# Aashif /Detainue (In detention) v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 1201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Case number:** Habeas Corpus Writ Petition No. 562 of 2019
- **Bench:** Manoj Misra, Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aashif-detainue-in-detention-v-state-of-u-p-ors-44576
- **Pages:** 11

## Headnote

A. National Security Act , 1980 - Section
3(2) read with Section 3(3) - Detention on
basis of solitary incident and irrelevant
considerations-no
cogent
material
to
enable a logical inference that on being
released on bail, the petitioners would
indulge in activity prejudicial to the
maintenance of the
public order or
supplies and services essential to the
community. (Para 26,27,28,34 & 35)

Ordinarily a solitary act may not be sufficient
to sustain an order of preventive detention but
where that act is of such a nature that it is
reflective of, or has manifestation of, an
organized criminal activity, or is so grave that
it reflects the propensity of that person to
repeat such an act, then even a solitary act
could well be made basis for passing an order
of preventive detention.

Except for the criminal history of Aas Mohd.,
the brother of the petitioner (Aashif) and uncle
of the petitioner (Adil), which, in our view was
extraneous and not a relevant consideration,
particularly, in absence of further details as to
how the petitioners were linked with him in his
criminal activity, there is no material, cogent
enough, to enable a logical inference, on the
basis of a solitary incident, that on being
released on bail, the petitioners would indulge
in activity prejudicial to the maintenance of the
public order or supplies and services essential
to the community.

The incident was not such from which any
inference could be drawn about the propensity
of the petitioners to repeat, or indulge in, such
activities. No co-accused similarly situated has
been preventively detained.

Consequently,
both
the
habeas
corpus
petitions are allowed. The detention orders
quashed. Both the petitioners shall be set at
liberty forthwith unless wanted in any other
case.

Habeas Corpus petition allowed (E-3)

Case law discussed: -

## Text

2 All. Aashif Vs State of U.P. & Ors.
1201
hereby set aside with a remit of the matter to
the
learned
IVth
Additional
District
Judge/Special
Judge
(E.C.)
Act,
Bulandshahar to redetermine the belated
application for restoration, together with the
delay condonation application filed in its aid
in proper sequence, in accordance with law,
after hearing all parties concerned, afresh. In
doing so, the learned IVth Additional District
Judge/Special
Judge
(E.C.)
Act,
Bulandshahar will bear in mind what has
been said in this judgment. The learned IVth
Additional District Judge/Special Judge
(E.C.) Act, Bulandshahar will decide
Miscellaneous Case No. 1418 of 2017 within
a period of two months from the date of
receipt of a certified copy of this order.
----------

(2019)10ILR A 1201

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2019

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Habeas Corpus Writ Petition No. 562 of 2019
&
Habeas Corpus Writ Petition No. 564 of 2019

Aashif ...Petitioner/Detainue (In detention)
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Singh, Sri Chandrakesh Mishra

Counsel for the Respondents:
G.A., A.S.G.I., Annapurna Singh, Sri Kuldeep
Singh Chauhan, Sri R.P.S. Chauhan

A. National Security Act , 1980 - Section
3(2) read with Section 3(3) - Detention on
basis of solitary incident and irrelevant
considerations-no
cogent
material
to
enable a logical inference that on being
released on bail, the petitioners would
indulge in activity prejudicial to the
maintenance of the
public order or
supplies and services essential to the
community. (Para 26,27,28,34 & 35)

Ordinarily a solitary act may not be sufficient
to sustain an order of preventive detention but
where that act is of such a nature that it is
reflective of, or has manifestation of, an
organized criminal activity, or is so grave that
it reflects the propensity of that person to
repeat such an act, then even a solitary act
could well be made basis for passing an order
of preventive detention.

Except for the criminal history of Aas Mohd.,
the brother of the petitioner (Aashif) and uncle
of the petitioner (Adil), which, in our view was
extraneous and not a relevant consideration,
particularly, in absence of further details as to
how the petitioners were linked with him in his
criminal activity, there is no material, cogent
enough, to enable a logical inference, on the
basis of a solitary incident, that on being
released on bail, the petitioners would indulge
in activity prejudicial to the maintenance of the
public order or supplies and services essential
to the community.

The incident was not such from which any
inference could be drawn about the propensity
of the petitioners to repeat, or indulge in, such
activities. No co-accused similarly situated has
been preventively detained.

Consequently,
both
the
habeas
corpus
petitions are allowed. The detention orders
quashed. Both the petitioners shall be set at
liberty forthwith unless wanted in any other
case.

Habeas Corpus petition allowed (E-3)

Case law discussed: -

1. Attorney General for India Vs Amratlal
Prajivandas & ors. reported in 1994 (5) SCC 54
2. Surya Prakash Sharma Vs St. of U.P. & ors.
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
1994 (Supp.) 3 SCC 195
3. Yogendra Murari Vs St. of U.P. & ors.
(1988) 4 SCC 559
4. Khudiram Das Vs St. of W.B. (1975) 2 SCC 81
5. Vashisht Narain Karwaria Vs St. of U.P.
(1990) 2 SCC 629
6. Sama Aruna Vs St. of Telangana & anr.
(2018) 12 SCC 150
(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Mrs. Manju Rani Chauhan, J.)

1. These two habeas corpus petitions
have been filed by uncle (Aashif) and
nephew (Adil) questioning their detention
under the provisions of the National
Security Act (for short the Act, 1980)
under separate detention orders dated 16th
April, 2019, passed by the District
Magistrate, Ghaziabad in exercise of
powers under Section 3(2) read with
Section 3(3) of the Act, 1980.

2. As the impugned orders seeking
detention of the petitioners are based on
identical grounds and the arguments
advanced by learned counsel for the
parties are same in both the petitions, with
the consent of learned counsel for the
parties, these petitions are being decided
by a common judgment and order.

3. We have heard Sri Daya Shanker
Mishra, learned senior counsel, assisted
by Sri Sunil Singh and Sri Chandrakesh
Mishra, for both the petitioners; Sri
Deepak Mishra, learned A.G.A. for the
State as well as the other State-Officers
including the detaining authority in both
the petitions; Sri G.P. Singh holding brief
of Sri R.P.S. Chauhan for the Union of
India in Habeas Corpus Petition No. 262
of 2019; and Ms. Annapurna Singh for the
Union of India in Habeas Corpus Petition
No. 564 of 2019; and have perused the
record.

4. The impugned detention orders
dated 16th April, 2019 would reveal that
the District Magistrate, Ghaziabad (the
Detaining Authority) has passed the order
of detention by taking notice of an
incident dated 25.05.2019 relating to a
clash between two group of persons,
namely, the petitioners along with seven
named associates and others on the one
side and Ata Ilahi and his seven named
associates on the other side, at Rawali
Surana Main Road near Bilal Masjid,
which had breached public order. The
order of detention was passed to prevent
repeat of such activity so as to ensure
maintenance of public order and essential
services as well as civil supplies.

5. A perusal of the grounds of
detention would show that on 25.3.2019
the police received an information that at
Rawali Surana main road, near Bilal
Masjid, two group of persons were
indulging in exchange of fire and
brickbats to establish their authority and
hold over the area thereby causing utter
confusion and panic in that area. Upon
receipt of that information, the police
reached the spot. The perpetrators, upon
seeing the police, dispersed and escaped.
From the spot few cartridge empties were
recovered. Upon enquiry from persons
found there, information was gathered
regarding involvement of the petitioners
and others in the incident. FIR was lodged
naming
20
persons
including
the
petitioners, though five or six others were
left unnamed. FIR was registered as Case
Crime
No.
262
of
2019
at
P.S.
Muradnagar, District Ghaziabad, under
Sections 147, 148, 149, 307, 341, 336,
2 All. Aashif Vs State of U.P. & Ors.
1203
504, 188 I.P.C. and section 7 Criminal
Law Amendment Act, 1934. It was
alleged that by the said activity of the
petitioners, despite prohibitory orders
issued under section 144 CrPC in view of
impending Lok Sabha elections, there had
been a breach of public order including
disruption in movement of vehicles as
well as civil supplies. The grounds of
detention drew support not only from the
police reports but also newspaper reports
dated 26.03.2019 published in Hindustan;
Dainik Jagran; and Amar Ujala. The news
daily Hindustan reported that in the
middle of the road for half-an-hour there
was exchange of brickbats and fire
between two groups. The news daily
Dainik
Jagran
reported
that
at
Muradnagar there had been indiscriminate
firing. News daily Amar Ujala reported
that there was exchange of fire and
brickbats between two groups on account
of money dispute.

6. After narrating the incident as above,
in paragraph 8 of the grounds of detention, on
the one hand it was stated that the petitioner
and his family members are habitual criminals
whereas, on the other hand, it was stated that
no other case is reported against them.
Though it was added that no one dares to
lodge a complaint against them. The criminal
history of Aas Mohd., who is brother of
Aashif and Uncle of Adil, comprising 42
cases relating to abduction; murder; attempt to
murder; Goonda Act; Arms Act; Gangster
Act; and Extortion, was cited.

7. After completing the narrative, as
above, by showing awareness that the
petitioner(s) is/are in jail in connection
with case crime no. 262 of 2019 (supra)
and are striving for bail, it was observed
that as there is likelihood of they being
released on bail and indulge in activity
that would disturb public order, with a
view to prevent them from acting in a
manner that might be prejudicial to the
public order, it was necessary to detain
them under the Act, 1980.

8. The grounds of detention were
accompanied by reports of the Deputy
Inspector General of Police, Ghaziabad/
Senior
Superintendent
of
Police,
Ghaziabad; Superintendent of Police,
Rural, Ghaziabad; Circle Officer, Sadar,
Ghaziabad; and Prabhari Nirikshak, P.S.
Muradnagar,
Ghaziabad
as
also
photocopies of the Act, 1980 and Article
22 of the Constitution of India.

9. The report of the Superintendent
of Police, Rural, Ghaziabad disclosed that
the petitioners had filed Crl. Misc. Writ
Petition No. 8099 of 2019 for pre-arrest
protection which stood disposed off on
01.04.2019 by giving protection to the
petitioners for a specified period with
liberty to move for bail within that period.
It was also reported that pursuant to the
order dated 01.04.2019 the petitioners had
surrendered on 10.04.2019 in the Court of
Additional Chief Judicial Magistrate, VIth
and had applied for bail which was
rejected but, on the same day, bail
application was moved in the Court of
District & Sessions Judge, which was
pending. The report also indicated that the
Additional District & Sessions Judge-II,
Ghaziabad, after hearing both sides on the
bail prayer, had rejected the prayer for
interim bail but had fixed 16.04.2019 for
consideration of prayer for regular bail.
With that background, it was reported that
there was real possibility of the petitioners
being released on bail.

10. The order of detention dated
16.04.2019 was approved by the State
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, under Section 3(4) of the
Act, 1980, and, thereafter, upon receipt of
positive report from the Advisory Board,
by order dated 24.05.2019, the same was
confirmed and detention was directed,
provisionally, for a period of three
months. This detention period has been
extended up to six months, starting from
the date of initial detention, vide order
dated 12.07.2019.

11. Learned counsel for the
petitioner has urged that the detention
order passed against the petitioners is
discriminatory. It has been submitted that
the incident which forms the basis of the
detention order is in respect of exchange
of fire and brickbats between two group
of persons in which no person received
injury of any kind. Moreover, as per
allegations in the FIR, the moment the
police force arrived, the accused persons
dispersed without offering any resistance
to the police. The police, thereafter,
named as many as 20 persons, including
the petitioners, and left 5-6 other accused
unnamed. But, except the two petitioners,
detention order was not imposed against
anyone else which suggests that the
petitioners have been maliciously picked
up for depriving them of their liberty.

12. In paragraph 7 of both the writ
petitions, it has been stated that brother of
the petitioner (Aashif), namely, Sri Vahab
Chaudhari, who is uncle of the other
petitioner (Adil), is MLA from Bahujan
Samajwadi Party. It is stated that for Lok
Sabha Elections 2019, the voting at
Ghaziabad was in the first phase and,
therefore, prohibitory order, under Section
144 Cr.P.C, was in existence. The
petitioners along with family members
were campaigning in support of the
Mahagathbandhan (opposition) candidate,
that is against the ruling party. The
alleged incident was shown with a view to
implicate the petitioners so as to exert
pressure upon them.

13. It has been urged that if the
incident had the potentiality to disturb the
public order then all the persons named
ought to have been detained. But the
detention order is only against the
petitioners, which is clearly reflective of
misuse and abuse of executive power.

14. It has also been submitted that
even assuming that the incident narrated
had the potentiality to disturb the public
order, detention could be justified only if
there was any material to show or suggest
that upon being released on bail, the
petitioners would have repeated such
activity that would be prejudicial to the
maintenance of the public order. It has
been
submitted
that
the
petitioners
admittedly had no previous criminal
history and the extraneous material
relating to the criminal history of Aas
Mohd, the brother of Aashif (petitioner of
H.C. Petition No. 562 of 2019) and uncle
of Adil (petitioner of H.C. Petition No.
564 of 2019), is completely irrelevant so
as to infer that the petitioners would
indulge in repeat of the act if let out.

15. It was urged that the incident, as
reported in the first information report,
did not disclose any organized activity
from which it could be inferred that there
was likelihood of the petitioners repeating
such activity.

16. In addition to above, it has been
submitted that as the first information
report discloses that the moment the
police arrived on the spot the accused
persons escaped, without offering any
2 All. Aashif Vs State of U.P. & Ors.
1205
resistance to the police, the incident did
not have the potentiality to disturb the
public order and was a mere breach of law
and order. It has been urged that the
statement that doors were shut and
shutters of shops were downed is only to
add color to the case for detaining the
petitioner.

17. In addition to above, various
other submissions were made by learned
counsel for the petitioners, which are
being noticed, in brief, below:-

(i) That before extension of the
period of detention, which was initially
for a period of three months only, a report
was obtained from the District Magistrate
but copy of that report was not supplied to
the
petitioners
to
enable
them
to
effectively represent against the order
extending the period of detention.

(ii)
That
the
sponsoring
authority though furnished the criminal
history of Aas Mohd, the brother of
petitioner (Aashif) and uncle of petitioner
(Adil), but the criminal history was
incomplete as it did not provide complete
information regarding the current status of
those cases and, otherwise also, papers
relating to those cases were not provided,
which has affected the right of the
petitioners
to
make
an
effective
representation
against
the
order
of
extension of detention.

(iii)
That
the
Sponsoring
Authority in his report though disclosed
about filing of Crl. Misc. Writ Petition
No. 8099 of 2019 but copy of that writ
petition was not supplied to the detaining
authority and its copy was also not
provided to the petitioners even though
the same was a relevant document
inasmuch as it contained the defence of
the petitioners.

18. Per contra, the learned A.G.A.
submitted that the grounds of detention
reflect that the detention order was passed
upon consideration of the activity of the
petitioners with reference to the incident
dated 25.03.2019 which had clearly
disturbed public order inasmuch as parties
had exchanged brickbats as well as fire on
a busy street near Bilal Masjid. Hence, as
the detention order was passed after
showing awareness that the petitioners
were in jail and striving for bail and on
being released on bail they would indulge
in
similar
activity
which
had
the
potentiality to disturb the public order, the
satisfaction of the detaining authority,
having been arrived at on the basis of
relevant material, cannot be questioned
and, therefore, no case for interference is
made out. It has also been urged that the
satisfaction of the detaining authority
cannot be questioned on the ground that
no detention order has been passed
against co-accused. It was also urged that
the copy of the Crl. Misc. Writ Petition
No. 8099 of 2019 was not relevant as it
sought quashing of the FIR which prayer
was not accepted by the writ court.
Otherwise, copy of the order passed
therein was supplied by the sponsoring
authority to the detaining authority.

19. Learned A.G.A. also urged that
mere mentioning of criminal history of
relative of the detenu would not vitiate the
detention order on the ground that
extraneous material had been taken into
consideration because the detention order
can be sustained on a solitary ground in
view of Section 5-A of the Act, 1980.

20. It was also submitted that once
the Advisory Board opines that the
grounds of detention are sufficient and
germane to detain a person under the Act,
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
1980, the period for which the detenu is to
be detained is in the exclusive domain of
the State Government and, therefore, if,
for taking decision, to review the period
of detention, the State Government
considered report of detaining authority,
which is confidential in nature, such
report need not be supplied to the detenu.
It has been submitted that Article 22 (5)
of the Constitution of India provides for
supply of grounds of detention to afford
earliest opportunity to the detenu to make
a representation. The material relating to
the period for which a detenu is to be
detained would not fall within the
meaning of the phrase "the grounds of
detention", therefore such material need
not be supplied/shown to the detenu. It
has thus been argued that neither the
detention order suffers from any infirmity
nor the continued detention has been
rendered illegal, hence the petition is
liable to be dismissed.

21. We have considered the rival
submissions and have carefully perused
the record.

22. Although several submissions
have been noticed by us but since we
propose to allow both the petitions on
ground hereinafter stated, we do not
propose to deal with the merits of the
other submissions raised.

23. Before we deal with the ground
on which we propose to allow the
petition, it would be useful for us to
notice the legal position as to when an
order of preventive detention can lawfully
be passed on a solitary act of the detenu.
In this regard, it would be useful for us to
notice the decision of nine-judges Bench
of the Apex Court in Attorney General
For India vs Amratlal Prajivandas and
others reported in 1994 (5) SCC 54. In
paragraph 48 of the judgment, as reported,
the apex court has held as follows:-

"48. Now, it is beyond dispute
that an order of detention can be based
upon one single ground. Several decisions
of this Court have held that even one
prejudicial act can be treated as sufficient
for forming the requisite satisfaction for
detaining the person. In Debu Mahato v.
State of W.B. it was observed that while
ordinarily-speaking one act may not be
sufficient
to
form
the
requisite
satisfaction, there is no such invariable
rule and that in a given case one act may
suffice. That was a case of wagonbreaking and having regard to the nature
of the Act, it was held that one act is
sufficient.
The
same
principle
was
reiterated in Anil Dey v. State of W. B. It
was a case of theft of railway signal
material. Here too one act was held to be
sufficient. Similarly, in Israil SK v.
District Magistrate of West Dinajpur. and
Dharua Kanu v. State of W.B. single act
of theft of telegraph copper wires in huge
quantity and removal of railway fishplates respectively was held sufficient to
sustain the order of detention. In
Saraswati Seshagiri v. State of Kerala , a
case arising under COFEPOSA, a single
act, viz., attempt to export a huge amount
of Indian currency was held sufficient. In
short, the principle appears to be this:
Though ordinarily one act may not be
held sufficient to sustain an order of
detention, one act may sustain an order of
detention if the act is of such a nature as
to indicate that it is an organised act or a
manifestation of organised activity. The
gravity and nature of the act is also
relevant. The test is whether the act is
such that it gives rise to an inference that
the person would continue to indulge in
2 All. Aashif Vs State of U.P. & Ors.
1207
similar prejudicial activity. That is the
reason why single acts of wagon-
breaking, theft of signal material, theft of
telegraph copper wires in huge quantity
and removal of railway fish- plates were
held sufficient. Similarly, where the
person tried to export huge amount of
Indian currency to a foreign country in a
planned and premeditated manner, it was
held that such single act warrants an
inference that he will repeat his activity in
future and, therefore, his detention is
necessary to prevent him from indulging
in such prejudicial activity. If one looks at
the acts the COFEPOSA is designed to
prevent, they are all either acts of
smuggling
or
of
foreign
exchange
manipulation. These acts are indulged in
by persons, who act in concert with other
persons and quite often such activity has
international ramifications. These acts
are preceded by a good amount of
planning and organisation. They are not
like ordinary law and order crimes. If,
however, in any given case a single act is
found to be not sufficient to sustain the
order of detention that may well be
quashed but it cannot be stated as a
principle that one single act cannot
constitute the basis for detention. On the
contrary, it does. In other words, it is not
necessary that there should be multiplicity
of grounds for making or sustaining an
order of detention."

(Emphasis Supplied)

24. In Surya Prakash Sharma v.
State of U.P and others : 1994 (Supp.)
(3) SCC 195, the petitioner was already in
jail in connection with a murder case. The
petitioner had no criminal history though
there was a solitary case of broad day
light murder registered against him. The
argument raised before the apex court was
that on the basis of that solitary case
against the detenu, there could be no
apprehension in the mind of the detaining
authority that the detenu on being released
would indulge in any such activity that
would be prejudicial to the maintenance
of public order. The apex court found that
there was no cogent material placed
before the court or before the detaining
authority to enable an inference that the
detenu on being released on bail would
indulge in such offence that would be a
threat to public order. The apex court,
accordingly,
quashed
the
order
of
detention and, while doing so, in
paragraphs 5 and 6, as reported, observed
as follows:

"5.The question as to whether
and in what circumstances an order for
preventive detention can be passed
against a person who is already in
custody has had been engaging the
attention of this Court since it first came
up for consideration before a Constitution
Bench in Rameshwar Shaw v. District
Magistrate, Burdwan, [1964] 4 SCR 921.
To eschew prolixity we refrain from
detailing all those cases except that of
Dharmendra Suganchand Chelawat v.
Union of India, AIR (1990) SC 1196
wherein a three Judge Bench, after
considering all the earlier relevant
decisions including Rameshwar Shaw
(supra) answered the question in the
following words:

"The decisions referred to
above lead to the conclusion that an order
for detention can be validly passed
against a person in custody and for that
purpose it is necessary that the grounds of
detention must show that (i) the detaining
authority was aware of the fact that the
detenu is already in detention: and (ii)
there were compelling reasons justifying
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
such detention despite the fact that the
detenu is already in detention. The
expression "compelling reasons" in the
context of making an order for detention
of a person already in custody implied
that there must be cogent material before
the detaining authority on the basis of
which it may be satisfied that (a) the
detenu is likely to be released from
custody in the near future and (b) taking
into account the nature of the antecedent
activities of the detenu, it is likely that
after his release from custody he would
indulge in prejudicial activities and it is
necessary to detain him in order to
prevent him from engaging in such
activities."

6. When the above principles
are applied to the facts of the instant case,
there is no escape from the conclusion
that the impugned order cannot be
sustained.
Though
the
grounds
of
detention
indicate
the
detaining
authority's awareness of the fact that the
detenu was in judicial custody at the time
of making the order of detention, the
detaining authority has not brought on
record any cogent material nor furnished
any cogent ground in support of the
averment: made in grounds of detention
that if the aforesaid Surya Prakash
Sharma is released on bail 'he may again
indulge in serious offences causing threat
to public order", (emphasis supplied), To
put it differently, the satisfaction of the
detaining authority that the detenu might
indulge in serious offences causing threat
to public order, solely on the basis of a
solitary murder, cannot be said to be
proper and justified."

25. In Yogendra Murari v. State of
U.P. and others : (1988) 4 SCC 559, the
apex court had the occasion to deal with a
submission whether the detention order
could be considered discriminatory on the
ground of non-detention of co-accused in
the same incident. Rejecting the claim of
discrimination, raised on behalf of the
petitioner, in paragraph 9 of the judgment,
the apex court observed as follows:-

"9. There is no merit whatsoever
in
the
petitioners
grievance
of
discrimination on the ground that the
other co- accused persons have not been
detained. The role of the petitioner and
that of the others are not identical and the
reasonable apprehension as to their
future conduct must depend on the
relevant facts, and circumstances which
differ from individual to individual. It
would have been wrong on the part of the
detaining authority to take a uniform
decision in this regard only on the ground
that the persons concerned are all joined
together as accused in a criminal case."

26. From the decisions noticed
above, what is clear is that though
ordinarily a solitary act may not be
sufficient to sustain an order of preventive
detention but where that act is of such a
nature that it is reflective of, or has
manifestation of, an organized criminal
activity, or is so grave that it reflects the
propensity of that person to repeat such an
act, then even a solitary act could well be
made basis for passing an order of
preventive detention.

27. In the instant case, the incident
which forms the basis of the detention
order by no stretch of imagination can be
taken as an incident of an organized
crime. The incident appears to be a clash
between two group of persons. The clash
is not shown to be communal in nature.
Though brickbats and fire is said to have
been exchanged but no injury is shown to
2 All. Aashif Vs State of U.P. & Ors.
1209
have been sustained by any one. In fact, a
specific stand has been taken by the
petitioners that not a single person had
sustained injury and no private person has
made any complaint. Admittedly, the first
information report was lodged by the
police and a bare perusal of the first
information report would indicate that as
soon as the police arrived and challenged
the
persons,
who were
exchanging
brickbats, all of them escaped without
defying or challenging the authority of the
police or even attempting to throw a
single brick at the police. Under the
circumstances, drawing an inference only
against two participants, out of 25 odd
persons who participated in that incident,
that they were likely to repeat their act
and be a threat to maintenance of public
order, in our view, could not have been
drawn merely on the basis of gravity of
that incident/ act. Rather, it appears to us
that it has been drawn on the basis of
extraneous material that is the criminal
history of Aas Mohd., a relative of the
petitioners. Had the gravity of the incident
been the reason to impose the order of
detention not only the petitioners but
other participants also would have been
subjected to detention. Whereas, here,
admittedly, the detention order has been
passed only against the petitioners, which
clearly reflects that the detention order
has been passed on the basis of some
other material which appears to be the
criminal history of the relative of the
petitioners.

28. Interestingly, in the grounds of
detention as well as the report of the
sponsoring authority, it is mentioned that
there is not a single case registered
against the petitioner except the one in
respect of the incident dated 25.3.2018,
yet, in paragraph 8 of the grounds of
detention it is stated that the detenu and
the members of his family are habitual
criminals. In support of that statement
criminal history of 42 cases of Aas
Mohd., starting from the year 1995 and
spread across two decades and a half,
without any supporting documents in
respect thereto, has been cited.

29. In Khudiram Das v. State of
W.B., (1975) 2 SCC 81, a constitutional
bench of the apex court while examining
the scope of judicial review of the court
against a preventive detention order, in
paragraph 9 of its judgment, as reported,
had observed as follows:

"9. But that does not mean that
the subjective satisfaction of the detaining
authority is wholly immune from judicial
reviewability. The courts have by judicial
decisions carved out an area, limited
though it be, within which the validity of
the subjective satisfaction can yet be
subjected to judicial scrutiny. The basic
postulate on which the courts have
proceeded
is
that
the
subjective
satisfaction being a condition precedent
for the exercise of the power conferred on
the Executive, the Court can always
examine whether the requisite satisfaction
is arrived at by the authority : if it is not,
the condition precedent to the exercise of
the power would not be fulfilled and the
exercise of the power would be bad. There
are several grounds evolved by judicial
decisions for saying that no subjective
satisfaction is arrived at by the authority
as required under the statute. The
simplest case is whether the authority has
not applied its mind at all; in such a case
the authority could not possibly be
satisfied as regards the fact in respect of
which it is required to be satisfied.
......................... Then there may be a case
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
where the power is exercised dishonestly
or for an improper purpose : such a case
would also negative the existence of
satisfaction on the part of the authority.
The existence of "improper purpose", that
is, a purpose not contemplated by the
statute, has been recognised as an
independent ground of control in several
decided cases. The satisfaction, moreover,
must be a satisfaction of the authority
itself, and therefore, if, in exercising the
power, the authority has acted under the
dictation of another body...................the
exercise of the power would be bad and
so also would the exercise of the power be
vitiated where the authority has disabled
itself from applying its mind to the facts of
each individual case by self-created rules
of policy or in any other manner. The
satisfaction said to have been arrived at
by the authority would also be bad where
it is based on the application of a wrong
test or the misconstruction of a statute.
Where this happens, the satisfaction of the
authority would not be in respect of the
thing in regard to which it is required to
be satisfied. Then again the satisfaction
must be grounded "on materials which
are of rationally probative value". ..........
The grounds on which the satisfaction is
based must be such as a rational human
being can consider connected with the
fact in respect of which the satisfaction is
to be reached. They must be relevant to
the subject-matter of the inquiry and must
not be extraneous to the scope and
purpose of the statute. If the authority has
taken into account, it may even be with
the best of intention, as a relevant factor
something which it could not properly
take into account in deciding whether or
not to exercise the power or the manner
or extent to which it should be exercised,
the exercise of the power would be
bad......."
 (Emphasis Supplied)

30. The practice of submitting
reports to the detaining authority touching
the character of the detenu, without
supporting material, has been deprecated
by the apex court, and in Vashisht Narain
Karwaria v. State of U.P., (1990) 2 SCC
629, the detention was held bad for
consideration of such extraneous material.

31. In a recent decision of the apex
court in Sama Aruna v. State of
Telangana and another : (2018) 12 SCC
150, the apex court upon finding that the
detention order was based on stale
grounds, while setting aside the order of
detention, made certain observations, in
paragraph 17 of the judgment, as reported,
which are relevant and are accordingly
extracted below:-

"The detention order must be
based on a reasonable prognosis of the
future behavior of a person based on his
past conduct in light of the surrounding
circumstances."

32. Thereafter, in paragraph 26 of
the said judgment, the apex court further
observed as follows:-

"The influence of the stale
incidents in the detention order is too
pernicious to be ignored, and the order
must therefore go; both on account of
being vitiated due to malice in law and for
taking into account matters which ought
not to have been taken into account."

33. At this stage, we may revert to
the averments made in paragraph 7 of the
petition wherein it has been stated that the
other brother of the petitioner, namely,
Vahab Chaudhary was an MLA from
2 All. Pawan Kumar & Anr. Vs Smt. Sita Devi
1211
Bahujan Samaj Party and the petitioners
were supporting the political party other
than the ruling party. The District
Magistrate though in his counter-affidavit
has stated that the sub-Inspector has not
lodged the FIR under political pressure
but the fact that the brother of the
petitioner was MLA and that they were
supporting the other party has not been
denied.

34. When we take a conspectus of
the facts and circumstances of the case,
we are of the view that except for the
criminal history of Aas Mohd., the brother
of the petitioner (Aashif) and uncle of the
petitioner (Adil), there is no material,
cogent enough, to enable a logical
inference, on the basis of a solitary
incident, that on being released on bail,
the petitioners would indulge in activity
prejudicial to the maintenance of the
public order or supplies and services
essential to the community. The incident
dated 25.03.2019 is not reflective of
organized
criminal
activity
and,
admittedly, was not an incident where any
person died or got seriously injured. Thus,
in our view, the incident was not such
from which any inference could be drawn
about the propensity of the petitioners to
repeat, or indulge in, such activities. For
the reasons stated above as also keeping
in mind that no co-accused similarly
situated have been preventively detained,
we are of the considered view that the
order of detention has been passed by
being
influenced
with
the
criminal
antecedents of petitioners' relative, which,
in our view was extraneous and not a
relevant consideration, particularly, in
absence of further details as to how the
petitioners were linked with him in his
criminal activity. We are therefore of the
considered view that on the basis of the
solitary incident dated 25.3.2019 the
detention order against the petitioners is
not sustainable and as such the impugned
detention orders are liable to be quashed.

35. Consequently, both the habeas
corpus
petitions
are
allowed.
The
detention orders dated 16th April, 2019,
passed
by
the
District
Magistrate,
Ghaziabad in respect of Aashif (petitioner
in Habeas Corpus Petition No. 562 of
2019) and Adil (petitioner in Habeas
Corpus Petition No. 564 of 2019) are
hereby quashed. Both the petitioners shall
be set at liberty forthwith unless wanted
in any other case. There is no order as to
costs.
----------

(2019)10ILR A 1211

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2019
BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matter Under Art. 227 No. 6482 of 2019 (Civil)

Pawan Kumar & Anr.
 ...Petitioners (Defendants)
Versus
Smt. Sita Devi ...Respondent (Plaintiff)

Counsel for the Petitioners:
Sri Manu Khare

Counsel for the Respondent:
Sri Chetan Prakash

A. Transfer of Property Act, 1882Sections 106 & 113-Notice u/s. 106 issued
determining the tenancy (month to month)- on
expiry
of
the
period
of
notice
dated
09.09.2013 the relationship of landlady and
tenant came to an end-the landlady has