A.K. Patnaik, J.
1. This is a habeas corpus petition filed by the petitioner for quashing the order of detention dated 9.5. 2002 passed by the District Magistrate, Kendrapara under Sub- section (2) of Section 3 of the National Security Act, 1980 (for short, 'the Act 1980').
2. The brief facts relevant for the purpose of disposal of this writ petition are that the petitioner was arrested in connection with Kendrapara P.S. Case No. 30 of 2002 on 6.2.2002. The offences alleged against the petitioner were under Sections 399/402, I.P.C./25 (A)/27 Arms Act. The petitioner was thereafter forwarded to the jail custody. While the petitioner was in jail custody in Choudwar Jail, the impugned order of detention was passed on 9.5.2002 by the District Magistrate, Kendrapara. The grounds of detention were served on the petitioner on 9.5.2002. The order of detention was approved by the State Government on 15.5.2002. The petitioner submitted representations against the said order on 16.6.2002. The representations were rejected by the State Government on 21.6.2002 and by the Central Government on 2.7.2002. After the advisory board gave its opinion, the state government confirmed the order of detention on 27.6.2002. Aggrieved, the petitioner has filed this writ petition under Article 226 of the Constitution.
3. Mr. G.N. Mohapatra, learned counsel for the petitioner submitted that at the time the impugned order of detention was passed by the District Magistrate, Kendrapara, the petitioner was already in jail custody having been arrested in Kendrapara P.S. Case No. 30 of 2002 under Sections 399/402, I.P.C./25(A)/27 of the Arms Act: He further submitted that no bail application has been moved by the petitioner and yet, the impugned order of detention was passed by the District Magistrate, Kendrapara detaining the petitioner under the Act, 1980. Mr Mohapatra argued that in the absence of any material before the District Magistrate, Kendrapara to record a satisfaction that the petitioner is likely to be release on bail, the order of detention cannot be sustained. In support of the aforesaid contention, Mr. Mohapatra cited the decisions of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad A.I.R. 1986 S.C. 2090, Kumarunnissa v. Union of India, (1991) 1 SCC 128, Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Ors. (1994) Supp.(l) S.C.C. 597 and Amritlal and Ors. v. Union Government through Secretary, Ministry of Finance and Ors., A.I.R. 2000 S.C. 3675. Mr Mohapatra vehemently argued that in the aforesaid decisions, the Supreme Court has clearly held that a bald statement in the grounds of detention that the detenu is likely to be released on bail is merely an ipsi dixit of the detaining authority and unless such statement is supported by cogent materials, the order of detention cannot be sustained. In this case, Mr Mohapatra pointed out that in the grounds of detention there is only a bald statement that the petitioner is likely to be released on bail. But there is no material whatsoever in support of the bald statement, such as, a bail application having been moved by the petitioner in connection with Kendrapara P.S. Case No. 30 of 2002.
4. Mr M. K. Mohanty, learned Addl.Govt Advocate, on the other hand, submitted that the grounds of detention would show that the petitioner has been indulging in various anti- social activities right from the years 1992 to 2002 and each time the petitioner was released on bail or was acquitted and after he came back from the custody, resorted to the same anti- social activities. According to Mr Mohanty, therefore, there were materials in the grounds of detention for the satisfacion that the petitioner is lilkely to be released on bail and after he is released on bail, he will rerort to various activities detrimental to the maintenance of the public order. Mr Mohanty further submitted that the petitioner himself has averred in paragraph- 4 of the writ petition that the charge-sheet was filed in connection with Kendrapara P.S. Case No. 30 of 2002 and the petitioner was committed to the Court of Session and he has been acquitted of the charges while in custody. Mr Mohanty argued that now that the petitioner has been acquitted of the said charges, in case the impugned order of detention is quashed, he will be set at liberty antl he will again resort to anti-social activities detrimental to the maintenance of public order as he has been doing on earlier occasions. According to Mr Mohanty, therefore, this is not a fit case in which the High Court should interfere with the impugned order of detention. We have also heard Mr. A. Deo. learned Addl. Standing Counsel (Central) who has stated that the counter affidavit has been filed by the Central Government indicating therein that the representation of the petitioner has been disposed of expeditiously.
5. The impugned order of detention can be sustained only on the basis of the materials that are available at the time the said impugned order of detention was passed. At the time when the impugned order of detention was passed, the petitioner had not been acquitted of the charges in connection with, Kendrapara P.S. Case No. 30 of 2002. Rather, he was in custody in connection with the said Kendrapara P.S. Case No. 30 of 2002. This would be evident from the relevant extracts from the grounds of detention served on the petitioner quoted herein below :
' On 6.2.2002 at 8.45 P.M Sri R.K. Dora IIC Kendrapara P.S. after getting reliable information from his source regarding congregation of veteran antisocials including yourself to commit dacoity in Kendrapara Town area and to stage gangwar against your rival group, he and other police party raided the abandoned house at Dillarpur and found you along with Sk. Ayeda, Mir Babu, Sk. Jhuna, Jahid Khan, Sk. Moza and others assembled there with bomb, bhujali, pistol and other lethal weapons. Seeing police party, you brandishing your pistol threatened to kill as a result there was hue and cry. Fram the spot you and three others were arrested and country made pistol, bhujali and other lethal weapons were seized. Other accused persons took to their heals in the cover of darkness. On the report of IIC Kendrapara P.S. Case No. 30. dt. 6.2.2002, Under Section 399/402 IPC/25(A)/27 Arms Act was registered and investigated into. On completion of investigation, charge sheet was placed against you and 8 others. The case is subjudice:
The above incidents clearly indicate the type of your depredations. In spite of being arrested and forwarded in custody a number of times earlier, your antisocial activities continue unabated. Each time you are released on bail and thereafter continued committing further offences and creating havoc in the area. You leave no stone unturned to scuttle the criminal justice system by terrorising and intimidating the witnesses and informants of the pases instituted against you.
The normal law of the land is now felt inadequate to curb your antisocial activities which are highly detrimental to the maintenance of public order and there is need to take recourse to Special Law. Hence, you are to be prevented from acting in the manner prejudicial to the maintenance of public order under N.S.A, before you released on bail. You are now in jail custody and likely to be released on bail.'
A reading of the aforesaid extracts from the grounds of detention would show that the petitioner was arrested on 6.2.2002 in connection with Kendrapara P.S. Case No. 30 of 2002 under Sections 399/402, I.P.C./25(A)/27 Arms Act. The aforesaid extracts would show that from the fact that the petitioner was arrested and forwarded to custody number of times earlier and the petitioner was released on bail after which he committed further offences, the District Magistrate, Kendrapara came to the conclusion that if the petitioner is released on bail, he will resort to activities prejudicial to the maintenance of the public order. The fact that the petitioner when released on bail on earlier occasions had resorted to various activities prejudicial to the maintenance of public order may support the conclusion of the District Magistrate. Kendrapara that if he (petitioner) is again released on bail, he will resort to anti-social activities. But these facts are not cogent materials for the satisfaction of the District Magistrate. Kendrapara that the petitioner is likely to be released on bail in connection with Kendrapara P.S. Case No. 30 of 2002.
6. The decisions of the Supreme Court in Binod Singh v. District Magistrate, Dhanbad, Kumarunnissa v. Union of India, Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Ors. and Armitlal and Ors. v. Union Government through Secretary, Ministry of Finance and Ors. (supra) cited by Mr Mohapatra have been considered at length by us in a recent judgment delivered on 22.1.2003 in the case of Sunil Rajgharia v. State of Orissa and Ors. (W.P. (CRL) No. 30 of 2002)* and in the said judgment, this Court has held that the satisfaction of the detaining authority that the detenu is likely to be released on bail has to be based on cogent material. In the said case of Sunil Rajgarhia v. State of Orissa and Ors. (supra) the Court also found that there was no material whatsoever before the detaining authority for its satisfaction that the petitioner in that case was likely to be released on bail and in the absence of such cogent material, quashed the order of detention.
7. Coming now to the present case, although the District Magistrate, Kendrapara has stated in the grounds of detention extracted above that the petitioner is likely to be released on bail, this satisfaction appears to have been recorded only on the basis of the report of the Superintendent of Police, Kendrapara dated 29.4.2002 that the petitioner is at present in judicial custody and is likely to be released on bail. Neither in the grounds of detention nor in the said report of the Superintendent of Police, Kendrapara is there any mention about a bail application having been filed by the petitioner in connection with Kendrapara P.S. Case No. 30 of 2002 or even an attempt being made by the petitioner to file a bail application before the appropriate Court. In our considered opinion, therefore, there was no cogent material before the detaining authority to come to the conclusion that the petitioner is likely to be released on bail and the order of detention is liable to be quashed on this ground only it is not necessary to deal with the other grounds taken in the writ petition. If the petitioner has been acquitted of the charges in connection with Kendrapara P.S. Case No. 30 of 2002 by the Sessions Judge or he has been released in the meanwhile, it is for the detaining Authority to apply his mind afresh as to whether the detention of the petitioner is required under the Act, 1980 when he is no longer in custody.
8. In the result, the impugned order of detention dated 9.5.2002 in Annexure-1 to the writ petition is quashed and the petitioner will be released and set at liberty forwith unless he is wanted in connection with some other case.
P.K. Misra, J.
9. I agree.