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TMI Blog1986 (9) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant considerations, the service of the order was not on proper consideration. It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority. The order of detention, therefore, is set aside. - Criminal Appeal No. 317 of 1986 - - - Dated:- 26-9-1986 - Mukharji, Sabyasachi And Pathak, R.S.,JJ. R.K. Garg and Miss Rani Jethmalani for the Appellant D. Goburdhan for the Respondents. JUDGMENT The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Criminal Appeal No. 317 of 1986 arises out of the judgment and order of the High Court of Patna and the Writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn their shutters. Doors and windows were closed. The vehicular traffic came to halt. This refers to Katras P.S. Case No. 331/85 dated 24.12.85 u/s 149/307/32 IPC/27 Arms Act. Besides the aforesaid ground the following cases are also referred hereunder as background to show the criminality of the subject. 1. KATRAS P.S. CASE No. 5/83 dated 3.1.83 u/s 147, 341/353/307 I.P.C. In this case subject and his associates tried to set free the trucks and driver from the police custody by force and when he failed in his attempt he threatened the police officer and CISF Personnel to do away with their lives, C.S.No. 5/83 has already been submitted in this case. 2. Katras P.S. Case No. 303/83 u/s 147/148/452/323 IPC. In this case subject and his as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Krishana Ballav Sahay, General Secretary, Colliery Shramik Sangh, Sijua, to do away with his life if he takes out any procession or oppose him. It is the case of the detenu that the order of detention was made on one incident relating to exchange of fire between two rival groups. A criminal case had been registered in relation to the said incident pursuant to which the petitioner was already in custody. The order of detention though dated 2nd January, 1986 was served on or about 11th January, 1986. It is the case of the appellant/petitioner that the detenu was not served with all the documents referred to and/or relied on. The detenu was served with order of approval of the said order of detention by the Government of Bihar. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner/appellant that the order of preventive detention could only be justified against a person in detention if the detaining authority was satisfied that his release from detention was imminent and the order of detention was necessary for putting him back in jail. The service of order of detention on the petitioner while he was in jail was futile and useless since such an order had no application under section 3(2) of the Act. In the affidavit of the District Magistrate, the detaining authority, it has been stated that the activities of the petitioner s brother and the petitioner have disturbed the normal tempo of life in Katras and Jogta Police Stations in Dhanbad area. The series of offences against the detenu and the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the need for the detention were there, and there was rational nexus between the object of the order as contemplated by the Act and the materials on record. The principles applicable in these types of preventive detention cases have been discussed in the decisions of Suraj Pal Sahu v. State of Maharasthra Ors., W.P. (crl) No. 2 96/86 with SLP (crl) No. 1265/86 dt. 25.9.86 and Raj Kumar Singh v. The State of Bihar Ors. Crl A. 353/86 with W.P. (crl) 27/86 dt. 26.9.86. Judged on the basis of the said principles there is no ground for interference with the order of detention as passed. It, however, appears that after the order of detention was passed and before the actual service of the order of detention, the petitioner was taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu migh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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