JUDGMENT
V.K. Jhanji, J.
1. The petitioner, namely, Zakir Hussain Wani, aged 26 years, has filed this habeas corpus petition through his father Ghulam Mohd. Wani seeking quashing of detention Order No.PSAIDM/JC/04/06 dated 9.8.2004 along with grounds of detention issued by the District Magistrate, Doda under Section 8 of the J&K Public Safety Act, 1978. The copy of order along with grounds of detention was served upon the petitioner in jail, as he was already in custody since June 2004 pursuant to registration of FIR No. 70/2004 under Sections 302/307/RPC and 3 PSS Act, Police Station Doda. It is further not in dispute that as a result of interrogation another FIR, bearingNo. 102/2004 dated 5.7.2004, came to be registered against the petitioner under Sections 212/121, 122/120B, 124/124A RPC at Police Station Doda.
2. The order of detention is being challenged by the petitioner inter alia on the grounds that he was not supplied with the copies of interrogation report, FIR Nos.70/2004, 102/2004 and other incriminating material collected by the police during investigation, on the basis of which the detention order has been passed that when the order of detention came to be passed the petitioner was already in custody in FIR No.70/2004 and in absence of any satisfaction of the detaining authority that there was likelihood of petitioner being released on bail, the order of detention is totally illegal. It is submitted that the order of detention and the grounds of detention do not indicate that the District Magistrate, Doda was even aware of the fact that the petitioner was in custody in the aforementioned two FIRs and there was any scope of his being enlarged on bail.
3. In response to the notice of petition, the District Magistrate, Doda has filed a short affidavit saying that the petitioner has been detained in pursuance of order dated 9.8.2004 as his activities were found prejudicial to the security of the State. Further, according to the District Magistrate, the detention order was duly ratified by the Government and the grounds of detention along with detention order and other relevant material were duly served upon the petitioner on 19.8.2004.
4. The District Magistrate has not explained in the affidavit that apart from the detention order and the grounds of detention, what was the other relevant material which was served upon the petitioner. From the affidavit filed by the Superintendent, Central Jail, Kot Balwal, Jammu, I find that only the grounds of detention were served upon the petitioner on 19.8.2004.
5. The submission of Mr. B.S. Salathia, learned Counsel appearing on behalf of respondents is that the detention of petitioner has been ordered in public interest and proper procedure in detaining the petitioner has been followed, therefore, the order detaining the petitioner deserves to be maintained.
6. After hearing learned Counsel for the parties and on going through the record, I am of the view that the detention order of petitioner is liable to be set aside solely on the ground that the District Magistrate, Doda was not made aware of the fact that the petitioner was already in custody and he had reason to believe that there was a possibility of his being released on bail. In Union of India v. Paul Manickam their Lordships of the Supreme Court has said that even in the case of a person in custody, a detention order can be validly passed subject to the following principles:
(i) if the authority passing the order is aware of the fact that he is actually in custody.
(ii) if he has a reason to believe on the basis of reliable material placed before him;
(a) that there is a real possibility of his release on bail, and
(b) that on being released, he would in all probability indulge in prejudicial activities; and
(3) if it is felt essential to detain him to prevent him from so doing.
7. Admittedly, neither the order of detention nor the grounds of detention at all indicate that the order was passed after recording satisfaction in that regard. The order and the grounds of detention do not indicate that the detaining authority was even aware of the petitioner being in custody or there being possibility of his release on bail. The case in hand being squarely covered by the decision rendered in Union of India v. Paul Manickam (supra), the order of detention dated 9.8.2004 deserves to be quashed and it is so ordered. The petitioner be set at liberty forthwith provided he is not wanted in any other case.