ors.
...Respondents
Counsel for the Petitioner:
Sri D.P. Singh, Sri Haider Husain, Sri R.P.
Srivastava, Sri S.P. Sharma
Counsel for the Respondents:
S.C., Sri N.B. Nigam, Sri Y.K. Sinha, Sri
Shyam Kumar Srivastava
U.P.Z.A. & L.R. Act-1955-Section 155 and
164-mortgage with possession-amounts
to
sale-transfer
of
possession
not
actually done-contrary to contents of
deed-can not be considered-in terms of
Section 92 of Evidence Act.
Held: Para-20 & 21