# Danish v. State of U.P. & Ors

- **Citation:** (2023) 11 ILRA 791
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Habeas Corpus Writ Petition No. 1051 of 2022
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/danish-v-state-of-u-p-ors-49412
- **Pages:** 12

## Headnote

A. Criminal Law -Constitution of India,1950 -
Indian Penal Code,1860-Sections 147, 148, 149,
298, 352, 324, 308 & 504 - Criminal Law
Amendment Act, 2013- Section 7 -The present
case is only a case of simply 'law and order' and
would not fall within the ambit of 'public order'-
The facts of the case that 2-3 boys after
consuming the snacks from a street vendor
going to home and were intercepted by few
hooligans of a particular community, who
allegedly assaulted them by sword, knife and
iron rod, but fact remains that all the injured
persons have sustained "simple injuries with a
haematoma"
over
the
head
of
injuredThereafter the action of the police came into
play whereby they have magnified the small
incident
into
manifold
using
all
sort
of
hyperboles and exaggerating the incident using
their horses of imagination. The deployment of
the police and the hours consumed by them
would not going to convert the tone, texture
and tenor of the case- no material on record to
arrive at the satisfaction that detenu is in jail
and his custody is imperative to prevent him
from any activity or eventuality recorded u/s
3(2) of National Security Act-No subjective
satisfaction while passing the detention order or
extension order was recorded by the District
Magistrate-The District Magistrate neither in the
order nor in his grounds of detention have
provided any cogent reason attracting the public
order- Detention period is not enumerated in
the detention order and the same has been
extended without there being any ground or
cogent reason- The satisfaction recorded by the
appropriate government regarding the detenu
is absolutely ill-founded and based on malicious
analysis of the facts-The impugned detention
order is being passed only to frustrate the order
of bail passed in favour of petitioner by the
learned Session Judge- Thus,The detention
order deserves to be revoked as State of U.P. as
well as Central Government have failed to
decide
quintessentially
the
representation
submitted by the detenu.(Para 1 to 24)

B. The breach of public order involves a degree
of disturbance and it affects upon the life of the
community in a locality which determines
whether the disturbance amounts only to breach
of law and order and not a public order. The
difference between two concepts is in only one
degree. An act affecting law and order may not
necessarily also affect the public order and an
act which might be prejudicial to public order
may not affect the security of the State. Public
order is synonymous with public safety and
tranquillity and it is the absence of any disorder
involving breaches of local significance in
contradiction to national upheavals, such as
revolution, civil strife, war, affecting the security
of the State. (Para 22)

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,960 of 40,855. This is a partial read: ask again with offset=39960 for what follows._

11 All. Danish Vs. State of U.P. & Ors.
791
----------
(2023) 11 ILRA 791
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Habeas Corpus Writ Petition No. 1051 of 2022

Danish ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uttam Kumar, Sri Nitin Sharma

Counsel for the Respondents:
G.A., A.S.G.I., Sri Alok Ranjan Mishra

A. Criminal Law -Constitution of India,1950 -
Indian Penal Code,1860-Sections 147, 148, 149,
298, 352, 324, 308 & 504 - Criminal Law
Amendment Act, 2013- Section 7 -The present
case is only a case of simply 'law and order' and
would not fall within the ambit of 'public order'-
The facts of the case that 2-3 boys after
consuming the snacks from a street vendor
going to home and were intercepted by few
hooligans of a particular community, who
allegedly assaulted them by sword, knife and
iron rod, but fact remains that all the injured
persons have sustained "simple injuries with a
haematoma"
over
the
head
of
injuredThereafter the action of the police came into
play whereby they have magnified the small
incident
into
manifold
using
all
sort
of
hyperboles and exaggerating the incident using
their horses of imagination. The deployment of
the police and the hours consumed by them
would not going to convert the tone, texture
and tenor of the case- no material on record to
arrive at the satisfaction that detenu is in jail
and his custody is imperative to prevent him
from any activity or eventuality recorded u/s
3(2) of National Security Act-No subjective
satisfaction while passing the detention order or
extension order was recorded by the District
Magistrate-The District Magistrate neither in the
order nor in his grounds of detention have
provided any cogent reason attracting the public
order- Detention period is not enumerated in
the detention order and the same has been
extended without there being any ground or
cogent reason- The satisfaction recorded by the
appropriate government regarding the detenu
is absolutely ill-founded and based on malicious
analysis of the facts-The impugned detention
order is being passed only to frustrate the order
of bail passed in favour of petitioner by the
learned Session Judge- Thus,The detention
order deserves to be revoked as State of U.P. as
well as Central Government have failed to
decide
quintessentially
the
representation
submitted by the detenu.(Para 1 to 24)

B. The breach of public order involves a degree
of disturbance and it affects upon the life of the
community in a locality which determines
whether the disturbance amounts only to breach
of law and order and not a public order. The
difference between two concepts is in only one
degree. An act affecting law and order may not
necessarily also affect the public order and an
act which might be prejudicial to public order
may not affect the security of the State. Public
order is synonymous with public safety and
tranquillity and it is the absence of any disorder
involving breaches of local significance in
contradiction to national upheavals, such as
revolution, civil strife, war, affecting the security
of the State. (Para 22)

The writ petition is allowed. (E-6)

List of Cases cited:

1. Subhash Bhandari Vs DM, Lko. (1987) 4 AIR
SCC 685

2. Ramveer Jatav Vs St. Of U.P. & ors. (1987)
AIR SC 63

3. Rekha Vs St. Of T.N. thru Secy to Govt.
(2011) 5 AIR SCC 244

4. Mrs. T. Devaki Vs Govt Of T.N. & ors. (1990)
AIR SC 1086

5. Dr. Ram Manohar Lohia Vs St. of Bih. & ors.
(1966) AIR SC 740
792 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Mahboob Vs UOI & 5 Ors (2019) 7ADJ 650
:HABC No.3895 of 2018 Kanu Biswas Vs St. of
W.B. (1972) 3 SCC 831

7. St. of U.P. & anr. Vs Sanjai Pratap Gupta @
Pappu & ors. (2004) 8 SCC 591

8. Rakesh Kumar Vs Superintt. of Jail,
Farrukhabad (2006) 9 ADJ 454 (All) (DB)

9. Sajid Vs St. of U.P. & ors. (2015) ACC 888

10. Lalit Gupta Vs St. of U.P. & ors. (2021) 5
ALJ 323

11. Ram Sewak Vs St. of U.P. & ors. in HABC
No.30758 of 2021

(Delivered by Hon'ble Rahul Chaturvedi, J.
 &
Hon'ble Mohd. Azhar Husain Idrisi, J.)

(1). Heard Shri Nitin Sharma, Shri
Uttam
Kumar,
learned
counsel
for
petitioner and Shri Ghanshyam Kumar,
learned A.G.A.-I for the State of U.P. as
well as Shri Alok Ranjan Mishra, learned
counsel for Union of India.

(2). Pleadings have been exchanged
between the parties and the matter is ripe
for final submission. Perused the records
and the written submissions advanced by
respective counsels in support of their
pleadings and arguments.

(3). By filing the instant Habeas
Corpus Writ Petition the petitioner is
invoking the powers of Article 226 of the
Constitution of India, with the prayer, to
issue a writ, order or direction in the nature
of Habeas Corpus directing the respondent
authorities to produce the detenu-petitioner
Danish son of Jameel Ahmad before this
Court so that he may be set at liberty
forthwith unless wanted in some other case.
In addition to this a writ, order or direction
in the nature of certiorari quashing the
Order
(No.05/J.A./N.S.A./2022)
dated
06.09.2022 (Annexure No.7 to the writ
petition)
passed
by
the
District
Magistrate/Restraining Authority, Kanpur
Nagar (respondent no.3) as approved by the
State Government and the Advisory Board,
which was later on extended from time to
time.

(4). Before appreciating the legal
submissions advanced by the respective
counsels, it is desirable to give a bird's eye
view to the factual aspects of the case:-

FACTUAL MATRIX :

(5). An F.I.R. was lodged by one
Pratham s/o Mohar Singh on 15.7.2022 at
22.41 hours for the incident said to have
taken place around 20.00 hours on the same
date, which was registered as Case Crime
No.342 of 2022, u/s 147, 148, 149, 298,
352, 324, 308, 504 I.P.C. and Section 7 of
Criminal Law Amendment Act, against as
many as 16 named persons, including the
petitioner Danish, and 50 other unknown
persons. The prosecution story mentioned
in the F.I.R. in brief is, that the informant
Pratham s/o Mohar Singh resident of
Mohalla
Pant
Nagar,
Police
Station
Bilhaur, Kanpur Nagar on 15.7.2022
around 08.00 in the evening, he along with
his brother Rahul after having snacks from
the roadside snack vendor, were coming
back to their home. When they reached
adjacent to Dr. Rahman's residence, on five
motorcycle Shadan s/o Naseem, Mohd.
Zaid s/o Mohd. Hasim resident of Rajiv
Nagar and Kasib Khan, Danish Khan,
Hasim Khan, Tamil Khan, Jahid Khan,
Kamil Khan, Daud Khan, Shahnawaj Khan,
Arbaz Khan, Sohel Khan, Babu Khan, Arif
Khan, Asif Khan s/o Tauhid Khan, Hasim
Qurashi s/o Ramzan and 50 unknown
11 All. Danish Vs. State of U.P. & Ors.
793
persons, raising religious slogans and filthy
abuses, assaulted the informant as well as
his brother by sword, knife and butt of
Tamancha.

In this criminal transaction, the
assailants
have
sliced
the
neck
of
informant's brother Rahul and caused
injuries to the informant. As a result of this
attack, the entire locality was gripped into a
severe panic and a charged atmosphere full
of turmoil and upheaval.

On this factual matrix, the F.I.R.
was got registered against 16 named and 50
unknown persons, whereby the petitioner
Danish
is
named
at
serial
no.4.
Interestingly, only the names of accused
persons have been mentioned without
giving their parentage or their respective
addresses.

(6). From the aforesaid, it is clear that
this F.I.R. came into existence in the month
of July, 2022. Needless to mention here
that in June, 2022 city of Kanpur and
Allahabad of the State of Uttar Pradesh
have witnessed a severe communal tension
on the eve of Nupur Sharma's statement. It
seems that the local police was extra
vigilant and they tried to give colour to
every minor scuffle as a result of
communal disharmony and tension. In this
process, the police have roped in 16 named
persons who all belonging to a particular
community, without naming their parentage
and their addresses. This explicitly shows a
typical 'modus operandi' of local police so
that they may teach a bitter lesson to a
particular community, argued by learned
counsel for petitioner.

(7). The petitioner was arrested on
20.7.2022 in connection with above case
crime number and was released on bail by
the learned District & Session Judge,
Ramabai Nagar, Kanpur Dehat while
allowing his Bail Application No.2127 of
2022 vide order dated 29.8.2022.

From the bail order, it is culled
out that the injured Rahul has sustained
only two injuries which are simple in
nature, whereas the informant Pratham has
received four injuries and yet another
injured Sandip has also sustained two
injuries on his person. According to
N.C.C.T. Scan report of injured Rahul,
there is haematoma found over his head.
Fact remains, that the medical reports of
Pratham, Rahul and Sandip indicates that
none of these injured have sustained any
life threatening injuries over their person.
In fact, there was scuffle between the two
groups which has been given colour to
communal tension and disharmony by the
police, and therefore, the petitioner was
granted bail by the learned Sessions Judge.

(8). In order to justify the conduct
local police, as a last resort, after getting a
green signal from the higher police
authorities, the In-charge Inspector, Police
Station
Bilhaur,
Kanpur
Outer
have
prepared an undated report addressed to
S.P. Kanpur Outer for initiating the
proceeding 3(2) of National Security Act,
1980. It is urged by learned counsel for
petitioner that a small incident of two
groups of course belonging to different
communities was magnified by manifolds
by local police and the In-charge Inspector
have prepared a detailed report mentioning
therein that "after holding a detailed
investigation" the police have submitted a
charge sheet against 12 named accused
persons, including the petitioner Danish u/s
147/148/149/298/352/
324/307/504/34
I.P.C. and Section 7 of Criminal Law
Amendment Act and submitted its report
794 INDIAN LAW REPORTS ALLAHABAD SERIES
on 30.8.2022 for initiating the proceedings
u/s 3(2) of National Security Act only
against Danish. We have perused this
report of the In-charge Inspector (annexed
as Annexure-3 to the petition). The salient
features of the said report is quoted herein
below :

"उक्त लोक व्यवस्था जछन्न-जिन्न करने वाली घटना
की िबर न्यूज च नलों में प्रसाररत होने से घटनास्थल तथा उसके
आसपास के क्षेत्रों में िय का माहौल प दा हो गया। आम जनता में
असुरक्षा की िावना प दा हो गयी। सामान्य जन-जीवन अस्त व्यस्त
हो गया। जनपद तथा प्रदेश स्तर पर इस साम्प्रदाजयक घटना की
जवजिन्न माध्यमों से चारो तरर् चचाष होने लगी। इस वीित्स घटना से
घटनास्थल के आस-पास के क्षेत्रों में आवागमन ठप्प हो गया तथा
सामान्य जन जीवन अस्त व्यस्त हो गया। घटनास्थल व आस-पास
के क्षेत्रों में लोक व्यवस्था पूरी तरह जछन्न-जिन्न हो गयी। जजसे
संिालने के जलए जनपद र्रूषिाबाद, इटावा, कन्नौज, कानपुर
कजमश्नरेट, कानपुर आउटर के जवजिन्न थाना क्षेत्रों से िारी पुजलस
बल त नात जकया गया। शासन-प्रशासन के कार्ी अथक प्रयास के
पश्चात आम जन-जीवन सामान्य हो पाया एवं लोक व्यवस्था
सामान्य हो पायी। जदनांक 16.07.2022 समय 10.18 बजे
तत्कालीन प्रिारी जनरीक्षक अरजवन्द जसंह जससौजदया द्वारा देिरेि
शाजन्त सुरक्षा व्यवस्था व रोकथाम जुमष जरायम के उपरांन्त रो०आम
में अंजकत जकया गया जक घटनास्थल पर पुजलस बल के साथ पहुंचा
तो अजियुक्त व उनके साथीगणों द्वारा काररत की गयी, घटना से
कस्बा जबल्हौर व आसपास की लोक व्यवस्था िंग होकर यातायात
व आवागमन बंद हो गया लोगों द्वारा अपने घर के दरवाजों को बंद
कर जलया गया। दुकानों के शटर आजद बंद होकर बाजार की लोक
व्यवस्था जछन्न जिन्न हो गयी तथा आवागमन यातायात बंद हो गया
जजसकी सूचना उच्चाजधकारीगण को दी गयी। जवजिन्न थानों एवं
जनपदों की पुजलस र्ोसष को लोक व्यवस्था को पुनैः सुचारू रूप से
बनाये रिने के जलये लगाया गया पुजलस बल को कस्बा के जवजिन्न
मोहल्लों सडकों, जतराहे, चौराहे, प्रजतष्ठान आजद स्थानों पर लगाया
गया। उपरोक्त िंग हुई लोक व्यवस्था को पुनैः सामान्य बनाये जाने
हेतु पुजलस महाजनरीक्षक कानपुर रेंज कानपुर, आयुक्त कानपुर रेंज
कानपुर जजलाजधकारी कानपुर, पुजलस अधीक्षक कानपुर आउटर,
अपर पुजलस अधीक्षक, क्षेत्राजधकारी जबल्हौर व अन्य क्षेत्राजधकारी
गण के सहयोग से करीब 11 घंटे में िंग हुई लोक व्यवस्था को
सामान्य जस्थजत में कराया गया। जवजिन्न स्थानों पर र््यूजटयां लगायीं
गयी। जजसका उल्लेि जदनांक 16/07/22 समय 10.18 बजे
रो०आम प्र०सं० 63 पर थाना जबल्हौर कानपुर आउटर में जकया
गया। संलग्नक सं०-03 रो०आम की प्रजत पेज सं०-52

घटनास्थल तथा उसके आस-पास के क्षेत्रों में लोक
व्यवस्था बहाली हेतु तथा वादी मुकदमा के घर, पंतनगर मोहल्ले,
आवागमन बहाली हेतु जदनांक 16.07.2022 से वतषमान तक
पुजलस बल लगाया गया, जजसका उल्लेि थाना जबल्हौर के रो०आम
जदनांक 15/07/2022 से वतषमान तक रो०आम में जकया गया ह ।
संलग्नक सं०-4 जवजिन्न जतजथयों की थाने की जी०र्ी० व अन्य
थानों की जी०र्ी० पेज सं०-53-250"

........................

"जववेचक द्वारा वादी मुकदमा प्रथम एवं चुटजहल
राहुल, प्रथम, संदीप, संजय का बयान जलया गया तथा चश्मदीद
साजक्षयों का बयान िी अंजकत जकया गया। वादी मुकदमा ने अपने
बयान में प्रथम सूचना ररपोटष का समथषन जकया। "

.......................

"चुटजहल राहुल ने अपने बयान में बताया जक साहब
जदनांक 15.07.2022 को म अपने िाई प्रथम व अपने जीजा
श्यामजीत उर्ष जशवजीत के साथ कस्बे में छुन्ना की दुकान पर जर्ंगर
जचप्स िाने गया था। जर्ंगर जचप्स िाकर लौटते समय र्ॉ० रहमान
वाली गली में कस्बे का दाजनश, ज द, शहनवाज, शादान के साथ
करीब 10-15 लोग थे जजनके हाथ में सररया, र्ंर्ा जलए हुए थे
मुझे देिकर कहने लगे जक यही राहुल ह इसको मारकर जगरा दो
आज कोई िी जहन्दू बचकर नहीं जायेगा और जबना कुछ पूछे जांचे
मेरे ऊपर हमला कर जदये तथा सररया, र्ंर्ा लात घूसों से मुझे मारते
रहे मैं बेहोश हो गया मुझे इसके बाद कोई जानकारी नहीं ह जब मुझे
होश आया तो म ने अपने आप को अस्पताल में पाया। साहब जो
देिा वहीं बताया मेरा अिी इलाज चल रहा ह म अिी पूरी तरह
ठीक नहीं ह ूँ, और मुझे अिी िी इन लोगों से िय व ितरा ह ।
साहब यही मेरा बयान ह । संलग्नक 09 पेज संख्या-420"

(9). The police reports, mainly relied
upon the local electronic and print media
reports whereby, various local news
channels and local newspapers have
published the news items making the small
incident between two groups as sensational
and exaggerating the same manifolds and
thereafter giving a colour of communal
11 All. Danish Vs. State of U.P. & Ors.
795
disharmony and communal tension. In the
said report, the In-charge Inspector has
quoted the headlines of newspapers 'Dainik
Jagaran', 'Hindustan', 'Amar Ujala', 'My
City Reporter' etc. to establish their case,
that this was a spark, which could have led
to a communal disharmony and tension in
the locality and the police have to struggle
a lot for eleven hours to calm down the
situation.

(10). Shri Nitin Sharma, learned
counsel for petitioner has drawn attention
of the Court to the injury report of injured
persons, indicating that all of them have
sustained simple injuries over their person
and except a small haematoma over the
head of injured Rahul, none of the injured
persons have sustained any grievous or life
threatening injury over their person, but the
local police as a matter of extra cautious
have tried to give a colour of communal
disharmony to an incident of minor
marpeet and scuffle between two groups. It
is further urged by learned counsel for
petitioner that this action on the part of the
police is an outcome of communal tension
in Kanpur Nagar on 3rd June, 2022 which
was erupted after the statement of Nupur
Sharma's statement. Thereafter, the local
police was extraordinarily on their toes and
bent upon to give colour to every small
situation/incident of law and order as a
disruption of 'Public Order'.

(11). The matter was referred to the
Circle Officer, Bilhaur, Kanpur Outer;
Additional S.P., Kanpur Outer and S.P.,
Kanpur Outer mentioning therein that
though the petitioner was admitted on bail
by the learned Sessions Judge, Kanpur
Dehat but remaining procedure is under the
pipeline and if he comes out from jail, he
would again indulge into such offence, and
therefore, his detention u/s 3 of the
National Security Act is desirable and
warranted. After receiving undated report,
by
In-charge
Inspector,
P.S.-Bilhaur,
Kanpur Nagar, the S.P., Kanpur Outer on
3.9.2022 has blindly dittoed and put his
seal of approval endorsing the proposed
action u/s 3 of the National Security Act
against the petitioner. On 3.9.2022 a letter
was addressed to the District Magistrate,
Kanpur Nagar, which, on the face of it
transpires to be a 'carbon copy' of undated
report given by the In-charge Inspector,
Police Station Bilhaur, Kanpur Outer.
There is complete non application of mind
and rather this is a reiteration of exact
words and phrases used by him. It is
contended
by
learned
counsel
for
petitioner, that this is not the spirit of the
law to blindly reiterate the report of a
subordinate.

(12). Soon after receipt of the
communication from the S.P., Kanpur
Outer, on 6.9.2022 the District Magistrate,
Kanpur Nagar without wasting time blindly
relying upon it, have passed an order u/s
3(3) of the National Security Act, which
reads thus :

"चूूँजक जनपद कानपुर नगर के जजला मजजस्रेट के
रूप में मेरा समाधान हो गया ह जक श्री दाजनश पुत्र जमील अहमद
जनवासी राजीव नगर कस्बा व थाना जबल्हौर जनपद कानपुर नगर उम्र
30 वर्ष को जकसी िी ऐसी रीजत में कायषवाही करने से रोकने के
उद्देश्य से जो जक लोक व्यवस्था के अनुरक्षण के प्रजतकूल ह , ऐसा
आदेश देना आवश्यक ह ।

अतएव राष्रीय सुरक्षा अजधजनयम 1980
(अजध०सं० 65/1980) की धारा 3 की उपधारा (3) द्वारा प्रदि
अजधकारों का प्रयोग करके मैं एतद द्वारा यह जनदेश देता ह ूँ जक श्री
दाजनश पुत्र जमील अहमद जनवासी राजीव नगर कस्बा व थाना
जबल्हौर जनपद कानपुर नगर उम्र 30 वर्ष को उक्त अजधजनयम की
धारा 3 की उपधारा (2) के अधीन जजला कारागार कानपुर देहात में
साधारण श्रेणी के बंदी के रूप में उक्त कारागार के अधीक्षक की
अजिरक्षा में जनरूद्ध जकया जाये।
796 INDIAN LAW REPORTS ALLAHABAD SERIES

आज जदनांक 06-9-22 को मेरे हस्ताक्षर एवं मुहर
से यह आदेश जारी जकया गया।

संख्याैः 05/जे०ए०/एन०एस०ए०/2022

जदनांकैः 06-09-2022

(जवशाि जी)

जजला मजजस्रेट/जनरोधक प्राजधकारी,

कानपुर नगर"

(13). The Court lays its hands to the
order passed by the District Magistrate
dated 6.9.2022 accompanied by a detailed
order regarding the satisfaction of the
District Magistrate/Detaining Authority, in
which he mentioned that :

"मैंने जनरूद्धी के औजचत्य के सम्बन्ध में प्रिारी
जनरीक्षक जबल्हौर के प्रस्ताव व पुजलस अधीक्षक कानपुर आउटर,
अपर पुजलस अधीक्षक कानपुर आउटर क्षेत्राजधकारी, जबल्हौर कानपुर
आउटर की संस्तुजतयों से युक्त आख्या का पूणष मनोयोग सजहत
गंिीरता से स्वतन्त्र एवं, न्याजयक मजस्तष्क का प्रयोग करते हुए
अध्ययन, पररशीलन एवं मनन जकया। संलग्नक संख्या (i), ए,बी,सी
पेज सं० 01-19"

(14). Contention raised by learned
counsel for petitioner, is that from the
perusal of aforesaid, apparently it has come
out that the District Magistate while
passing the alleged detention order under
the National Security Act has never applied
his own independent mind and discretion
which he ought to have, but fact remains,
that while passing detailed order not a
single word has been added by the District
Magistrate in it, rather it is a carbon copy
of earlier orders by the local police
officials.

Secondly, it has contended by
learned counsel for petitioner that as per
Section 13 of the National Security Act the
maximum period for which a person may
be detained pursuant to any detention order,
which has to confirm u/s 12 of the National
Security Act, shall be of 12 months from
the date of detention. Thus, on the strength
of aforesaid mandatory provision, it is
urged by the learned counsel for petitioner
that the order must spell out the proposed
period of detention in it, but in absence of
this, the entire order of detention gets
vitiated and the petitioner may be set at
liberty on this score alone.

It is also contended by learned
counsel for petitioner that the petitioner
Danish had sent a detailed representation
against the detention order u/s 3(3) of
National Security Act dated 6.9.2022,
annexed as Annexure-8 to the petition, on
16.9.2022, but it appears that same was
also set at naught by the higher executive
authorities.

(15). It is contended by learned
counsel for petitioner that while passing the
detention order, the petitioner was branded
as an extremely arrogant, anti-social,
provocative
and
dangerous
to
the
communal harmony and his free roaming
could be detrimental to society at large and
there is eminent threat to adversely affect
the public order. Learned counsel for
petitioner has refuted the unfounded
allegation of branding the petitioner as
threat to the society at large. It is urged by
learned counsel for petitioner that this is
nothing but a handi-work of local police
who wanted to show his 'good work' by
falsely implicating the petitioner applying
the provisions of draconian law. It is
further urged by learned counsel for
petitioner that at the best, it could be said
that it is a case of 'law and order' and by no
stretch of imagination, it could be said that
the petitioner was never involved in any
11 All. Danish Vs. State of U.P. & Ors.
797
activity which could be said to be
detrimental to the 'public order'. There is
no justifiable or bona fide reason or ground
for detention of poor petitioner under
Section 3(2) of the National Security Act
and there are no ingredients to attract this
serious provision of the National Security
Act in the present facts of case.

(16). It is submitted by learned
counsel for petitioner that petitioner is
completely an innocent young lad, having
not a single criminal case to his credit,
despite that, he has been branded as
potential threat to the society in a
colourable exercise of power vested in the
local
police.
The
local
police
mischievously magnified the small case to
manifolds and after using the hyperboles
and on that basis the police have kept the
petitioner for an unspecified time into jail.
There are number of procedural fallacies,
according to petitioner's counsel, which
touches the core issue of detention.
Petitioner is a young lad of 30 years and
has engaged himself in two-wheeler
mechanic job. As per the allegations made
in the F.I.R. that the only sin of petitioner is
that he is Muslim by community and the
local police horrified by the previous
month's
incident
at
Kanpur,
rather
misusing their powers booked the innocent
persons by applying the serious provisions
of National Security Act.

(17). Shri Alok Ranjan Mishra,
learned counsel for Union of India has filed
his counter affidavit as well as written
submission. The Court has an occasion to
peruse the counter affidavit sworn by Ms.
Meena Sharma, Under Secretary, Ministry
of Home, Union of India, New Delhi. In the
counter affidavit, learned counsel for Union
of India has tried to justify the action of the
police by making a submission that the
action
was
necessary to
detain the
petitioner under the National Security Act
in order to maintain public peace and order
so that the public tranquillity shall be
maintained at all cost. Learned counsel for
Union of India also submitted that the
District Magistrate too has recorded his
satisfaction while passing final order of
detention u/s 3(3) of the National Security
Act against the petitioner. From the various
reports made by the police, it is apparent
that the general tempo of life was under
serious threat and the people at large in the
area was horrified by any untoward
incident, therefore, huge number of police
personnel were deployed by summoning
them from adjacent districts to maintain
peace and tranquillity. The Police after
making great deal and effort and after
struggling eleven hours time, then only,
any
how
they
have
succeeded
in
establishing the peace and tranquillity in
the area. Not only this, the police was
remained there on the spot for a long
period, so as to ensure the public peace and
tranquillity. The District Magistrate while
passing the order have focused mainly on
the credentials of petitioner that he is a man
of criminal mentality and there is every
likelihood that he would again indulge into
same type of criminal offensive, if he is set
at liberty and would endanger the "public
order". It is not a case of "law and order"
but where equilibrium of the society got
disturbed and the tempo of life came under
the immense threat, then in order to bring
the normality in the life, it is desirable that
such person shall be booked as a preventive
measure. The pleading that petitioner has
got no criminal antecedents is irrelevant
considering the impact of alleged crime on
the tempo of life in the locality. In this
regard, to buttress his contention, learned
counsel for Union of India has cited
number of authorities namely, (i) Kanu
798 INDIAN LAW REPORTS ALLAHABAD SERIES
Biswas vs. The State of West Bengal, 1972
3 SCC 831; (ii) State of U.P. and another
vs. Sanjai Pratap Gupta @ Pappu and
others, (2004) 8 SCC 591; (iii) Rakesh
Kumar
vs.
Superintendent
of
Jail,
Farrukhabad, 2006 (9) ADJ 454 (All)
(DB); Sajid vs. State of U.P. and others,
(2015) ACC 888; Lalit Gupta vs. State of
U.P. and others; (2021) 5 ALJ 323 and
Ram Sewak vs. State of U.P. and others in
Habeas Corpus Writ Petition No.30758 of
2021 decided on 14.9.2022.

(18). Learned A.G.A. too has filed
counter affidavit on behalf of respondent
no.1, 3 and 4, sworn by Shri Sabhapati
Bind, Under Secretary, Home (Confidential
Department),
U.P.
Civil
Secretariat,
Lucknow; Vishak Ganapathy Iyar, District
Magistrate, Kanpur Nagar and Shashikant
Singh, Senior Superintend, Central Jail,
Naini,
Prayagraj.
In
their
respective
affidavits, annexing the original orders of
Advisory Board dated 21st October, 2022,
confirming the order of detention by the
District Magistrate dated 6.9.2022 and
thereafter in the counter affidavit filed by
the District Magistrate, he too tried to
justify the action of his predecessor, in
which he has admitted that the sponsoring
authority In-charge Inspector, P.S. Bilhaur,
Kanpur Outer has given an undated report
to the S.P. Kanpur Outer through the Circle
Officer recommending to initiate the
proceeding against the petitioner under the
National Security Act. The petitioner is a
chargesheeted accused in Case Crime
No.342 of 2022 and while he was in jail he
also extended threats to the informant of
the case, for which a Case Crime No.421 of
2022 u/s 504, 506 I.P.C. was registered.
According to the District Magistrate,
Kanpur Nagar the petitioner is a potential
threat to the peace and tranquillity of the
society at large and thus it is desirable to
keep him in jail for the period prescribed.

LEGAL DISCUSSION :

(19). We have heard the submissions
advanced by learned counsel for petitioner
as well as learned counsel for respondents
with rapt attention. Shri Nitin Sharma,
learned counsel for petitioner in sum and
substance has raised the following points
for consideration :

(i) The instant case relates to 'law
and order' and not 'public order'.

(ii) There is no material on record
to arrive at the satisfaction that detenu
Danish is in jail and his custody is
imperative to prevent him from any activity
or eventuality recorded u/s 3(2) of National
Security Act.

(iii) No subjective satisfaction
while passing the detention order or
extension order was recorded by the
District Magistrate. The District Magistrate
neither in the order nor in his grounds of
detention have provided any cogent reason
attracting the public order.

(iv) Detention period is not
enumerated in the detention order and the
same has been extended without there
being any ground or cogent reason. No
ground or reasoning attached to the
detention order.

(v) The satisfaction recorded by
the appropriate government regarding the
detenu Danish is absolutely ill-founded and
based on malicious analysis of the facts.

(vi) The impugned detention
order is being passed only to frustrate the
11 All. Danish Vs. State of U.P. & Ors.
799
order of bail passed in favour of petitioner
by the learned Sessions Judge, Ramabai
Nagar, Kanpur Dehat dated 29.8.2022.

(vii) The detention order of
petitioner Danish deserves to be revoked as
State
of
U.P.
as
well
as
Central
Government
have
failed
to
decide
quintessentially
the
representation
submitted by the detenu.

(20). Learned counsel for petitioner
while drawing attention of the Court to the
legal authorities has relied upon the
judgment of this Court in Mahboob vs
Union of India and 5 others in Habeas
Corpus Writ Petition No.3895 of 2018
dated 5.4.2019 reported in 2019 (7) ADJ
650. While referring to the established
pronouncement of Hon'ble Apex Court, it
is urged by learned counsel that the
subjective satisfaction is imperative and to
be recorded by the detaining authority
keeping in view the legal parameters as
established by consistent law in this regard
which has been completely overlooked. In
fact the present case is of 'law and order'
and no iota of 'public order' is involved in
it. The detaining authority has simply
dittoed
the
recommendation
of
the
sponsoring
authority
without
any
application of mind and he has blindly put
a seal of approval over it.

(21). Learned counsel for petitioner
has laid much emphasis to the effect that
the present case is only a case of simply
'law and order' and would not fall within
the ambit of 'public order'. The facts of the
case that 2-3 boys after consuming the
snacks from a street vendor going to home
and were intercepted by few hooligans of a
particular
community,
who
allegedly
assaulted them by sword, knife and iron
rod, but fact remains that all the injured
persons have sustained "simple injuries
with a haematoma" over the head of injured
Rahul.

Thereafter the action of the police
came into play whereby they have
magnified the small incident into manifold
using
all
sort
of
hyperboles
and
exaggerating the incident using their horses
of imagination. The deployment of the
police and the hours consumed by them
would not going to convert the tone, texture
and tenor of the case.

In fact this is not a documentary
factum that the police were summoned
from nearby police stations/districts and
they were deployed for eleven hours. This
is not the litmus test for any incident that
the police was deployed for eleven hours,
nor its publicity in newspapers would
determine the nature and gravity of offence.

(22). In the case of Mahboob vs
Union of India (supra) the Division Bench
of this Court has throws much light on the
issue at hand while referring the authorities
of Hon'ble Apex Court, therefore, at this
juncture it would be apt to quote the
relevant portion of this judgment, as under :

"(11). Much has been contended
by the counsel for the petitioner to the
effect that the present is a case of only
simple "law and order" and will not fall
within the category of "public order". The
questions of "law and order" and "public
order" have been engaging the attention of
the Court since time immemorial. A perusal
of relevant case law in this regard would
show
that
"public
order"
indicates
something more than "law and order". The
breach of public order involves a degree of
disturbance and it affects upon the life of
the
community
in
a
locality
which
800 INDIAN LAW REPORTS ALLAHABAD SERIES
determines
whether
the
disturbance
amounts only to breach of law and order
and not a public order. The difference
between two concepts is in only one degree.
An act affecting law and order may not
necessarily also affect the public order and
an act which might be prejudicial to public
order may not affect the security of the
State. Public order is synonymous with
public safety and tranquillity and it is the
absence of any disorder involving breaches
of local significance in contradiction to
national upheavals, such as revolution,
civil strife, war, affecting the security of the
State.

(12). In Dr. Ram Manohar Lohia
vs State of Bihar and others, 1966 AIR
740, it has been held by the Apex Court
that any contravention of law always
affects order but before it can be said to
affect public order, it must affect the
community or the public at large. It was
observed that offences against "law and
order", "public order" and "security of the
State" are demarcated on the basis of the
gravity. It is the degree of disturbance and
its affect upon the life of the community in a
locality which determines whether the
disturbance amounts only to breach of law
and order though in the grounds of
detention, the detaining authority had
stated that by committing this offence in
public, the detenu created a sense of alarm,
scare and a feeling of insecurity in the
minds of the public of the area and thereby
acted in a manner prejudicial to the
maintenance of public order which affected
the even tempo of life of the community, but
in fact it was a solitary case of robbery, it
was held that mere citation of these words
in the order of detention is more in the
nature of a ritual rather than with any
significance to the content of the matter.
Thus a solitary instance of robbery as
mentioned in the grounds of detention is
not relevant for sustaining the order of
detention for the purpose of preventing the
detenu from
acting in
any
manner
prejudicial to the maintenance of public
order.

(13). The determining test in all
such cases is "the act leads to disturbance
of the current of 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
society
undisturbed." The expression "law and
order", "public order" and "security of the
State" are distinct concepts though always
not separate. Every public order if
disturbed, must lead to public disorder but
every breach of the peace does not lead to
public disorder. For example, when two
drunkards quarrel and fight there is
disorder but not public disorder. They can
be dealt with under the powers to maintain
law and order but cannot be detained on
the ground that they were disturbing public
order. Disorder is no doubt prevented by
the maintenance of law and order also but
disorder is a broad spectrum which
includes at one end small disturbances and
at the other the most serious and
cataclysmic
happenings.
(Dr.
Ram
Manohar Lohia vs State of Bihar and
others, AIR 1966 SC 740).

(14). In Mrs. T. Devaki vs
Government Of Tamil Nadu and others,
reported in AIR 1990 SC 1086, the Apex
Court has held that single incident of
murderous assault on the Minister in a
public place was prejudicial to the
maintenance
of
public
order.
Any
disorderly behaviour of a person in the
public or commission of a criminal offence
is bound to some extent affect the peace
prevailing in the locality and it may also
11 All. Danish Vs. State of U.P. & Ors.
801
affect law and order problem but the same
need not affect maintenance of public
order. The incident did not and could not
affect public peace and tranquillity nor it
had potential to create a sense of alarm
and insecurity in the locality. The solitary
incident as alleged in the ground of
detention is not relevant for sustaining the
order of detention for the purpose of
preventing the petitioner from acting in a
manner prejudicial to the maintenance of
public order.

(15). Learned counsel for the
petitioner has further submitted that this is
a solitary case and thus, there was no
occasion for the detaining authority to have
passed the preventive detention order.
Reliance has been placed in this regard on
the judgment of the Apex Court rendered in
the case of Rekha vs State Of Tamilnadu
through
Secretary
to
Government,
reported in AIR 2011 (5) SCC 244,
wherein the Apex Court has held that if
recourse to criminal proceedings would be
sufficient to deal with alleged prejudicial
activities, then the detention order would
be illegal. 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, but the ordinary criminal law (IPC or
the penal statutes) will not able to deal with
this situation, then and only then, the
preventive detention law be taken recourse
to.

(17). Reference may also be made
to a judgment of the Apex Court rendered
in the case of Ramveer Jatav vs State Of
U.P. and others reported in AIR 1987 SC
63, wherein the Apex Court has observed
that it is difficult to infer from the solitary
ground set out in the grounds of detention
that the act alleged to have been committed
by the petitioner would have disturbed
public order as distinct from law and order
or that one single act committed by the
petitioner was of such a character that it
could reasonably be inferred by the
detaining authority that if not detained, he
would be likely to indulge in such activity
in future.

(18). Reliance has also been
placed on another judgment of the Apex
Court rendered in the case of Subhash
Bhandari vs District Magistrate Lucknow,
reported in AIR 1987 (4) SCC 685.

(19). Thus, in view of the
aforesaid facts and circumstances of the
case and consistent legal position as
enumerated above, we set aside the
impugned detention order dated 19.9.2018
passed by the District Magistrate, Muzaffar
Nagar, respondent no.3, as approved by the
State Government on 1.11.2018 and all
consequential orders by means of which the
period of detention was extended from time
to time.

(20). The writ petition is allowed.
The petitioner, if not wanted in any other
case, shall be released from custody
forthwith in accordance with law after due
communication of this order to the
authorities concerned, once again in
accordance with law."

(23). Keeping in view the totality of
circumstances and the guidelines set up by
the Hon'ble Apex Court as well as this
Court in aforementioned cases, we set aside
the
impugned
Order
(No.05/J.A./N.S.A./2022) dated 06.09.2022
(Annexure No.7 to the writ petition) passed
by
the
District
Magistrate/Restraining
Authority, Kanpur Nagar (respondent no.3)
as approved by the State Government and
the Advisory Board, as well as subsequent
802 INDIAN LAW REPORTS ALLAHABAD SERIES
orders whereby detention of the petitioner
has been extended time to time.

(24). The instant Habeas Corpus Writ
Petition is ALLOWED. The petitioner, if
not wanted in any other case, shall be
released
from
custody
forthwith
in
accordance
with
law
after
due
communication of this order to the
authorities concerned.

(25). No orders with regard to cost.
----------
(2023) 11 ILRA 802
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.10.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters Under Article 227 No. 4547 of
2023(Criminal)

Prashant Chaudhary ...Petitioner
Versus
Ritesh Kumar Singh. ...Respondent

Counsel for the Petitioner:
Sri Saroj Kumar Yadav

Counsel for the Respondent:
Sri Gyanendra Prakash Srivastava, Sri
Chandan Kumar Mishra

Civil Law - Negotiable Instrument Act,
1881-Section138 - complaint clearly St.d that
the notice was sent through a registered post
and that it was never returned to the
complainant- complaint discloses a date of
service of notice- date of the receipt of notice is
very much important - not necessary that any
particular date as regard receipt of demand
notice should mandatorily be mentioned in the
complaint itself.
Petition dismissed. (E-9)

Cases cited:
1. C. C. Alavi Haji Vs Palapetty Muhammed,
(2007) 6 SCC 555

2. Dashrathbhai Trikambhai Patel Vs Hitesh
Mahendrabhai Patel & anr.; 2022 (4) Civil Court
Cases 279 (S.C.)

3. Deepak Kumar & anr. Vs St. of U.P. & anr.;
2007 (2) Civil Court Cases 467 (Allahabad)

4. Ajeet Seeds Ltd.Vs K. Gopala Krishnaiah;
(2014) 12 SCC 685

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. Heard Sri Saroj Kumar Yadav,
learned counsel for the petitioner, Sri
Chandan Kumar Mishra, Advocate holding
brief for Sri Gyanendra Prakash Srivastava,
learned counsel for the respondent.

2.