# Azad Vikram Singh v. Union of India

- **Citation:** (2016) 1 ILRA 2
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-28
- **Case number:** Habeas Corpus No. 54 of 2015
- **Bench:** Ajai Lamba, Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/azad-vikram-singh-v-union-of-india-43406
- **Pages:** 7

## Headnote

(A)Constitution of India, Art.-226-Habeas
Corpus
petition-detention
on
groundpetition trying for bail-while the day on
which impugned detention order passedbail
application
already
rejected-hence
order passed without application of mindother
co-accused
including
father
of
petitioner are even in jail-no question of
claiming parity-detention order quashed.
Held: Para-16
We have taken notice of the fact that in
the impugned order dated 30.1.2015, it
has been mentioned that the petitioner
is making endeavour to come out on bail.
One of the grounds taken for invoking
provisions of the National Security Act is
that after dismissal of application for bail
by Chief Judicial Magistrate, Gonda, the
application for bail of the petitioner is
pending adjudication in Case Crime
No.254 of 2014 (supra) in the Court of
Sessions Judge, Gonda. Admittedly, the
said fact has been wrongly recorded in
the impugned order. Application for bail
of the petitioner had been dismissed on
23.1.2015. As on the date when the
proceedings under the National Security
Act were initiated, application for bail on
behalf of the petitioner in the murder
case was not even pending. Thus, a nonexistent circumstance has been taken
into account for invoking the provisions
of National Security Act. It is evident
that the order has been passed without
application of mind.
The
apprehension
of
the
detaining
authority that the petitioner shall be
released on bail appears to be without
any cogent material and it appears to
have been passed on mere ipse dixit of
the
detaining
authority.
In
these
circumstances, the order of detention is
not based on sufficient material as well
as
subjective
satisfaction
of
the
detaining authority.
(B)Constitution of India, Art.-226-detention
order-96 days unexplained delay-detention
order lost its importance-quashed.
Held-Para-19In view of the aforesaid discussions, we
are of the view that on the date of
passing of the detention order, there was
no subjective satisfaction of the District
Magistrate Gonda and there was no
possibility of being released on bail
because on the date of passing of the
detention order, any application for bail
was not pending and even the bail of the
similarly placed named co-accused, who
is the father of the petitioner had also
not been granted. The delay of 96 days
in passing the impugned detention order
1 All.
 Azad Vikram Singh Vs. Union of India
3
also looses its importance. There is no
explanation to this inordinate delay and
no such evidence is there that after lapse
of 96 days of arrest, the petitioner was
trying to disturb the public order again
by any of his overt action. Therefore, the
chain
of
connection
between
the
dangerous activities relied on and the
detention order passed is snapped by
this long and unexplained delay. In these
peculiar facts and circumstances of this
case,
the
detention
order
dated
30.01.2015 is liable to be quashed.
Case Law discussed:
1970 (1) SCC 98; (1973) SCC (Cri) 16; AIR
1964 SC 334; 1983 SCC (Cri) 840; 1975 SCC
(Cri) 365; (1989) SCC 22; [1964 SC 334];
[1983 (4) SCC 301]; [(1985) 4 SCC 232];
[1986 (4) SCC 378]; [(1984) 3 SCC 14];
[(1986) 4 SCC 407]; [(1986) 4 SCC 416];
[(1987) 4 SCC 48]; [(1988) 1 SCC 436.

## Text

2
 INDIAN LAW REPORTS ALLAHABAD SERIES
patient's agent in a suitable container
appropriately
labeled
for
subsequent
administration to, or use by, a patient."
5. In view of the aforesaid definition
clause the judgments which have been
relied upon by the learned counsel for the
petitioner and have been brought on
record do not come to his aid with the
enforcement of this new regulation. The
petitioners have thus no right to prescribe
medicines.
6. The writ petition is misconceived
and is accordingly dismissed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.01.2016
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE ADITYA NATH MITTAL, J.
Habeas Corpus No. 54 of 2015
Azad Vikram Singh
 ...Petitioner
Versus
Union of India
...Respondent
Counsel for the Petitioner:
R.P. Mishra
Counsel for the Respondent:
Govt.Advocate, A.S.G., Ajay Kumar Singh
(A)Constitution of India, Art.-226-Habeas
Corpus
petition-detention
on
groundpetition trying for bail-while the day on
which impugned detention order passedbail
application
already
rejected-hence
order passed without application of mindother
co-accused
including
father
of
petitioner are even in jail-no question of
claiming parity-detention order quashed.
Held: Para-16
We have taken notice of the fact that in
the impugned order dated 30.1.2015, it
has been mentioned that the petitioner
is making endeavour to come out on bail.
One of the grounds taken for invoking
provisions of the National Security Act is
that after dismissal of application for bail
by Chief Judicial Magistrate, Gonda, the
application for bail of the petitioner is
pending adjudication in Case Crime
No.254 of 2014 (supra) in the Court of
Sessions Judge, Gonda. Admittedly, the
said fact has been wrongly recorded in
the impugned order. Application for bail
of the petitioner had been dismissed on
23.1.2015. As on the date when the
proceedings under the National Security
Act were initiated, application for bail on
behalf of the petitioner in the murder
case was not even pending. Thus, a nonexistent circumstance has been taken
into account for invoking the provisions
of National Security Act. It is evident
that the order has been passed without
application of mind.
The
apprehension
of
the
detaining
authority that the petitioner shall be
released on bail appears to be without
any cogent material and it appears to
have been passed on mere ipse dixit of
the
detaining
authority.
In
these
circumstances, the order of detention is
not based on sufficient material as well
as
subjective
satisfaction
of
the
detaining authority.
(B)Constitution of India, Art.-226-detention
order-96 days unexplained delay-detention
order lost its importance-quashed.
Held-Para-19In view of the aforesaid discussions, we
are of the view that on the date of
passing of the detention order, there was
no subjective satisfaction of the District
Magistrate Gonda and there was no
possibility of being released on bail
because on the date of passing of the
detention order, any application for bail
was not pending and even the bail of the
similarly placed named co-accused, who
is the father of the petitioner had also
not been granted. The delay of 96 days
in passing the impugned detention order
1 All.
 Azad Vikram Singh Vs. Union of India
3
also looses its importance. There is no
explanation to this inordinate delay and
no such evidence is there that after lapse
of 96 days of arrest, the petitioner was
trying to disturb the public order again
by any of his overt action. Therefore, the
chain
of
connection
between
the
dangerous activities relied on and the
detention order passed is snapped by
this long and unexplained delay. In these
peculiar facts and circumstances of this
case,
the
detention
order
dated
30.01.2015 is liable to be quashed.
Case Law discussed:
1970 (1) SCC 98; (1973) SCC (Cri) 16; AIR
1964 SC 334; 1983 SCC (Cri) 840; 1975 SCC
(Cri) 365; (1989) SCC 22; [1964 SC 334];
[1983 (4) SCC 301]; [(1985) 4 SCC 232];
[1986 (4) SCC 378]; [(1984) 3 SCC 14];
[(1986) 4 SCC 407]; [(1986) 4 SCC 416];
[(1987) 4 SCC 48]; [(1988) 1 SCC 436.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. This petition in the nature of Habeas
Corpus has been filed with the prayer to
declare the impugned detention order dated
30.01.2015 passed under National Security
Act, 1980 as illegal and arbitrary with the
further prayer to quash the consequential
approval order dated 09.02.2015.
2. The facts giving rise to the present
petition are that on 25.10.2014 at about 7.35
am, the petitioner along with his other
companions had caused murder of one Sri
Om Prakash Singh at his brick kiln and had
absconded from there. Case Crime No.254 of
2014 under sections 147, 148, 149, 302, 34
Indian Penal Code, Police Station Wazirganj,
District Gonda and another Case at Crime
No.255 of 2014 under section 3/25 Arms Act
in the same police station were registered and
the petitioner was arrested.
3. On 26.01.2015, a report was made
by the Police Station Wazir Ganj, District
Gonda to the Superintendent of Police,
Gonda stating therein that there was a serious
threat to public law and order and the
petitioner is trying to get his release in the
aforesaid offences by which the maintenance
of public law and order shall be disturbed.
Therefore, the petitioner should be detained
under Nation Security Act, 1980 (for short
'NSA'). Circle Officer Incharge of Police
Station Wazirganj, District Gonda as well as
Additional Superintendent of Police Gonda
recommended to the District Magistrate
Gonda for invoking the provisions of 'NSA'.
Upon the recommendation of the police
officers, the District Magistrate Gonda,
considering all the facts and circumstances of
the case, passed the impugned detention
order dated 30.01.2015 for detaining the
petitioner under section 3(2) of the NSA.
4. Learned counsel for the petitioner
has submitted that the incident of murder
had taken place on 25.10.2014 and the
provisions of 'NSA' have been invoked after
a lapse of about 96 days. Therefore, the
order is stale. It has also submitted that the
application for bail of the petitioner was
already rejected on 23.01.2015 and on the
date of passing of detention order i.e.
30.01.2015, second application for bail was
not pending. Therefore, there was no
intention of the petitioner to come out from
Jail on 30.01.2015. There was no nexus
between the prejudicial activities in the
order of detention and the ground of
detention was punitive. Therefore, the order
is bad in law. It has also been submitted that
the said incident of murder was committed
by so many persons but the provisions of
'NSA' have been invoked only against the
petitioner and no explanation has been
furnished as to why the provisions were not
invoked against other accused persons. In
these circumstances, the order of detention
is illegal.
4
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Per contra, Sri Ajay Kumar Singh
Learned
Senior
Central
Government
Counsel appearing on behalf of Union of
India and Sri Rishad Murtaza, learned
Government
Advocate
appearing
on
behalf of respondent State has supported
the detention order in view of the grounds
mentioned in the detention order.
6. We have heard learned counsel
for the parties' and perused the pleadings
of petition.
7. Hon'ble the Apex Court in the
case of Arun Ghosh vs. State of West
Bengal reported at 1970 (1) SCC 98 has
held that :
"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 tranquillity. It is the
degree of disturbance and its effect upon
the life of the community in a locality
which determines whether the disturbance
amounts only to a breach of law and
order. 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. There is
no formula by which one case can be
distinguished from another.
In Kanu Vishwas vs. State of West
Bengal; (1973) SCC (Cri) 16, Hon'ble the
Apex Court has held as under:
"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. Public
order is what the French call "order
publique" and is something more than
ordinary maintenance of law and order.
The test to be adopted in determining
whether an act affects law and order or
public order is: Does it lead to disturbance
of the current life of the community so as
to amount to a disturbance of the public
order or does it affect merely an
individual leaving the tranquillity of the
society undisturbed.
In Rameshwar Shaw vs. District
Magistrate, Burdwan and another; AIR
1964 SC 334, Hon'ble the Apex Court has
held that:
"if a person is already in jail custody, as
a result of a remand order passed by a
competent authority, it cannot rationally be
postulated that if he is not detained, he would
act in a prejudicial manner. At the point of
time when an order of detention is going to
be served on a person, it must be patent that
the said person would act prejudicially if he
is not detained and that is a consideration
which would be absent when the authority is
dealing with a person already in detention.
The satisfaction that it is necessary to detain
a person for the purpose of preventing him
from acting in a prejudicial manner is thus
the basis of the order under section 3(1)(a)
and is outside its purview.
Similarly in Alijan Mian vs. District
Magistrate, Dhanbad and others; 1983
SCC (Cri.) 840, Hon'ble the Apex Court
has held as under :
"It may be pointed out at the very
outset that the detaining authority was
alive to the fact that the petitioners were
in jail custody on the date of the passing
of the detention orders as will be clear
from the following statement in the
grounds of detention:
1 All.
 Azad Vikram Singh Vs. Union of India
5
"The subject is in jail and is likely to
be released on bail. In the circumstances I
am satisfied that if he is allowed to remain
at large, he will indulge in activities
prejudicial to the maintenance of public
order."
The position would have been
entirely different if the petitioners were in
jail and had to remain in jail for a pretty
long time. In such a situation there could
be no apprehension of breach of 'public
order' from the petitioners. But the
detaining authority was satisfied that if
the petitioners were enlarged on bail, of
which there was every likelihood, it was
necessary to prevent them from acting in
a manner prejudicial to public order."
8. Learned counsel for the petitioner
has also drawn our attention towards
Rabindra Kumar Ghosel @ Buli vs. State
of West Bengal; 1975 SCC (Cri) 365 in
which Hon'ble the Apex Court has held as
under:
"We find that the actual order of
detention was passed only around three
months thereafter. The whole purpose and
object of the Maintenance of Internal
Security Act is that persons who are likely
to imperil public order are not allowed to
be free to indulge in this dangerous
activity. We cannot understand the
District Magistrate sleeping over the
matter for well nigh three months and
then claiming that there is a real and
imminent danger of prejudicial activity
affecting public order. The chain of
connection
between
the
dangerous
activities relied on and the detention order
passed is snapped by this long and
unexplained delay. If there were some
tenable explanation for this gap we would
have been reluctant to interfere with the
detention order but none has been stated
in the counter affidavit filed to-day many
months after time was taken for filing a
return. In these circumstances, we are not
satisfied that there is any justification for
the claim of subjective satisfaction put
forward by the District Magistrate. The
petition is allowed, the rule nisi confirmed
and the petitioner directed to be set at
liberty."
9.
The petitioner Azad Vikram Singh
alleged to have committed crime under
sections 147, 148, 149, 302/34 Indian Penal
Code on 25.10.2014 at 7.35 am regarding
which the First Information Report at Case
Crime No.254 of 2014 was lodged on
25.10.2014 at 8.30 am against the petitioner
and four other companions. The petitioner
was arrested by the local police on 25.10.2014
itself and upon his pointing out, a pistol is said
to have been recovered on 26.10.2014. The
detention
order
has
been
passed
on
30.01.2015. It is admitted case of the
prosecution also that on the date of detention
order i.e. 30.01.2015, the second application
for bail was not pending before any authority.
However, the second application for bail has
been rejected on 14.05.2015.
10. After passing of the impugned
order dated 30.01.2015, the petitioner had
moved his first representation to District
Magistrate, Gonda on 06.02.2015, which
was rejected on 11.02.2015. Second
representation has also been rejected by
order
dated
15.02.2015
while
representations made to Union of India on
11.02.2015 and 09.02.2015, have also
been rejected by Union of India by order
dated 24.02.2015. The aforesaid facts
make it clear that on the date of passing of
the impugned order dated 30.01.2015, the
first application for bail was already
rejected and the second application for
bail was not pending.
6
 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Hon'ble the Apex Court in a case
reported at (1989) SCC 22 [Abdul Razak
Abdul Wahab Sheikh vs. S. N. Sinha,
Commissioner of Police, Ahmedabad and
another] after considering the law laid
down in Rameshwar Shaw vs. District
Magistrate, Burdwan and another [AIR
1964 SC 334]; Alijan Mian vs. District
Magistrate, Dhanbad and others [1983 (4)
SCC 301]; Ramesh Yadav vs. District
Magistrate Etah [(1985) 4 SCC 232];
Suraj Pal Sahu vs. State of Maharashtra
[1986 (4) SCC 378]; Vijay Narain Singh
vs. State of Bihar [(1984) 3 SCC 14]; Raj
Kumar Singh vs. State of Bihar [(1986) 4
SCC 407]; Binod Singh vs. District
Magistrate Dhanbad [(1986) 4 SCC 416];
Poonam Lata vs. M. L. Wadhawan
[(1987) 4 SCC 48] ; and Smt. Shashi
Aggarwal vs. State of U.P. [(1988) 1 SCC
436 has held as under:
"On a consideration of the aforesaid
decisions the principle that emerges is that
there must be awareness in the mind of
the detaining authority that the detenu is
in custody at the time of service of the
order of detention on him and cogent
relevant materials and fresh facts have
been disclosed which necessitate the
making of an order of detention. In this
case, the detenu was in jail custody in
connection with a criminal case and the
order of detention was served on him in
jail. It is also evident that the application
for bail filed by the detenu was rejected
by the Designated Court on 13th May,
1988. It is also not disputed that thereafter
no application for bail was made for
release of the detenu before the order of
detention was served on him on 23rd
May, 1988. It appears that in the grounds
of detention there is a statement that at
present you are in jail yet "there are full
possibilities that you may be released on
bail in this offence also." This statement
clearly shows that the detaining authority
was completely unaware of the fact that no
application for bail was made on behalf of
the detenu for his release before the
Designated Court and as such the possibility
of his coming out on bail is non-existent.
This fact of non-awareness of the detaining
authority, in our opinion, clearly establishes
that the subjective satisfaction was not
arrived at by the detaining authority on
consideration of relevant materials."
12. In the present case also, it
appears that the detaining authority was
completely unaware of the fact that any
application for bail was not pending
before any competent court and, as such,
there was no possibility of coming out of
bail. It goes to show that the aforesaid
subjective satisfaction as provided in
Section 3(2) of the 'NSA' was not arrived
at by the detaining authority.
13. Learned counsel for the
petitioner has also placed reliance on
various Division Bench judgments of this
Court in which the same view has been
taken that if there was no apprehension on
the part of the detenue to get release on
bail, the factum of subjective satisfaction
was not proved and the detention order
becomes vitiated.
14. Hon'ble the Apex Court in Smt.
Sashi Agarwal vs. State of U.P.; 1988 (1)
SCC 436 has further held that mere
possibility of release on bail of the
detenue is not enough for preventive
detention. There must also be credible
information or cogent reasons apparent on
the record that the detenue, if released on
bail, is likely to commit activities
prejudicial to the maintenance of public
order.
1 All.
 Azad Vikram Singh Vs. Union of India
7
In the instant case, there is no other
criminal history of the petitioner except
the aforesaid two cases, out of which the
second case is of recovery of country
made pistol arising out of first case of
murder.
15. The detention order of the
petitioner has been served upon him when
he is already in jail. Therefore, there
should be a real possibility of his being
bailed out provided he has moved a bail
application, which is pending. It follows
logically that if no bail application is
pending, then there is no likelihood of the
person in custody being released on bail
and therefore, the detention order shall be
illegal. However, an exception to this rule
is that where a co-accused whose case
stands on the same footing had been
granted bail, in such circumstances, the
detaining
authority
can
reasonably
conclude that there is likelihood of the
detenue being released on bail even
though no bail application of his, is
pending since most courts normally grant
bail on the ground of parity.
In the present case, the petitioner and
his father are named in the first
information report and three unknown
persons have been shown accompanying
the petitioner. Admittedly, the father of
the petitioner has also not been released
on bail.
16. We have taken notice of the fact
that in the impugned order dated
30.1.2015, it has been mentioned that the
petitioner is making endeavour to come
out on bail. One of the grounds taken for
invoking provisions of the National
Security Act is that after dismissal of
application for bail by Chief Judicial
Magistrate, Gonda, the application for
bail
of
the
petitioner
is
pending
adjudication in Case Crime No.254 of
2014 (supra) in the Court of Sessions
Judge, Gonda. Admittedly, the said fact
has been wrongly recorded in the
impugned order. Application for bail of
the petitioner had been dismissed on
23.1.2015. As on the date when the
proceedings under the National Security
Act were initiated, application for bail on
behalf of the petitioner in the murder case
was not even pending. Thus, a nonexistent circumstance has been taken into
account for invoking the provisions of
National Security Act. It is evident that
the order has been passed without
application of mind.
The apprehension of the detaining
authority that the petitioner shall be
released on bail appears to be without any
cogent material and it appears to have
been passed on mere ipse dixit of the
detaining
authority.
In
these
circumstances, the order of detention is
not based on sufficient material as well as
subjective satisfaction of the detaining
authority.
17. As far as the delay in passing the
detention order is concerned, there is
delay of almost 96 days. The incident
took place at a brick kiln, which is
admittedly situated far away from the
Abadi. Therefore, there cannot be a
ground to invoke the provisions of 'NSA'
on the ground that the shopkeepers in
panic, downed their shutters or it
amounted to disturbances of public order
by such incident. At the most, there may
be temporary disturbances at the place of
incident, which is far away from the
township. Therefore, the shorter life of
such disturbance would be of lower
potential to disturb the even tempo of the
8
 INDIAN LAW REPORTS ALLAHABAD SERIES
life of the society. The said incident may
be said to be related to law and order
problem and it certainly not the public
order. The detaining authority in exercise
of power under 'NSA' must act strictly
within the limitations provided under the
Act, so that grant of liberty is not
imperilled
beyond
the
Constitution.
Individual liberty is a cherished right, one
of the most valuable fundamental rights
provided by our Constitution to the
citizens of this country. Such right may be
envied only strictly in accordance with
law. The authorities cannot be expected to
deal with the liberty of individual in a
causal manner.
As
per
the
statement
of
the
complainant recorded under section 161
Code of Criminal Procedure, there was
enmity between the parties due to election
of Pradhani. Therefore, it was an
individual act on the part of the petitioner,
which cannot be said to have affected the
public order.
18. In the present case, the petitioner
and his father are named in the first
information report but admittedly, no
detention order has been passed against
the father of the petitioner, which
establishes the discrimination with the
petitioner.
19.
In view of the aforesaid
discussions, we are of the view that on the
date of passing of the detention order, there
was no subjective satisfaction of the District
Magistrate Gonda and there was no
possibility of being released on bail because
on the date of passing of the detention order,
any application for bail was not pending and
even the bail of the similarly placed named
co-accused, who is the father of the petitioner
had also not been granted. The delay of 96
days in passing the impugned detention order
also looses its importance. There is no
explanation to this inordinate delay and no
such evidence is there that after lapse of 96
days of arrest, the petitioner was trying to
disturb the public order again by any of his
overt action. Therefore, the chain of
connection between the dangerous activities
relied on and the detention order passed is
snapped by this long and unexplained delay.
In these peculiar facts and circumstances of
this case, the detention order dated
30.01.2015 is liable to be quashed.
20. Thus, the detention order dated
30.01.2015
and
the
consequential
approval order dated 09.02.2015 passed
under National Security Act, 1980 are
hereby quashed.
21. The petition is allowed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2016
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 69 of 2016
Subhash Chandra Vishwakarma . Petitioner
Versus
Chief Information Commissioner U.P. State
Information & Ors.
...Respondents
Counsel for the Petitioner:
Siddhartha Srivastava
Counsel for the Respondents:
C.S.C., Shikhar Ananad
Constitution
of
India,
Art.-226-Petition
against order-by National Forum under RTI
Act-petitioner being accused in criminal
case
charge-sheet
filed-against
that
application for fresh investigation-upon in