# Abhayraj Gupta v. Superintendent, Central Jail, Bareilly & Ors

- **Citation:** (2022) 1 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-23
- **Case number:** E-Habeas Corpus Writ Petition No. 362 of 2021
- **Bench:** Mahesh Chandra Tripathi, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhayraj-gupta-v-superintendent-central-jail-bareilly-ors-47650
- **Pages:** 31

## Headnote

Constitution of India - Article 226 - Habeas
corpus writ petition - F.I.R. lodged u/s 498A,
364 I.P.C., 3/4 D.P. Act - but neither
proceedings of case expedited nor corpus
recovered - habeas corpus writ petition filed for
direction to produce corpus and to set her at
liberty - Held - In view of S. 190 & S. 156
Cr.P.C. petitioner may approach Magistrate
regarding the latest progress of the case &
apprised Magistrate that the matter may be
expedited - habeas corpus writ petition not
maintainable (Para 9, 10)

Disposed Off. (E-5)

## Text

_Characters 0–39,921 of 107,264. This is a partial read: ask again with offset=39921 for what follows._

168 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) No proceeding of a police
officer in any such case shall at any stage
be called in question on the ground that the
case was one which such officer was not
empowered
under
this
section
to
investigate.

(3) Any Magistrate empowered
under section 190 may order such an
investigation as above- mentioned.

8.

Considering
the
arguments
advanced by the learned counsel for the
parties and after perusal of record, this
Court finds that there is a force in the
submission made by Sri Vinod Kant,
learned Additional Advocate General that
the petitioner has a remedy under Section
190 read with Section 156 of Cr.P.C. to
approach before the concerned Magistrate
for redressal of her grievance.

9. From the persual of the record, it is
beyond doubt to observe that the learned
Magistrate is already monitoring the matter
and has passed the order dated 22.10.2020
directing the Investigating Officer to
investigate the matter expeditiously and
submit his report forthwith, if the petitioner
is not satisfied with the progress of the
investigation, she may apprise the learned
Magistrate with this fact and she may move
appropriate application in the case for
further direction to be issued in accordance
with law by the learned Magistrate.

10. Thus, in view of the above, the
remedy, if any, for the petitioner is to
approach the concerned Magistrate in
respect of her grievance, the present habeas
corpus writ petition before this Court is not
maintainable.

11. With the above observation and
direction, the present habeas corpus writ
petition is being finally disposed of.
----------
(2022)01ILR A168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2021

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

E-Habeas Corpus Writ Petition No. 362 of 2021

Abhayraj Gupta ...Petitioner
Versus
Superintendent, Central Jail, Bareilly &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Daya Shankar Mishra, Senior Advocate,
Sri Chandrakesh Mishra, Sri Abhishek
Mishra

Counsel for the Respondents:
Sri Syed Ali Murtaza, A.G.A., A.S.G.I., Ms.
Sadhana Singh, Advocate

Constitution of India - Article 226 - Habeas
corpus writ petition - F.I.R. lodged u/s 498A,
364 I.P.C., 3/4 D.P. Act - but neither
proceedings of case expedited nor corpus
recovered - habeas corpus writ petition filed for
direction to produce corpus and to set her at
liberty - Held - In view of S. 190 & S. 156
Cr.P.C. petitioner may approach Magistrate
regarding the latest progress of the case &
apprised Magistrate that the matter may be
expedited - habeas corpus writ petition not
maintainable (Para 9, 10)

Disposed Off. (E-5)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Daya Shankar Mishra,
learned Senior Advocate, assisted by Shri
Chandrakesh Mishra and Shri Abhishek
Mishra
Advocates,
learned
Counsel
appearing for the petitioner, Shri Syed Ali
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
169
Murtaza. learned Additional Government
Advocate for the State-respondents (1)
Superintendent, Central Jail, Bareli, (2) the
District Magistrate, Shahjahanpur and (3)
the State of Uttar Pradesh and Ms. Sadhna
Singh, learned Standing Counsel for the
Union of India.

2. The instant Writ Petition under
Article 226 of the Constitution of India has
been filed by the petitioner Abhay Raj
Gupta, who is in custody in Central Jail,
Bareilly, through his mother, seeking
issuance of a Writ of Habeas Corpus
challenging his detention under an order
dated 23-01-2021 passed under Section 3
(2) of the National Security Act, 19801
and the entire consequential proceedings
and continued detention as being illegal
and unconstitutional and a prayer has been
made to issue a Writ of Mandamus
commanding the respondents to release the
petitioner from custody.

3. The detention order dated 23-012021 states that the District Magistrate has
been satisfied that it has become necessary
to pass a detention order under Section 3
(2) of the NSA, 1980 to prevent the
petitioner from acting in any manner which
would be prejudicial to the maintenance of
public order. The grounds of detention are
contained in a separate communication of
the same date issued by the District
Magistrate, which narrates the incident
which led to the passing of the detention
order. As per the report given by the
informant, the deceased Rakesh Yadav
accompanied by Kuldeep Jaiswal alias
Sonu, Driver Shadab and the informant,
reached the P.W.D. Office at about 01:15
p.m. on 02-12-2019. Three unidentified
persons present there started firing at
Rakesh Yadav with the intention to kill
him. As soon as Kuldeep Jaiswal alias
Sonu took aim with the licensee pistol of
Rakesh, they fired at him also. People
starting running away. Rakesh Yadav was
killed and Kuldeep Jaiswal was admitted
for treatment. On the information of the
brother of the deceased, Case Crime
Number 837/19 under Sections 302, 307
IPC was registered on 03-12-2019 at 00:53
in
Police
Station
Sadar
Bazar,
Shahjahanpur.

4. The Second F.I.R. under Case
Crime Number 873/19 under Section 307
IPC was registered on 22-12-2019 in Police
Station Sadar Bazar, Shahjahanpur on the
allegation
that
when
the
police
apprehended the petitioner to arrest him for
the aforesaid incident which occurred on
02-12-2019, he fired at the Police personnel
with the intention to kill. The petitioner
was taken in custody and was lodged in Jail
on 23-12-2019.

5. On the ground of the same incident,
a third F.I.R. was lodged under Section 2/3
of the Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986 as
Case Crime No. 221/20 in Police Station
Sadar Bazar, Shahjahanpur, in which the
petitioner is in custody since 01-05-2020.

6. The detention order states that
because of the incident which occurred in
P.W.D. Office on 02-12-2019 at about
01:15, the students present in the Gandhi
Faiz-e-Aam College adjacent to the P.W.D.
College got panicked. Upon coming to
know about the incident the guardians of
the students also got panicked and in talks
with
the
college
management
they
expressed their concern regarding the
170 INDIAN LAW REPORTS ALLAHABAD SERIES
safety of their children. The Principal, G. F.
College has given an application in this
regard to the Police, which establishes that
because of the offence of gruesome murder
done by the petitioner's accomplices under
a conspiracy hatched by him, people got
afraid and panicked and the public order
was disturbed.

7. It has been averred in the writ
petition that there has been an old
animosity between the deceased Rakesh
Yadav and his family members and the
family members of the petitioner. The
petitioner's grand father Radheyshyam had
lodged a first information report in relation
to murder of the petitioner's uncle Ashutosh
Gupta against Giran Yadav and Kamlesh
Yadav uncles of the deceased Rakesh
Yadav and in that case Giran Yadav, father
of the deceased Rakesh Yadav had to
remain in jail for a period of 18 months.

8. The detention order has been
challenged by means of the instant Writ
Petition mainly on five grounds. The first
ground of challenge is that the alleged
incident was an offence against an
individual which affected "law and order",
but it does not affect "public order" so as to
attract the provisions of Section 3(2) of the
NSA, 1980. The second ground of
challenge is that the incident which took
place on 02-12-2019 is a stale incident
which has no proximity with the detention
order and the invocation of the provisions
of the NSA, 1980 after a long delay on 2301-2021
was
neither
warranted
nor
justified. The third ground of challenge is
that copies of the entire relevant material
referred to and relied upon in the detention
order have not been provided to the
petitioner. The documents provided with
the detention order have been mentioned in
an index, a copy whereof has been filed as
Annexure No. 5 to the writ petition and at
serial No. 46 it mentions the bail
application filed in case crime No. 221 of
2020 under Section 2/3 of the Gangsters
Act contained one page only. The petitioner
has filed a copy of the index of the
aforesaid bail application as Annexure No.
4 to the writ petition which indicates that
its index was of one page only and the
entire bail application consisted of as many
as of 19 pages. The copies of the report of
the District Magistrate and that of the
advisory Board were not provided to the
petitioner as also comments on the said
applications have not been provided to the
petitioner in violation of the principles of
natural justice, which renders the detention
order unsustainable in law. Lastly the
detention order has been assailed on the
ground that on 23-01-2021, i.e. on the date
of passing of the detention order, the
petitioner was already in custody and he
had not even filed an application for Bail in
Case Crime No. 221 of 2020 under the U.
P. Gangsters and Anti-Social Activities
(Prevention) Act and there was no
possibility of the petitioner acting in any
manner prejudicial to the maintenance of
public order and in these circumstances, the
provisions of Section 3 (2) of the NSA,
1980 are not attracted and the detention
order is unsustainable in law.

9. In support of his submissions, Shri
Daya Shankar Mishra, learned Senior
Advocate has placed reliance on the
judgments in the cases of Ichhu Devi
Choraria Vs. Union of India and others,
1980 AIR 1983, Mohinuddin @ Moin
Master Vs. District Magistrate, Beed and
others, 1987 AIR 1977, State of U.P. Vs.
Kamal Kishore Saini, 1988 AIR 208, M.
Ahamedkutty Vs. Union of India, 1990
SCR (1) 209, Inamul Haq Engineer Vs.
Superintendent,
Division/District
Jail,
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
171
Azamgarh, 2001 Cri.L.J. 4398, Lallan
Goswami
Ajayn
Vs.
Superintendent,
Central, 2002 (45) ACC 1089, Brijbasi
Pathak Vs. State of Uttar Pradesh and
others, 1985 (suppl.) ACC 273, Mrs. T.
Devaki Vs. Government of Tamil Nadu and
others, 1990 AIR 1086, Smt. Angoori Devi
for Ram Ratan Vs. Union of India and
others, 1989 AIR 371, Ram Manohar Lohia
Vs. State of Bihar and another, AIR 1966
SC 740, Sant Singh Vs. District Magistrate
and others, 2000 CriLJ 2230, Ram Kripal
Singh Vs. State of U.P. And others, 1986
CriLJ 1437, Banka Sneha Sheela Vs. The
State of Telangana and others, (2021) 9
SCC 415, Mahesh Kumar Chauhan alias
Banti Vs. Union of India and others, 1990 0
Supreme (SC) 298, Prabhu Dayal Deorah
etc. Vs. District Magistrate, Kamrup and
others, 1973 0 Supreme (SC) 320, Imran @
Tendu Vs. Adhikshak, Janpad Karagar,
Muzaffar Nagar and others, 2018 0
Supreme (All) 346, Ayya alias Ayub Vs.
State of U.P. and another, 1989 AIR 364,
SK. Serajul Vs. State of West Bengal, AIR
1975 Supreme Court 1517, Sk. Nizamuddin
Vs. State of West Bengal, 1975 CRI. L.J.
12, Jagan Nath Biswas Vs. The State of
W.B, AIR 1975 Supreme Court 1516, Md.
Sahabuddin Vs. The District Magistrate 24
Parganas and others, 1975 CRI. L.J. 1499,
Vijay Narain Singh Vs. State of Bihar and
others, 1984 1 Crimes (SC) 914, Shesh
Dhar Mishra Vs. Superintendent, Naini
Central Jail, 1985 All L.J. 1222.

10.

The
District
Magistrate,
Shahjahanpur has filed a counter affidavit
on behalf of the State-respondents stating
that during the course of investigation of
the heinous crime committed in broad day
light in P.W.D. Office, in which one
Rakesh Yadav was shot dead and another
person Kuldeep Jaiswal alias Sonu received
grievous injuries, the complicity of the
petitioner came into knowledge. The act of
the petitioner created terror and panic in the
locality and peaceful atmosphere was
disturbed and after considering this aspect
of the matter, the provisions of NSA, 1980
have been imposed upon the petitioner,
after
considering
the
report
of
the
Sponsoring Authority, Police Authority and
the entire facts available on record and after
serving relevant documents upon the
petitioner through jail authorities.

11. A counter affidavit has been filed
on behalf of the Union of India also stating
that the report as envisaged under Section 3
(5) of the NSA, 1980 forwarded by the
Government of Uttar Pradesh by a letter
dated 01-02-2021 was received in the
Ministry of Home Affairs on 08-02-2021.
The same was examined in detail alongwith
the documents attached therewith by the
Deputy Secretary (Security) who noted that
there was no reason to interfere with the
said detention order. A copy of the
representation dated 13-02-2021 of the
detenue alongwith para-wise comments of
the detaining authority, forwarded by the
District Magistrate, Shahjahanpur by the
letter dated 15-02-2021, was received in the
Ministry of Home Affairs on 18-02-2021
and
on
19-02-2021,
the
same
was
processed for consideration of Union Home
Secretary. Being aware of the effects and
sensitivity of detention under the NSA,
1980,
the
representation
was
duly
considered at various levels to ascertain the
merit.
Thereafter,
the
Union
Home
Secretary having carefully gone through the
material on record, including the order of
detention, the grounds for detention, the
representation of the detenue and the
comments of the detaining authority
thereon concluded that the detenue had
172 INDIAN LAW REPORTS ALLAHABAD SERIES
failed to put forth any material cause or
ground in his representation to justify the
revocation of the order by exercise of the
power of the Central Government under
Section 14 of the NSA, 1980. He, therefore,
rejected the representation and the detenue
was informed vide wireless message No.
II/15028/25/2021-NSA dated 24.2.2021.

12. Opposing the writ petition, Shri
Syed Ali Murtaza, learned A.G.A. has
submitted that there is no thumb rule that
the preventive detention can be ordered
only if a bail application is pending. Its
genesis lies under Article 22 of the
Constitution of India. However, normally
preventive detention is ordered only when a
bail application is pending. As the
petitioner was already in custody in a case
under Section 302 I.P.C., the NSA, 1980
was not invoked. The cause of action for
invoking the NSA, 1980, was that the
petitioner was granted bail in Case Crime
No. 837 of 2019 and Case Crime No. 873
of 2019 and he had filed an application for
bail in the case under the Gangster Act. He
has submitted that whether the case
involves a threat to maintenance of "public
order" or "law and order" depends upon the
facts of each case and the order of
preventive order has to be passed by the
detaining authority on the basis of his
subjective satisfaction in this regard. Mr.
Murtaza has submitted that the incident
took place at a public place due to which
the PWD office and the nearby shops were
closed and the students of college situated
nearby got panicked and, therefore, it
involves breach of public order and not
merely a law and order. He has submitted
that the detention order under NSA, 1980
can be passed in any of the following
conditions: (a) if the accused is not in
custody or when he is in custody (b) the
detaining authority is satisfied that he may
be enlarged on bail (c) where no bail
application is pending.

13. In response to the petitioner's
contention that the entire relevant material
was not provided to him, Sri Murtaza has
submitted that although the detention order
refers to the two criminal cases bearing
Case Crime Nos. 837 of 2019 and 873 of
2019, but it is not a ground of the detention
order and it has not been relied upon by the
detaining
authority.
Hence,
the
first
information report of these two cases was
not a relevant material required to be
furnished by the detaining authority. The
bail applications filed by the petitioners
regarding these two cases were his own
documents and, therefore, the petitioner did
not suffer any prejudice due to non-supply
of the bail applications and the connected
documents. The material is to be provided
because it would affect the satisfaction of
the detaining authority regarding the
grounds of detention and secondly to
enable the detenue to make an effective
representation. The criminal cases pending
against the petitioner were not going to
affect or change the mind of the detaining
authority.

14. Sri Syed Ali Murtaza has further
submitted that even if the Court comes to
the conclusion that the relevant material
was not provided to the petitioner, it would
not affect the validity of the detention order
because the detention order has been
passed on many grounds and not on one.
Section 5 A of the NSA, 1980 provides that
the detention order shall not be deemed to
be invalid or inoperative merely because
one or some of the grounds for passing the
detention order is vague, non-existent, not
relevant, not connected or not proximately
connected with such person or invalid for
any other reason, whatsoever.
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
173

15. Sri Syed Ali Murtaza has placed
reliance on judgments rendered in Baby
Devassy Chully alias Bobby Vs. Union of
India and others, (2013) 4 SCC 531, Arun
Ghosh Vs. West Bengal, 1970 SC 1228,
Alijan Miya Vs. District Magistrate, 1983
SC 1130 and K.K. Saravana Vs. State of
Tamil Nadu, (2008) 9 SCC 89 and
Kamarunnissa Vs. Union of India and
another, AIR 1991 SC 1640.

16. Ms. Sadhna Singh, learned
counsel appearing for the Union of India
has advanced her submissions opposing the
Writ Petition and she has tried to justify the
detention order. She has placed reliance on
Devesh
Chourasia
Vs.
The
District
Magistrate, Jabalpur and Ors., WP No.
10177/2021 in The High Court of Madhya
Pradesh (Indore Bench) Decided On:
24.08.2021 and Pankaj Vs. State of U.P.
and others, 2016 1 Crimes (HC) 8.

17. In the case of Devesh Chourasia
vs. The District Magistrate, Jabalpur
and Ors., WP No. 10177/2021 Decided
On 24.08.2021 placed by Ms. Sadhna
Singh,
an FIR was
lodged
against
employee of Pharmaceutical Department
of a hospital under sections 274, 275, 308,
420, 120-B of IPC read with Sec. 53 of
Disaster Management Act, 2005 and Sec.
3 of the Epidemic Act, 1897 on the
allegations that the accused procured and
used fake Remdesivir injections to gain
illegal profits during the pandemic era
thereby endangering human life. Keeping
in view the peculiar facts of the case and
after taking into consideration numerous
precedents on this point, the Madhya
Pradesh High Court summarized the
principles
applicable
to
preventive
detention as follows: -

"36. In view of aforesaid
judgments of Supreme Court, we can cull
out the principles as under:-

[1] It is not necessary that
authority passing the detention order must
always be in possession of complete
information at the time of passing the
order.

[2] The information on the
strength of which detention order is passed
may fall far short of legal proof of any
specific offence. If order indicates strong
probability of impending commission of a
prejudicial act, it is sufficient for passing a
detention order.

[3] The Court is not obliged to
enquire into the correctness/truth of facts
which are mentioned as grounds of
detention.

[4] Whether grounds of detention
mentioned in the order are good or bad is
within the domain of competent authority.

[5] The satisfaction of competent
authority in passing the detention order
can be assailed on limited grounds
including the ground of mala-fide and no
evidence at all.

[6] The jurisdiction under the
NSA Act is different from that of judicial
trial in courts for offence and of judicial
orders for prevention of offence. Even
unsuccessful judicial trial would not
operate as a bar to a detention order or
make it mala-fide.

[7]
An
improperly
recorded
confession u/S. 161 of Cr.P.C. cannot be
used as substantive evidence against the
accused in criminal case but it cannot be
completely brushed aside on that ground
for the purpose of preventive detention.

[8] The Court cannot examine the
materials before it and give finding that
detaining authority should not have been
satisfied on the material before it. The
174 INDIAN LAW REPORTS ALLAHABAD SERIES
sufficiency of ground of detention can not
be subject matter of judicial review.

[9] The justification for detention
is suspicion or reasonable probability and
not criminal conviction which can only be
warranted by legal evidence. Thus, it is
called as 'suspicious jurisdiction'.

[10] In a habeas corpus petition,
Court needs to examine whether detention
is prima-facie legal or not and is not
required to examine whether subjective
satisfaction on a question of fact is rightly
reached or not.

[11]
The
statements/evidence
gathered during investigation falls within
the ambit of "some evidence" which can
form basis for detaining a person.

[12] The detention order is an
administrative order."

18. However, we are not inclined to
follow the aforesaid decision cited by Mr.
Sadhna Singh as in this decision, Madhya
High Court has not taken into consideration
the law laid down by the Hon'ble Supreme
Court in the case of Vijay Narain Singh v.
State of Bihar2, which is as follows:

"the view that "those who are
responsible for the national security or for
the maintenance of public order must be
the sole judges of what the national
security or public order requires" It is too
perilous a proposition. Our Constitution
does not give a carte blanche to any organ
of the State to be the sole arbiter in such
matters. Preventive detention is considered
so treacherous and such an anathema to
civilised thought and democratic polity that
safeguards against undue exercise of the
power to detain without trial, have been
built into the Constitution itself and
incorporated as Fundamental Rights. There
are two sentinels, one at either end. The
Legislature is required to make the law
circumscribing the limits within which
persons may be preventively detained and
providing for the safeguards prescribed by
the Constitution and the courts are
required to examine, when demanded,
whether there has been any excessive
detention, that is whether the limits set by
the Constitution and the Legislature have
been transgressed. Preventive detention is
not beyond judicial scrutiny." (emphasis
supplied)

19. The law relating to preventive
detention vis-a-vis the Fundamental Right
to liberty guaranteed by Article 21 of the
Constitution of India has been discussed by
the Hon'ble Supreme Court in a recent
decision in the case of Banka Sneha
Sheela v. State of Telangana3 in the
following words: -

"24. In Rekha v. State of T.N.
[Rekha v. State of T.N., (2011) 5 SCC 244 :
(2011) 2 SCC (Cri) 596] , a three-Judge
Bench of this Court spoke of the interplay
between Articles 21 and 22 as follows:
(SCC p. 252, paras 13-14 and 17)

"13. In our opinion, Article
22(3)(b) of the Constitution of India which
permits preventive detention is only an
exception to Article 21 of the Constitution.
An exception is an exception, and cannot
ordinarily nullify the full force of the main
rule, which is the right to liberty in Article
21 of the Constitution. Fundamental rights
are meant for protecting the civil liberties
of the people, and not to put them in jail for
a long period without recourse to a lawyer
and without a trial. As observed in R. v.
Secy. of State for the Home Deptt., ex p
Stafford [R. v. Secy. of State for the Home
Deptt., ex p Stafford, (1998) 1 WLR 503
(CA)] : (WLR p. 518 F-G)

''... The imposition of what is in
effect a substantial term of imprisonment
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
175
by the exercise of executive discretion,
without trial, lies uneasily with ordinary
concepts of the rule of law.'

Article 22, hence, cannot be read
in isolation but must be read as an
exception to Article 21. An exception can
apply only in rare and exceptional cases,
and it cannot override the main rule.

14. Article 21 is the most
important
of
the
fundamental
rights
guaranteed by the Constitution of India.
Liberty of a citizen is a most important
right won by our forefathers after long,
historical and arduous struggles. Our
Founding
Fathers
realised
its
value
because they had seen during the freedom
struggle civil liberties of our countrymen
being trampled upon by foreigners, and
that is why they were determined that the
right to individual liberty would be placed
on the highest pedestal along with the right
to life as the basic right of the people of
India.

***

Article 22(1) of the Constitution
makes it a fundamental right of a person
detained to consult and be defended by a
lawyer of his choice. But Article 22(3)
specifically excludes the applicability of
clause (1) of Article 22 to cases of
preventive detention. Therefore, we must
confine the power of preventive detention
to very narrow limits, otherwise the great
right to liberty won by our Founding
Fathers, who were also freedom fighters,
after
long,
arduous
and
historical
struggles, will become nugatory."

25. This Court went on to discuss,
in some detail, the conceptual nature of
preventive detention law as follows: (Rekha
case [Rekha v. State of T.N., (2011) 5 SCC
244 : (2011) 2 SCC (Cri) 596] , SCC p.
255, paras 29-30)

"29. Preventive detention is,
by nature, repugnant to democratic ideas
and an anathema to the rule of law. No
such law exists in the USA and in England
(except during war time). Since, however,
Article 22(3)(b) of the Constitution of India
permits preventive detention, we cannot
hold it illegal but we must confine the
power of preventive detention within very
narrow limits, otherwise we will be taking
away the great right to liberty guaranteed
by Article 21 of the Constitution of India
which was won after long, arduous and
historic struggles. It follows, therefore, that
if the ordinary law of the land (the Penal
Code and other penal statutes) can deal
with a situation, recourse to a preventive
detention law will be illegal.

30.Whenever an order under a
preventive detention law is challenged one
of the questions the court must ask in
deciding its legality is: was the ordinary
law of the land sufficient to deal with the
situation? If the answer is in the
affirmative, the detention order will be
illegal. In the present case, the charge
against the detenu was of selling expired
drugs after changing their labels. Surely
the relevant provisions in the Penal Code
and the Drugs and Cosmetics Act were
sufficient to deal with this situation. Hence,
in our opinion, for this reason also the
detention order in question was illegal."
(emphasis supplied)

26. In an important passage, this
Court then dealt with certain general
observations made by the Constitution
Bench in Haradhan Saha v. State of W.B.
[Haradhan Saha v. State of W.B., (1975) 3
SCC 198 : 1974 SCC (Cri) 816] as follows:
(Rekha case [Rekha v. State of T.N., (2011)
5 SCC 244 : (2011) 2 SCC (Cri) 596] ,
SCC pp. 255-57, paras 33-36 and
176 INDIAN LAW REPORTS ALLAHABAD SERIES

"33. No doubt it has been held in
the
Constitution
Bench
decision
in
Haradhan Saha case [Haradhan Saha v.
State of W.B., (1975) 3 SCC 198 : 1974
SCC (Cri) 816] that even if a person is
liable to be tried in a criminal court for
commission of a criminal offence, or is
actually being so tried, that does not debar
the authorities from passing a detention
order under a preventive detention law.
This
observation,
to
be
understood
correctly, must, however, be construed in
the background of the constitutional
scheme in Articles 21 and 22 of the
Constitution (which we have already
explained). [Ed.: The matter between two
asterisks has been emphasised in original.]
Article 22(3)(b) is only an exception to
Article 21 and it is not itself a fundamental
right [Ed. : The matter between two
asterisks has been emphasised in original.]
. It is Article 21 which is central to the
whole chapter on fundamental rights in our
Constitution. The right to liberty means
that before sending a person to prison a
trial must ordinarily be held giving him an
opportunity of placing his defence through
his lawyer. It follows that if a person is
liable to be tried, or is actually being tried,
for a criminal offence, but the ordinary
criminal law (the Penal Code or other
penal statutes) will not be able to deal with
the situation, then, and only then, can the
preventive detention law be taken recourse
to.

34. Hence, the observation in
SCC para 34 in Haradhan Saha case
[Haradhan Saha v. State of W.B., (1975) 3
SCC 198 : 1974 SCC (Cri) 816] cannot be
regarded as an unqualified statement that
in every case where a person is liable to be
tried, or is actually being tried, for a crime
in a criminal court a detention order can
also be passed under a preventive detention
law.

35. It must be remembered that in
cases of preventive detention no offence is
proved and the justification of such
detention is suspicion or reasonable
probability, and there is no conviction
which can only be warranted by legal
evidence. Preventive detention is often
described as a "jurisdiction of suspicion"
(vide State of Maharashtra v. Bhaurao
Punjabrao Gawande [State of Maharashtra
v. Bhaurao Punjabrao Gawande, (2008) 3
SCC 613 : (2008) 2 SCC (Cri) 128] , SCC
para 63). The detaining authority passes
the order of detention on subjective
satisfaction. Since clause (3) of Article 22
specifically excludes the applicability of
clauses (1) and (2), the detenu is not
entitled to a lawyer or the right to be
produced before a Magistrate within 24
hours of arrest. To prevent misuse of this
potentially dangerous power the law of
preventive detention has to be strictly
construed and meticulous compliance with
the
procedural
safeguards,
however
technical, is, in our opinion, mandatory
and vital.

36. It has been held that the
history of liberty is the history of
procedural
safeguards.
(See
Kamleshkumar Ishwardas Patel v. Union of
India [Kamleshkumar Ishwardas Patel v.
Union of India, (1995) 4 SCC 51 : 1995
SCC (Cri) 643] vide para 49.) These
procedural safeguards are required to be
zealously watched and enforced by the
court and their rigor cannot be allowed to
be diluted on the basis of the nature of the
alleged activities of the detenu. As
observed in Rattan Singh v. State of Punjab
[Rattan Singh v. State of Punjab, (1981) 4
SCC 481 : 1981 SCC (Cri) 853] : (SCC p.
483, para 4)

''4. ... May be that the detenu is a
smuggler whose tribe (and how their
numbers increase) deserves no sympathy
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
177
since its activities have paralysed the
Indian economy. But the laws of preventive
detention afford only a modicum of
safeguards to persons detained under them,
and if freedom and liberty are to have any
meaning in our democratic set-up, it is
essential that at least those safeguards are
not denied to the detenus.'

***

39. Personal liberty protected
under Article 21 is so sacrosanct and so
high in the scale of constitutional values
that it is the obligation of the detaining
authority to show that the impugned
detention meticulously accords with the
procedure
established
by
law.
The
stringency
and
concern
of
judicial
vigilance
that
is
needed
was
aptly
described in the following words in
Reverend Thomas Pelham Dale case
[Reverend Thomas Pelham Dale case,
(1881) LR 6 QBD 376 (CA)] : (QBD p.
461)

''Then comes the question upon
the habeas corpus. It is a general rule,
which has always been acted upon by the
courts of England, that if any person
procures the imprisonment of another he
must take care to do so by steps, all of
which are entirely regular, and that if he
fails to follow every step in the process with
extreme regularity the court will not allow
the imprisonment to continue."

20. Keeping in mind the aforesaid
dictum of the Hon'ble Supreme Court, we
proceed to examine the grounds of
challenge to the validity of the detention
order dated 23-01-2021. The first ground of
challenge is that the alleged incident was an
offence
against
an
individual
which
affected "law and order", but it does not
affect "public order" so as to attract the
provisions of Section 3 (2) of the NSA,
1980.

21. Before proceeding further, it
would be appropriate to have a look at
Section 3 (2) of the NSA, 1980, which is as
follows:

"3. Power to make orders
detaining certain persons.--

.......

(2) The Central Government or
the State Government may, if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of public order or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community it is necessary
so to do, make an order directing that such
person be detained.

.......

(3) If, having regard to the
circumstances prevailing or likely to
prevail in any area within the local limits
of the jurisdiction of a District Magistrate
or a Commissioner of Police, the State
Government is satisfied that it is necessary
so to do, it may, by order in writing, direct,
that during such period as may be specified
in the order, such District Magistrate or
Commissioner of Police may also, if
satisfied as provided in sub-section (2),
exercise the powers conferred by the said
sub-section:

Provided that the period specified
in an order made by the State Government
under this sub-section shall not, in the first
instance, exceed three months, but the State
Government may, if satisfied as aforesaid
that it is necessary so to do, amend such
178 INDIAN LAW REPORTS ALLAHABAD SERIES
order to extend such period from time to
time by any period not exceeding three
months at any one time."

22. An order of detention can be
passed under the aforesaid provision with a
view to prevent a person from acting in any
manner prejudicial to the security of the
State or from acting in any manner
prejudicial to the maintenance of public
order. Numerous judgments have been
cited by the learned Senior Advocate
appearing for the petitioner as well as by
the learned A.G.A. on the interpretation of
the phrase "public order".

23. We now proceed to examine a few
precedents in detail so as to ascertain
whether the facts of the present case make
out a case of disturbance to "public order"
or it would merely fall under the category
of a disturbance to "law and order".

24. In Arun Ghosh Vs. State of West
Bengal4, the preventive detention was
ordered on the following allegations against
the accused: -

"18-5-1966 Teased one Rekha
Rani Barua, and when her father protested
confined and assaulted him.

29-3-1968 One Deepak Kumar
Ray
was
wrongfully
restrained
and
assaulted with lathis and rods.

1-4-1968 Attempt was made to
assault Deepak Kumar Ray at the Malda
Sadar Hospital where he was being treated
for his injuries in the previous assault.

2-9-1968
Threatened
one
Phanindra C. Das that he would insult his
daughter publicly.

26-10-1968 Embraced Uma Das
d/o Phanindra C. Das and threw white
powder on her face (Criminal case
started).

7-12-1968 Obscenely teased Smt
Sima Das, sister of Uma Das and beat her
with chappals.

18-12-1968 Smt Sima Das was
again teased

26-1-1969 Threatened the life of
Phanindra C. Das."

25. In the light of the aforesaid facts,
the Hon'ble Supreme Court proceeded to
hold as follows:-

"3. The submission of the
counsel is that these are stray acts directed
against individuals and are not subversive
of public order and therefore the detention
on the ostensible ground of preventing
him from acting in a manner prejudicial
to public order was not justified. In
support of this submission reference is
made to three cases of this Court: Dr Ram
Manohar Lohia v. State of Bihar (1966) 1
SCR 709 ; Pushkar Mukherjee v. State of
W.B. WP No. 179 of 1968, decided on
November 7, 1968 : (1969) 1 SCC 10 and
Shyamal Chakraborty v. Commissioner of
Police, Calcutta WP No. 102 of 1969,
decided on August 4, 1969 : (1969) 2 SCC
426. In Dr Ram Manohar Lohia case
[(1966) 1 SCR 709] this Court pointed out
the difference between maintenance of law
and order and its disturbance and the
maintenance of public order and its
disturbance. Public order was said to
embrace more of the community than law
and order. Public order is the even tempo
of the life of the community taking the
country as a whole or even a specified
locality. Disturbance of public order is to
be distinguished from acts directed against
individuals which do not disturb the
society to the extent of causing a general
disturbance of public tranquility. It is the
degree of disturbance and its affect upon
the life of the community in a locality
1 All. Abhayraj Gupta Vs. Superintendent, Central Jail, Bareilly & Ors.
179
which determines whether the disturbance
amounts only to a breach of law and
order. Take for instance, a man stabs
another. People may be shocked and even
disturbed, but the life of the community
keeps moving at an even tempo, however
much one may dislike the act. Take another
case of a town where there is communal
tension. A man stabs a member of the other
community. This is an act of a very
different sort. Its implications are deeper
and it affects the even tempo of life and
public order is jeopardized because the
repercussions of the act embrace large
sections of the community and incite them
to make further breaches of the law and
order and to subvert the public order. An
act by itself is not determinant of its own
gravity. In its quality it may not differ from
another but in its potentiality it may be very
different. Take the case of assault on girls.
A guest at a hotel may kiss or make
advances to half a dozen chamber maids.
He may annoy them and also the
management but he does not cause
disturbance of public order. He may even
have a fracas with the friends of one of the
girls but even then it would be a case of
breach of law and order only. Take another
case of a man who molests women in lonely
places. As a result of his activities girls
going to colleges and schools are in
constant danger and fear. Women going for
their ordinary business are afraid of being
waylaid and assaulted. The activity of this
man in its essential quality is not different
from the act of the other man but in its
potentiality and in its affect upon the public
tranquility there is a vast difference. The
act of the man who molests the girls in
lonely places causes a disturbance in the
even tempo of living which is the first
requirement of public order. He disturbs
the society and the community. His act
makes all the women apprehensive of
their honour and he can be said to be
causing disturbance of public order and
not merely committing individual actions
which may be taken note of by the criminal
prosecution agencies. It means therefore
that the question whether a man has only
committed a breach of law and order or
has acted in a manner likely to cause a
disturbance of the public order is a
question of degree and the extent of the
reach of the act upon the society. The
French distinguish law and order and
public order by designating the latter as
order publique. The latter expression has
been recognised as meaning something
more than ordinary maintenance of law
and order. Justice Ramaswami in Writ
Petition No. 179 of 1968 drew a line of
demarcation between the serious and
aggravated forms of breaches of public
order which affect the community or
endanger the public interest at large from
minor breaches of peace which do not
affect the public at large. He drew an
analogy between public and private crimes.
The analogy is useful but not to be pushed
too far. A large number of acts directed
against persons or individuals may total up
into a breach of public order.