# Dablu Rai Alias Dilip Rai v. State Of U.P. & Ors

- **Citation:** (2016) 3 ILRA 703
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-03-09
- **Bench:** Bala Krishna Narayana, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dablu-rai-alias-dilip-rai-v-state-of-u-p-ors-43590
- **Pages:** 13

## Text

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3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
703
District Judge, Mainpuri within a month from today) with a strict warning to them not to
repeat such act in future which may bring bad name to the legal fraternity.

20. The amount so deposited by them shall be transferred to District Legal Cell of
District Mainpuri.

21. In case the fine so imposed on them is not deposited by them within the specified
period, the same shall be recovered as arrears of land revenue from them.

22. The present application is dismissed on this ground alone.

23. It is made clear that the present application shall not be treated to be filed on behalf
of applicant no. 2, Rampal.

24. The Registrar General is directed to send a certified copy of this order to the
District Judge, Mainpuri for compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Habeas Corpus Writ Petition No. - 45364 of 2015

Dablu Rai Alias Dilip Rai ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for Petitioner
Manoj Kumar Singh, Chandrakesh Mishra, Daya Shankar Mishra, Dhirendra Kr. Srivastava

Counsel for Respondents
Govt.Advocate, A.S.G.I.(2015/1709), N.D.Rai

In this writ petition the question of legallity and validity of order dated 28.04.2015 passed by the
District Magistrate, Chandauli, respondent no. 4

directing detention of the petitioner Dablu Rai alias Dilip Rai in exercise of his power under Section 3
(2) of the National Security Act, has been preferred in this writ. S. H. O. Ram Narain Ram along with
his force was on the duty of maintaining law and order in the area on 9.11.2014 in his private vehicle,
he received an information from the police informer that several animals were being transported in
two vehicles which were coming from Nawrangabad side at Kabai Paharpur and heading towards
Bengal-via-Bihar for the purpose of slaughtering.
704 INDIAN LAW REPORTS ALLAHABAD SERIES
As per the legal ruling cited by the parties, what emerges from these rulings is that, there must be a
reasonable basis for the detention order, and there must be material to support the same. The Court
is entitled to scrutinize the material relied upon by the Authority in coming to its conclusion, and
accordingly determine if there is an objective basis for the subjective satisfaction. The subjective
satisfaction must be two fold. The detaining authority must be satisfied that the person to be detained
is likely to act in any manner prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of the public order and the authority must be further satisfied that it is
necessary to detain the said person in order to prevent from so acting.

Court held that the detaining authority was not conscious of all the relevant aspects of this case and
passed the impugned order merely on the subjective satisfaction sensing activities of the petitioner
prejudicial to the public order, if not detained.

The writ petition succeeds and is allowed

List of Cases Cited

1. Pebam Ningol Mikoi Devi Vs. State of Manipur and others (2010) 9 Supreme Court Cases 618
2. Fazal Ghosi v. State of Uttar Pradesh, (1987) 3 SCC 502
3. Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC 556
4. State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35
5. State of Rajasthan v. Talib Khan, (1996) 11 SCC 393
6. Tarapada De and others Versus The State of West Bengal AIR
(38) 1951 SC 174
7. Tulshi Rabidas Versus The State of West Bengal AIR 1975 SC 638
8. D. M. Nowgong and another Versus Sharat Modoi AIR 1984 SC 43
9. Baby Devassy Chully alias Bobby Versus Union of India 2013 (4) SCC 531
10. Subramanian Versus State of Tamilnadu and another 2012 (4) SCC 699
11. State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591
12. Subramaniyam Versus State of Tamilnadu 2012 (4) SCC 699
13. Haradhan Saha Versus State of Bengal, (1975) 3 SCC 198; AIR 1975 S.C. 2151
14. Kamarunnissa Vs. Union of India and another; (1991) 1SCC 128
15. Veeramani Vs. State of Tamil Nadu
16. TV Sravanan alias SAR Prasana Venkatachaariar Chaturvedi Vs.State through Secretary and
another (2006) 2 SCC664
17. Union of India Vs. Paul Manickam and another JT 2003 (Suppl 2) SC 503
18. The Secretary to government, Public (Law and Order-F) and another Versus Nabila and another

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. Questioning the legality and validity of the order dated 28.4.2015 passed by the
District Magistrate, Chandauli, respondent no. 4 directing detention of the petitioner Dablu
Rai alias Dilip Rai in exercise of his power under Section 3 (2) of the National Security Act
(hereinafter referred to as the 'Act') the petitioner has preferred this Habeas Corpus Writ
Petition.

2. Some brief facts giving rise to the controversy involved in this writ petition are that
while S. H. O. Ram Narain Ram along with his force was on the duty of maintaining law
and order in the area on 9.11.2014 in his private vehicle, he received an information from
the police informer that several animals were being transported in two vehicles which were
3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
705
coming from Nawrangabad side at Kabai Paharpur and heading towards Bengal-via-Bihar
for the purpose of slaughtering. Upon receiving the aforesaid information, S. H. O., Ram
Narain Ram promptly informed the police force already present in the area and ordered
interception of the aforesaid vehicle, on which S. I. Chhotu Ram along with his force
reached Kabai Paharpur at about 2.00 P. M. and when he saw a pick up coming from
towards the side of the wine shop, he signaled the driver of the vehicle to stop, on which
Ram Bali, driver of the vehicle parked the vehicle and after locking the steering jumped out
from the vehicle along with his other companions and ran away. The search of the pick up
which bore registration of U. P.-67T-6226, led to the recovery of two cows and one calf who
were mercilessly tied and gagged with ropes. The animals were set free by the members of
the police force. In the meantime, the driver of the other pick up bearing registration No.
67T-4036, which was allegedly being driven by the petitioner and chased by another police
vehicle, which was occupied by S. I. Chhotu Ram, Constable Sumit Singh and Constable
Bhanu Kumar Pandey, dashed his van repeatedly against the other police vehicle with the
intention of killing it's occupants and as a result, it's incumbents received several injuries
and government vehicle bearing registration No. U. P. 67G-0164, was pushed down from
the road as a result of the collisions it was also damaged. Upon exhortations of the petitioner
that the police personnel were taking away the cattle of the village as well as his vehicle,
about 70-80 persons armed with sticks, brickbats and sharp edged weapons reached the
place of occurrence and started pelting stones at the members of the police force and as a
result of the aforesaid assault, S. I. Chhoturam, Constable Sumit Singh, Constable Bhanu
Kumar Pandey, Constable Moin Rhyne and Constable Rang Bahadur Gupta received severe
injuries and the government vehicle bearing registration No. U. P.-67G-0164 was also badly
damaged. As a result of the aforesaid criminal activity, an atmosphere of panic gripped the
village. Shop keepers pulled down the shutters of their shops and residents of the village hid
themselves in their houses. Upon enquiry made from the police officers and the police
informer, the complicity of the petitioner along with thirty six other accused was fully
established. The criminal activity of the petitioner and the other co-accused had disturbed
the tempo of the life and in order to restore the law and order in the area following the
aforesaid incident, additional police forces had to be requisitioned from the nearby police
stations and deployed in the area and it was after considerable effort, normalcy returned in
the area. As a result of the aforesaid incident, public order was totally shattered. The daring
crime committed by the petitioner and the other co-accused was widely published in several
national and local level newspapers namely, Rashtriya Sahara, Dainik Jagran and Amar
Ujala with the various captions like "Cattle smugglers attacked the police force and
damaged vehicles", "Police force attacked by cattle smugglers" and "Five persons received
injuries in the incident of stone throwing by cattle smugglers."

3. On the basis of the F. I. R. lodged by the S. H. O., Dhanapur district-Chandauli with
regard to the aforesaid incident, Case Crime No. 169 of 2015, under Sections-3/5A/8 of the
Prevention of Cows Slaughter Act and Section-11 of the Protection of Animals From
Cruelty Act and Case Crime No. 170 of 2014, under Sections-307, 147, 148, 149, 323, 504,
506, 186, 353, 332, 336, 427/34 I. P. C. and Section-7 of Criminal Law Amendment Act and
Section-13 of the Prevention of Damages to Public Property Act were registered against the
petitioner and 36 other persons and S. I. Suresh Yadav was entrusted with the investigation
706 INDIAN LAW REPORTS ALLAHABAD SERIES
of the aforesaid case. During investigation the I. O. recorded the statements of Ram Narain
Ram (complainant) the then S. H. O., police station-Dhanapur, S. I. Chhotu Ram, Constable
Sumit Kumar Singh, Constable Navin Kumar Pandey, Constable Moin Rain, Constable
Bhanu Kumar Pandey, Constable Rang Bahadur Gupta and Constable Paramhans Singh. He
also brought on record the injury reports of the police personnel who had received injuries in
the incident and at the instance of S. I. Chhotu Ram inspected the place of occurrence and
prepared the site plan. After completion of the investigation the I. O. submitted chargesheet
Nos. 01B/15, dated 24.3.2015 and 02A/15, dated 24.3.2015 against the petitioner and other
accused.

4. While the petitioner was in district jail, Varanasi on account of his being accused in
the aforesaid cases, he was served with the impugned detention order dated 28.4.2015
passed by the respondent no. 4 under Section-3 (2) of the National Security Act along with
the grounds of detention. The representations filed by the petitioner were rejected by the
State as well as the Central Governments after receiving the report of the advisory board,
State Government confirmed the detention order dated 28.4.2015 passed by the respondent
no. 4 vide its order dated 9.6.2015.

5. Sri Daya Shankar Misra Misra, learned counsel for the petitioner submitted that there
was absolutely no material before the detaining authority which could justify the belief of
the detaining authority that the acts allegedly committed by the petitioner and other accused
were in any way prejudicial to the public order. He further submitted that the relevant
information and material showing that before passing of the impugned order, the petitioner
apart from the cases mentioned in the grounds of detention was also involved / accused in
other case. Apart from the two cases mentioned in the grounds of detention, the petitioner
was also involved in other cases namely, Case Crime No. 4 of 1996, under Sections-323,
504, 506, 324, 325 and 435 I. P. C., P. S.- Dheena, district-Chandauli, Case Crime No. 66 of
1997, under Sections-323, 324, 504 and 506 I. P. C., P. S.-Dheena, district- Chandauli in
which he had been acquitted, Case Crime No. 41 of 2014, under Sections-3/5A/8 of the
Prevention of Cows Slaughter Act and Section-11 of the Protection of Animals to Cruelty
Act, P. S.-Dheena, district-Chandauli and Case Crime No. 57 of 2015, under Section-3 (1)
of U. P. Gangsters and Anti Social Activities (Prevention) Act, P. S.- Dhanapur, districtChandauli, in which he had been bailed out. But no material with regard to the aforesaid
cases was brought to the notice of the detaining authority. The aforesaid omission on the
part of the sponsoring authority which amounted to withholding relevant and pertinent
material from the consideration of the detaining authority has totally vitiated the subjective
satisfaction of the detaining authority recorded in the impugned order. He next submitted
that the impugned order having been passed by the detaining authority after the petitioner
had been granted bail in both the cases on the basis of which Section 3 (2) of the N. S. A.
was invoked against him, the same amounts to cancelling his bail by the State without taking
recourse to the legal remedy available in this regard.

6. Sri Daya Shankar Misra, learned counsel for the petitioner also submitted that the
incident on the basis of which the impugned order of preventive detention was passed, was a
simple case of law and order.
3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
707

7. Learned counsel for the petitioner next submitted that the impugned order of
preventive detention was passed by the respondent no. 4 against the petitioner while he was
in prison under judicial custody on account of his being involved in Case Crime Nos. 169
and 170 of 2014. It has further been submitted that there was no material placed before the
detaining authority for recording his satisfaction about the release of the petitioner from the
jail in near future. In paragraph 11 of the grounds of detention it has been mentioned that the
petitioner who was confined in district jail, Varanasi was making continuous efforts for
obtaining bail and there was strong possibility of the petitioner being released on bail and
upon being release on bail, there was all likelihood of the petitioner indulging in activities
which would disturb the public order. Advancing his submissions further, learned counsel
for the petitioner submitted that of the two cases namely Case Crime No. 169 and 170 of
2014 which relate to the same incident which had taken place on 9.11.2014 on account of
which the petitioner was languishing in District Jail, Varanasi, according to paragraph 7 of
the grounds of detention, the petitioner had been granted bail by the Sessions Judge,
Chandauli vide order dated 20.3.2015 in Case Crime No. 169 of 2014 but the petitioner
could not be released on bail on account of his failure to furnish sureties. As far as Case
Crime No. 170 of 2014 is concerned, the petitioner had been granted bail in the aforesaid
case also vide order dated 24.4.2015 passed by this Court in Criminal Misc. Bail
Application No. 13877 of 2015, i. e. before passing of the impugned detention order by the
respondent no. 3 on 28.4.2015 but the aforesaid fact does not find any mention in the
grounds of detention and there being no material brought before the detaining authority,
even remotely suggesting that the petitioner had managed to arrange sureties which would
enable him to secure his release on bail and hence it is apparent that no material was placed
before the detaining authority by sponsoring authority that recording his satisfaction about
the real possibility of the release of the petitioner from the jail in near future. Learned
counsel for the petitioner has also submitted that the bald observation of the detaining
authority that there is likelihood of the petitioner being released on bail and on his being
released on bail, he would again indulge in similar activities disturbing the public peace and
order and keeping the petitioner in captivity, is contrary to the catena of decisions of this
Court and Hon'ble Supreme Court and also in contravention of fundamental rights enshrined
under Article 21 of the Constitution of India. The petitioner was granted bail in Case Crime
No. 169 of 2014 on 20.3.2015 but due to non-availability of sureties, he was not released,
hence the subjective satisfaction of the detaining authority was irrational, without
application of mind and on extraneous considerations.

8. Besides the incident which was made the basis for invoking the provisions of the
National Security Act had taken place on 9.11.2014, while the order of detention was passed
by the respondent no. 4 on 28.4.2015. The inordinate and unexplained intervening delay of
more than six months had snapped the live link, if any, with the incident and passing of the
impugned detention order.

9. Per contra, Sri Syed Ali Murtaza, learned A. G. A. Representing respondent nos. 1, 3
and 4 submitted that the grounds taken by the petitioner have no legs to stand. There is no
708 INDIAN LAW REPORTS ALLAHABAD SERIES
illegality or irregularity in the order of detention, which has been impugned in this writ
petition.

10. Sri Murtaza has also submitted that not only the petitioner was named in the F. I. R.
on the basis of which Case Crime No. 169 of 2014 and Case Crime No. 170 of 2014 were
registered at P. S.-Dhanapur, district-Chandauli, his complicity in the commission of the
crime which was subject matter of aforesaid Case Crimes was fully established from the
statements of the injured eye-witnesses (police personnel) recorded during investigation and
their injury reports. After the incident the guardians of the students who were in school,
could not reach the schools of their children to bring them back to home. The incident had
totally disturbed the public order. The news of the occurrence was published in several
newspapers which engaged the attention of those persons who were not present on the spot
causing terror and anger in their minds. He further submitted that the detaining authority
upon being apprised by the sponsoring authority that the petitioner had moved bail
application for his release before the Sessions Judge and there was strong possibility of the
petitioner being released on bail and that upon his release the petitioner shall again indulge
in activities prejudicial to the public order, hence to prevent such activity in future, the
detaining authority passed the detention order against the petitioner.

11. Advancing his submission in this regard further, Sri Murtaza has also submitted that
even where a detenue has not moved any bail application, the detaining authority can record
its subjective satisfaction that there was likelihood of detenue coming out of jail.

12. Sri Murtaza also submitted that it is true that the petitioner had already been granted
bail by the Sessions Judge in Case Crime No. 170 of 2014 on 24.4.2014 before passing the
impugned order but the aforesaid fact does not find mention in the impugned order, but the
said omission shall not vitiate the impugned detention order in view of the fact that the
impugned order was passed by the respondent no. 4 on 28.4.2015 pursuant to the report of
the sponsoring authority, S. P., Chandauli, which is dated 10.4.2015, which itself is based on
the report of the S. O., Dhanapur dated 5.4.2015 and since both the reports were prepared
before the bail order dated 24.4.2015 was passed, hence it was quite natural for the aforesaid
fact to be conspicuous by its absence in the impugned order of detention. The failure of the
sponsoring authority to bring to the notice of the detaining authority that the petitioner had
been acquitted / enlarged on bail in Case Crime No. 4 of 1996, 66 of 1997, Case Crime No.
41 of 2014 and Case Crime No. 57 of 2015 and to bring the necessary documents pertaining
to the aforesaid cases to the knowledge of the detaining authority would not in any way
vitiate the impugned detention order or the subjective satisfaction of the detaining authority
recorded in the impugned order as the entire relevant material was placed before the
detaining authority.

13. Sri Murtaza lastly submitted that the subjective satisfaction recorded in the
impugned order which is based upon pertinent material is not amenable to judicial scrutiny
and the impugned order which does not suffer from any illegality or irregularity, does not
call for any interference by this Court.
3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
709

14. Sri N. D. Rai, learned counsel appearing for the Union of India has adopted the
submissions made by learned A. G. A.

15. We have heard learned counsel for the parties and perused the material brought on
record as well as the law reports cited by the learned counsel for the parties in support of
their respective submissions.

16. The Apex Court in the case of Pebam Ningol Mikoi Devi Vs. State of Manipur
and others reported in (2010) 9 Supreme Court Cases 618 has examined the scope of
Judicial review of the subjective satisfaction of detaining authority. Paragraph 21 of its
verdict rendered in the aforesaid case, which is relevant for our purpose is being reproduced
herein below"

"21. To decide the correctness or otherwise of the detention order, two issues of
importance arise before this Court. The first is, regarding the documents and material on
which reliance was placed by the detaining Authority in passing the detention order.
Secondly, with those materials, the detaining authority was justified in arriving at a finding
that the detenu should be detained under the National Security Act without any trial. In
matters of this nature, this Court normally will not go into the correctness of the decision as
such but will only look into decision making process. Judicial review, it may be noted, is not
an appeal from a decision but review of the manner in which the decision was made. The
purpose of review is to ensure that the individual receives a fair treatment."

17. In Fazal Ghosi v. State of Uttar Pradesh, (1987) 3 SCC 502, this Court observed
that: "The District Magistrate, it is true, has stated that the detention of the detenus was
effected because he was satisfied that it was necessary to prevent them from acting
prejudicially to the maintenance of public order, but there is no reference to any material in
support of that satisfaction. We are aware that the satisfaction of the District Magistrate is
subjective in nature, but even subjective satisfaction must be based upon some pertinent
material. We are concerned here not with the sufficiency of that material but with the
existence of any relevant material at all." (emphasis supplied) (Para 3).

18. In Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC 556, the Apex
Court opined :- "Preventive detention is a serious inroad into the freedom of individuals.
Reasons, purposes and the manner of such detention must, therefore, be subject to closest
scrutiny and examination by the courts." (emphasis supplied) (Para 5).
The Court further added:

"...there must be conduct relevant to the formation of the satisfaction having
reasonable nexus with the action of the petitioner which are prejudicial to the maintenance
of public order. Existence of materials relevant to the formation of the satisfaction and
having rational nexus to the formation of the satisfaction that because of certain conduct "it
is necessary" to make an order "detaining" such person, are subject to judicial review."
(emphasis supplied) (Para 5).
710 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Apex Court held: In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, the

"...the grounds supplied operate as an objective test for determining the question
whether a nexus reasonably exists between grounds of detention and the detention order or
whether some infirmities had crept in." (emphasis supplied) (Para 9).

20. In State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, the Apex Court observed
that:

"...what is material and mandatory is the communication of the grounds of
detention to the detenu together with documents in support of subjective satisfaction reached
by the detaining authority." (emphasis supplied) (Para 8).

21. The legal position what emerges from these rulings is that, there must be a
reasonable basis for the detention order, and there must be material to support the same. The
Court is entitled to scrutinize the material relied upon by the Authority in coming to its
conclusion, and accordingly determine if there is an objective basis for the subjective
satisfaction. The subjective satisfaction must be two fold. The detaining authority must be
satisfied that the person to be detained is likely to act in any manner prejudicial to the
security of the State or from acting in any manner prejudicial to the maintenance of the
public order and the authority must be further satisfied that it is necessary to detain the said
person in order to prevent from so acting.

22. In order to determine the validity of the impugned detention order in the light of the
principles laid down in the aforesaid decisions, it will be necessary to examine the materials
relied by the detaining authority while passing the impugned detention order. The
documents relied upon by the District Magistrate mentioned in the grounds of detention are
:-

सूंिग्न-पुकिस अध़ीक्षक, चूंदौि़ी की आख्या कदनाूंककत 10.4.15 र् थानाध्यक्ष धानापुर की आख्या कदनाूंककत
5.4.15 मय सूंिग्नक-

1. थाना धानापुर की छकतग्रजत सरकाऱी गाड़ी सूं० यू0प़ी067 ज़ी00164 की िोटो।
2. घटना से सम्बकन्धत अकभयोंगो की प्रथम सूचना ररपोटव की टूंककत शुदा प्रकत।
3. रो०आम में अकभयोग की कायम़ी र् बाहर से आये अकतररत पुकिस बि की रर्ानग़ी की नकि रपट की टूंककत प्रकत।
4. घटना से सम्बकन्धत समाचार की समाचार पत्रों में प्रकाकशत श़ीर्वको की प्रकतयाूँ।
5. पुकिस बि की रर्ानग़ी/र्ापस़ी की रो०आम की नकि रपटें टूंककत शुदा।
6. र्ाद़ी के बयान की अूंककत प्रकत।
7. िदव के गर्ाहन के बयानों की टूंककत प्रकतयाूँ।
8. घटना में घायि पुकिस ककमवयों के इूंजऱी ररपोटव की प्रकतयाूँ।
9. घटना के दौरान छकतग्रजत हुए र्ाहन की याकन्त्रक पऱीक्षण से सम्बकन्धत ररपोटव।
10. बयान अकभयुत डब्िू राय उिव कदि़ीप राय पुत्र महेन्र राय कनर्ास़ी कन्दर्ा थाना कन्दर्ा जनपद चन्दौि़ी।
11. जनता के जर्तूंत्र व्यकतयों का सूंयुत बयान।
12. अकभयोगों से सम्बकन्धत कैश डायररयों एर्ूं तमाम़ी अन्य प्रपत्रों की प्रमाकणत प्रकतयाूँ।
3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
711
13. ग्राम कर्ई पहाड़पुर के कनर्ाकसयों के कर्रूद्ध पूर्व में गोर्ूंश तजकऱी एर्ूं बल्र्ा आकद से पूंज़ीकृत अकभयोगों का कर्र्रण।
14. अकभयुत डब्िू राय उिव कदि़ीप राय के द्वारा मानऩीय उच्च न्यायािय इिाहाबाद में जमानत हेतु प्रेकर्त ककये गये प्राथवना पत्र एर्ूं उस पर
प्रेकर्त आख्या की प्रकतयाूँ।
15. सह अकभयुतों के द्वारा मा० न्यायािय में कदये गये प्रा० पत्रों की प्रकतयाूँ जो कक कनरजत कर कदये गये।

23. We have very carefully scanned the grounds of detention and documents relied
upon by the detaining authority while passing the impugned order of detention. The original
record of this case was produced by the learned A. G. A. before us at the time of hearing of
this writ petition, and in our considered opinion the relevant material which could have been
material to the scope, purpose and object of the National Security Act, was withheld by the
sponsoring authority or the detaining authority and which may have moulded the belief /
opinion/satisfaction of the detaining authority and persuaded it not to pass the impugned
order of detention against the petitioner, namely the documents relating to Case Crime Nos.
4 of 1996 and 66 of 1997, in which the petitioner was acquitted, Case Crime Nos. 41 of
2014 and Case Crime No. 57 of 2015 in which the petitioner had been granted bail and the
order dated 24.4.2015 passed by this Court by which the petitioner had been granted bail
Case Crime No. 170 of 2014. These documents in our opinion, constituted relevant material
for the purpose of recording the satisfaction whether it was imperative to pass an order of
prevention detention by him in the exercise of powers conferred under Section-3 (ii) of the
National Security Act against the petitioner or not ?

24. In view of the above, the subjective satisfaction recorded by the respondent no. 4 in
the impugned order in our opinion, is vitiated on account of withholding of pertinent and
relevant material by sponsoring authority from the detaining authority.

25. The submission advanced by learned A. G. A. that the subjective satisfaction
recorded by the detaining authority in the order of detention is immune from judicial
scrutiny, has absolutely no merit.

26. We have very carefully gone through the law repots relied upon by learned A. G. A.
in support of his aforesaid contention namely, AIR (38) 1951 SC 174; Tarapada De and
others Versus The State of West Bengal, AIR 1975 SC 638; Tulshi Rabidas Versus The
State of West Bengal, AIR 1984 SC 43; D. M. Nowgong and another Versus Sharat
Modoi, 2013 (4) SCC 531; Baby Devassy Chully alias Bobby Versus Union of India, 2012
(4) SCC 699; Subramanian Versus State of Tamilnadu and another, but in none of the
aforesaid authorities it has been laid down that the subjective satisfaction of the detaining
authority is not amenable to judicial scrutiny. The exceptions have been carved out and if
the case is covered by the exceptions, then the Courts can examine whether the subjective
satisfaction is based upon relevant material in the given case.

27. We now come to the next issue involved in this case i. e. Whether the incident
which formed the basis for passing the order of preventive detention against the petitioner
was a simple case of law and order or an incident which disturbed public order.
712 INDIAN LAW REPORTS ALLAHABAD SERIES

28. What is public order has been explained by Hon'ble Apex Court in paras 7 to 15 in
the case of State of U.P. and another Vs. Sanjai Pratap Gupta @ Pappu and others, (2004)
8 SCC 591, which is quoted here as under:-

"The distinction between the areas of 'law and order' and 'public order' is one
of the degree and extent of the reach of the act in question on society. It is the potentiality
of the act to disturb the even tempo of life of the community which makes it prejudicial to
the maintenance of the public order. If a contravention in its effect is confined only to a
few individuals directly involved as distinct from a wide spectrum of public, it could raise
problem of law and order only. It is the length, magnitude and intensity of the terror wave
unleashed by a particular eruption of disorder that helps to distinguish it as an act
affecting 'public order' from that concerning 'law and order'. The question to ask 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
tranquility of the society undisturbed" This question has to be faced in every case on its
facts.

"Public order" is what the French call 'ordre 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 disturbance of the public order or does it
affect merely an individual leaving the tranquility of the society undisturbed (See Kanu
Biswas v. State of West Bengal (AIR 1972 SC 1656).

29. The apex Court in para 15 of its judgement rendered in Subramaniyam Versus
State of Tamilnadu reported in 2012 (4) SCC 699 has observed as hereinunder:

"Public order is the even tempo of the life of the community taking the country as
a whole or even as specified locality"

30. Judging in the background of the settled law on the issue in the light of the grounds
of detention, we find that the detaining authority in the grounds of detention has stated that
on being asked by the police personnel who were chasing him in a government vehicle to
stop the pickup, which he was driving, he banged his vehicle against the police vehicle
repeatedly causing injuries not only to its incumbents but also damaging the vehicle. The
detaining authority has further referred in the grounds of detention that upon his exhorting
that the police men were taking away his vehicle and the cattle forcibly, about 70-80
villagers armed with lathis, attacked the police force and indulged in stone pelting as a result
of which, several policemen received injuries. The shopkeepers of the area pulled down
their shutters while members of the general public hid themselves in their houses. The
guardians could not reach their wards' schools to bring them back home. There was
disruption of the normal flow of traffic also.

31. Thus in view of the above, it cannot be said that no public order was involved in the
instant case and it was only a case relating to law and order.
3 All. Dablu Rai Alias Dilip Rai Vs State Of U.P. & Ors.
713

32. Now, coming to the last ground of attack on the impugned order that there was no
material before the detaining authority for recording his satisfaction that there was strong
possibility of the petitioner coming out of jail and on coming out of the jail, he would again
indulge in activity disturbing public peace and order, we find that the detention order had
been passed by the detaining authority so as to highlight the incident, which had allegedly
taken place on 9.11.2014, the petitioner has been shown to be accused in two criminal cases
namely Case Crime No. 169 and 170 of 2014, which relate to the offences under the
Prevention of Cows Slaughter Act and Prevention of Cruelty to Animals Act, Indian Penal
Code, Criminal Laws Amendment Act and Prevention of Damages to Public Property Act,
for which he will be tried by criminal court on the basis of the legal evidence justifying his
complicity but the captivity of the petitioner merely on the so called subjective satisfaction
that he will be soon released on bail and upon being enlarged on bail indulge in activity
disturbing public peace and tranquility, which is not warranted from any material on record,
in our view would constitute an infraction of the valuable fundamental right of the petitioner
enshrined under Article 22 (5) of the Constitution of India. The onus lies upon the
prosecution to corroborate the charges against the petitioner during the course of trial and
the trial Court is fully competent to award appropriate punishment on the proving of the
accusations. The object of detention is not to punish a person but to prevent him from
indulging in activities detrimental to public order, public peace and tranquility. From the
perusal of the impugned order it transpires that the detaining authority has merely recorded
therein that there was strong possibility of the petitioner being released on bail and on the
mere apprehension of the petitioner being released on bail, the detaining authority has
further recorded therein that upon his release, he would again indulge in similar activities,
whereas the correct fact is that the petitioner had already been granted bail in both the cases
namely, Case Crime No. 169 of 2014 and Case Crime no. 170 of 2014 on 20.3.2015 and
24.4.2015 respectively. The impugned order does not contain any recital whether sureties
were available to the petitioner when the order of detention was passed on 28.4.2015 or that
the petitioner had arranged sureties and there was every possibility that he will be released
on bail as he had managed to secure sureties.

33. The Apex Court has examined the legal impact of the failure of the detaining
authority to record in the order of the preventive detention passed with regard to a detenu
already imprisoned as a person in the judicial custody that there was real possibility of the
detenu being released on bail from the judicial custody and on being such release he will
again indulge in similar activities.

34. The Hon'ble Apex Court observed in the case of Haradhan Saha Versus State of
Bengal, (1975) 3 SCC 198; AIR 1975 S.C. 2151 in paragraph No. 35 that "where the
concerned person is actually in jail custody at the time when the order of detention is passed
against him, and is not likely to be released for a fair long time, it may be possible to
contend that there could be no satisfaction on the part of the detaining authority as to the
likelihood of such a person indulging in the activities which would jeopardised the security
of the State or the public order."
714 INDIAN LAW REPORTS ALLAHABAD SERIES

35. The Hon'ble Apex Court has laid down the principles as to when the such detention
order can be passed, In this regard, the leading case is reported in (1991) 1SCC 128,
Kamarunnissa Vs. Union of India and another; which has been followed in the case of
Veeramani Vs. State of Tamil Nadu; (2006) 2 SCC664, TV Sravanan alias SAR Prasana
Venkatachaariar Chaturvedi Vs.State through Secretary and another; JT 2003 (Suppl 2)
SC 503 Union of India Vs. Paul Manickam and another. It has been held by the Supreme
Court of India in paragraph 13 of Kamarunnisa case;-

" From the catena of decisions referred to above, it seems clear to us that even in
the case of a person in custody a detention order can validly be passed(1) if the authority
passing the order is aware of the fact that he is actually in custody; (2) if he has reason to
believe on the basis of reliable material placed before him(a) that there is real possibility of
his being released on bail, and(b) that on being so released he would in all probability
indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from
so doing. If the authority passes an order after recording his satisfaction in this behalf, such
an order can not be struck down on the ground that the proper course for the authority was
to oppose the bail and if bail is granted notwithstanding such opposition to question if
before a higher court."

The above mentioned conditions should be satisfied for the above valid detention
or against the person in custody, one of the condition is that there should be real possibility
of the person being released on bail."

36. Thus what follows is, that an order of detention passed in respect of a person under
judicial custody must satisfy the three conditions spelt out by the Apex Court in the case of
Kamarunnissa (supra) and one such essential condition is that authority passing the order of
detention in respect of a person in custody should have reason to believe on the basis of
reliable material placed before him that there is real possibility of his being released on bail.
In the present case, the respondent no. 4 / District Magistrate, Chandauli has failed to record
any such satisfaction in the impugned order.

37. The reliance placed by learned A. G. A. upon the judgement of the Apex Court
rendered in Criminal Appeal No. 2545 of 2014, arising out of SLP (Criminal) No. 4199
of 2013; The Secretary to government, Public (Law and Order-F) and another Versus
Nabila and another in support of his submission that even where a person against whom an
order of prevention detention is passed while he is in judicial custody on account of being
accused in a criminal case, has not moved any bail application, it will be justifiable for the
detaining authority to record its subjective satisfaction that there was likelihood of such
detenue being released on bail, in our opinion is totally mis- placed. In the case of Secretary
to Government, Public (Law and Order-F) (supra) the Apex Court was examining the
validity of an order passed by this Court whereby an order of preventive detention passed
under Section 3 (ii) of the National Security Act by the detaining authority was quashed by
this Court that on the ground that it was based upon a solitary incident. The Apex Court in
paragraph 18 of the aforesaid judgement has held that the impugned order passed by the
3 All. Anuradha @ Sweety & Ors. Vs State Of U.P. & Ors.
715
High Court quashing the order of detention on the ground that the same was based upon a
solitary incident, is erroneous in law.

38.