H.N. Seth, J.
1. By this petition Parsu Ram Pandey challenges the validity of his detention under the provisions of the National Security Act authorised by the District Magistrate, Allahabad vide his order dated 28th of July, 1981.
2. The petitioner was served with the order dated 28th July, 1981 passed by the District Magistrate, Allahabad authorising his detention under Section 3 of the National Security Act and also the grounds for his detention on 28th July, 1981 while he was still in prison in connection with another criminal case, In due course the District Magistrate reported the matter to the State Government which approved the petitioner's detention. The representation made by the petitioner against the detention was also rejected by the State Government.
3. By this petition under Art. 226 of the Constitution the petitioner challenges the validity of his detention Lon a number of grounds including that the detention order has been made in mala fide exercise of power and also that the instances cited in the grounds of detention did not relate to public order. They merely related to law and order and some of them were stale as well. The petitioner also raised the plea that all the materials and the grounds on which the District Magistrate felt satisfied that it was necessary to detain him with a view to prevent him from acting in a manner prejudicial to the maintenance of public order were not supplied to him and he was not given an opportunity for making an effective representation in that regard.
4. The grounds of detention have been filed as Annexure 2 to the Writ Petition which indicate that the District Magistrate had opined that the petitioner was likely to act in a manner prejudicial to the maintenance of public order and that it was necessary to detain him with a view to prevent him from so acting on the basis of four incidents which are said to have taken place on 28th Sept., 1977, 1/2 April, 1978, 29th Feb., 1980 and 27th May, 1981.
5. The petitioner's suggestion that the detention order in question has been made in a mala fide exercise of power was based on the facts mentioned in paragraphs 7, 8, 9 and 10 of the petition wherein it had been mentioned that the police had arrested him in connection with Crime Case No. 61 of 1981 under Section 302 of the Penal Code relating to police station Manjhanpur, District Allahabad. The petitioner was not named in the said report and he had made an application for bail which was pending consideration before the Sessions Judge. As the Sessions Judge was likely to grant him bail in that case on 31st July, 1981 the police managed to procure the order for petitioner's detention under the provisions of the National Security Act from the District Magistrate. While refuting the suggestion of mala fide, the District Magistrate averred in para. 6 of the counter-affidavit filed by him as follows:-
That in reply to averments made in paragraphs 7, 8, 9 and 10 of the petition it is stated that the application for bail was moved by the petitioner in Crime No. 61 of 1981. When this application came up for disposal before the learned Sessions Judge he was inclined to grant bail to the petitioner but as the Station Officer...informed the court that the petitioner was to be put up for identification in that case the orders were deferred till 31st July, 1981. The report of the police indicates that the witnesses were afraid of the petitioner and were consequently reluctant to go for identification and there was apprehension that the petitioner would subsequently be released on bail on 31-7-1981. Under the circumstances it was deemed necessary to pass the order under National Security Act against the petitioner. It may, however, be added that the incident relating to Crime No. 61 of 1981 was not taken into consideration while passing the order of detention under the National Security Act. Allegations in paragraphs under reply are consequently irrelevant for the purposes of the present petition...
6. In view of the averments in paragraph 6 of the counter-affidavit it may be taken that the action of the District Magistrate in passing the impugned order was not mala fide but then these averments clearly make out that the District Magistrate had passed the order for petitioner's detention under the provisions of the National Security Act because he was of the opinion that the police report indicated that the witnesses were afraid of the petitioner and were consequently reluctant to go for identification and there was an apprehension that the petitioner would subsequently be released on bail on 31st July, 1981. It means that the District Magistrate, while coming to the conclusion that in his opinion the petitioner was likely to act in a manner prejudicial to the maintenance of public order, also took into consideration the fact that he was a person of whom the witnesses were afraid and more reluctant to give evidence against him and that he was likely to become free on 31st July, 1981. The circumstances that the petitioner was a person of a type against whom witnesses were afraid to give evidence thus went to influence the mind of the District Magistrate in coming to the conclusion that he was such a person who should be kept in confinement with a view to prevent him from acting in a manner prejudicial to the public order and that the detention order, as indicated in the counter-affidavit of the District Magistrate, was passed on this ground as well. We, however, find that this ground for the satisfaction of the District Magistrate was not communicated to the petitioner when grounds, copy of which has been filed as Annexure II to this petition, were communicated to him and the petitioner was not afforded any opportunity to make a representation in respect thereof. We are not impressed by the argument raised by the Government Advocate that the fact that the petitioner was a person against whom witnesses were afraid to give evidence, is not a ground for petitioner's detention and that it is merely a statement of collateral fact having no bearing on the satisfaction of the District Magistrate.
7. As one of the grounds on which satisfaction of the District Magistrate that the petitioner was likely to act in the manner prejudicial to the maintenance of public order was never communicated to the petitioner and he was not offered an opportunity to make a representation in respect thereof, the detention of the petitioner is rendered illegal and void.
8. In the result the petition succeeds and is allowed. The order of the District Magistrate dated 29th July, 1981 authorising the petitioner's detention under Section 3 of the National Security Act is quashed. The respondents are directed to release the petitioner forthwith unless his detention in the jail is otherwise authorised under some other valid order.