# Kamalveer Singh v. Adhikshak Janpad Karagar, Moradabad & Ors

- **Citation:** (2024) 3 ILRA 1389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-28
- **Case number:** Habeas Corpus Writ Petition No. 47 of 2024
- **Bench:** Siddhartha Varma, Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamalveer-singh-v-adhikshak-janpad-karagar-moradabad-ors-51589
- **Pages:** 16

## Headnote

Civil Law -National Security Act, 1980 -
Sections
3(2),
3(4),
10
&
11(4)
-
Constitution of India,1950 - Articles 14,
21, 22(3)(b) & 300A - Habeas Corpus -
Preventive Detention - Public Order vs. Law and
Order - Staleness of Grounds - Denial of Legal
Assistance - Delay in Representation Disposal
The petitioner, Kamalveer Singh, sought a writ
of habeas corpus challenging his preventive
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
detention under Section 3(2) of the National
Security Act, 1980 (NSA), vide order dated
03.12.2023,
confirmed
on
03.01.2024,
stemming from his alleged conspiratorial role in
Case Crime No. 598 of 2023 (Sections 302, 307,
120B IPC), Case Crime No. 818 of 2023 (Section
7/25 Arms Act), and Case Crime No. 861 of
2023 (Section 3(1) U.P. Gangsters Act). The
detention was based on a murder incident on
10.08.2023, which the St. claimed disturbed
public order. The petitioner argued: (i) the
incident was a law and order issue, not public
order; (ii) no likelihood of bail existed, as his
bail application in the IPC case was rejected and
none were pending in other cases; (iii) he was
denied legal assistance before the Advisory
Board while the St. had legal aid; (iv) the
detention was based on a stale incident (fourmonth gap); and (v) the U.O.I. delayed
disposing his representation. Held: The court,
relying on Icchu Devi Choraria Vs U.O.I. (AIR
1980
SC
1983),
Mohinuddin
Vs
District
Magistrate, Beed (AIR 1987 SC 1977), and other
precedents, held that habeas corpus petitions
require minimal pleading, and the burden lies on
the St. to justify detention. The grounds of
detention were vague, failing to establish a
public order disturbance as per Dr. Ram
Manohar Lohia Vs St. of Bihar (AIR 1966 SC
740) and Mrs. T. Devaki Vs Govt. of Tamil Nadu
((1990) 2 SCC 456). No likelihood of bail existed
(Kamarunnissa Vs U.O.I. ((1991) 1 SCC 128)),
as the petitioner's bail was rejected, and no
applications were pending under the Arms or
Gangsters Acts. Denial of legal assistance,
despite the St.'s use of law officers, violated
Article 14 and A.K. Roy Vs U.O.I. ((1982) 1 SCC
271). The four-month gap between the incident
and detention order rendered the grounds stale
(Alijan Mian Vs District Magistrate, Dhanbad
((1983) 4 SCC 301)). The Union's 10-day delay
in disposing the representation (Rajammal Vs
St. of Tamil Nadu ((1999) 1 SCC 417)) further
vitiated the detention. The court quashed the
detention order, allowing the petition and
ordering the petitioner's release unless required
in other cases.

Case Law Cited:

## Text

_Characters 0–39,839 of 55,015. This is a partial read: ask again with offset=39839 for what follows._

3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1389
Being infuriated, Jadgamba Prasad struck
Rajendra Kumar with lathis and wooden
sticks and injured him. Jagdamba Prasad
throttled the deceased with the use of
wooden stick resulting in his death
sometime in the night and threw the body
in the field of Ramchander. It has then
opined that it is a case of circumstantial
evidence. We can only say that the trial
court has imagined a story which was not
even suggested by the prosecution much
less proved. This was never the case of the
prosecution. Not much discussion is
required to demonstrate the apparent error
committed by the trial court while
convicting
Jagdamba
Prasad.
His
conviction is based purely on conjecture
and surmises which cannot take the place
of evidence. Such conjectural findings
cannot be the basis for his conviction.

(60) We are thus of the opinion that
conviction of Jagdamba Prasad is perverse
and is liable to be set aside. The judgment
of the trial court so far as it convicts
appellant-Jagdamba Prasad and sentences
him to life imprisonment and imposes other
sentence is liable to be set aside. It is
accordingly set aside. The remaining part
of the judgment, that is, so far as it acquits
the other accused, is sustained.

(61) Jagdamba Prasad-the appellant is
also acquitted of the charge framed against
him. The appellant- Jagdamba Prasad is on
bail. Bail bonds submitted earlier are
cancelled and sureties are discharged. The
appellant-Jagdamba Prasad is directed to
file personal bond and two sureties in the
like amount to the satisfaction of the Court
concerned in compliance of Section 437-A
of the Code of Criminal Procedure within
six weeks.

(62) In view of the above discussion,
the appeal of the State bearing Government
Appeal No.1000325 of 2007 is dismissed.
The appeal of the appellant-Jagdamba
Prasad bearing Criminal Appeal No.1462
of 2007 is allowed. The revision of the
informant
bearing
Criminal
Revision
No.398 of 2007 is dismissed.

(63) Let lower court record along with
a copy of this judgment be sent to learned
trial court for its information and necessary
compliance.
----------
(2024) 3 ILRA 1389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 47 of 2024

Kamalveer Singh ...Petitioner
Versus
Adhikshak Janpad Karagar, Moradabad &
Ors. ...Respondents

Counsel for the Petitioner:
Sri
Abhishek
Kumar
Mishra,
Sri
Chandrakesh Mishra, Sri Daya Shankar
Mishra (Sr. Advocate)

Counsel for the Respondents:
A.S.G.I., G.A.

Civil Law -National Security Act, 1980 -
Sections
3(2),
3(4),
10
&
11(4)
-
Constitution of India,1950 - Articles 14,
21, 22(3)(b) & 300A - Habeas Corpus -
Preventive Detention - Public Order vs. Law and
Order - Staleness of Grounds - Denial of Legal
Assistance - Delay in Representation Disposal
The petitioner, Kamalveer Singh, sought a writ
of habeas corpus challenging his preventive
1390 INDIAN LAW REPORTS ALLAHABAD SERIES
detention under Section 3(2) of the National
Security Act, 1980 (NSA), vide order dated
03.12.2023,
confirmed
on
03.01.2024,
stemming from his alleged conspiratorial role in
Case Crime No. 598 of 2023 (Sections 302, 307,
120B IPC), Case Crime No. 818 of 2023 (Section
7/25 Arms Act), and Case Crime No. 861 of
2023 (Section 3(1) U.P. Gangsters Act). The
detention was based on a murder incident on
10.08.2023, which the St. claimed disturbed
public order. The petitioner argued: (i) the
incident was a law and order issue, not public
order; (ii) no likelihood of bail existed, as his
bail application in the IPC case was rejected and
none were pending in other cases; (iii) he was
denied legal assistance before the Advisory
Board while the St. had legal aid; (iv) the
detention was based on a stale incident (fourmonth gap); and (v) the U.O.I. delayed
disposing his representation. Held: The court,
relying on Icchu Devi Choraria Vs U.O.I. (AIR
1980
SC
1983),
Mohinuddin
Vs
District
Magistrate, Beed (AIR 1987 SC 1977), and other
precedents, held that habeas corpus petitions
require minimal pleading, and the burden lies on
the St. to justify detention. The grounds of
detention were vague, failing to establish a
public order disturbance as per Dr. Ram
Manohar Lohia Vs St. of Bihar (AIR 1966 SC
740) and Mrs. T. Devaki Vs Govt. of Tamil Nadu
((1990) 2 SCC 456). No likelihood of bail existed
(Kamarunnissa Vs U.O.I. ((1991) 1 SCC 128)),
as the petitioner's bail was rejected, and no
applications were pending under the Arms or
Gangsters Acts. Denial of legal assistance,
despite the St.'s use of law officers, violated
Article 14 and A.K. Roy Vs U.O.I. ((1982) 1 SCC
271). The four-month gap between the incident
and detention order rendered the grounds stale
(Alijan Mian Vs District Magistrate, Dhanbad
((1983) 4 SCC 301)). The Union's 10-day delay
in disposing the representation (Rajammal Vs
St. of Tamil Nadu ((1999) 1 SCC 417)) further
vitiated the detention. The court quashed the
detention order, allowing the petition and
ordering the petitioner's release unless required
in other cases.

Case Law Cited:

1. Icchu Devi Choraria Vs U.O.I., AIR 1980 SC
1983
2. Mohinuddin Vs District Magistrate, Beed, AIR
1987 SC 1977

3. Dr. Ram Manohar Lohia Vs St. of Bihar, AIR
1966 SC 740

4. Mrs. T. Devaki Vs Govt. of Tamil Nadu,
(1990) 2 SCC 456

5. Kamarunnissa Vs U.O.I., (1991) 1 SCC 128

6. Baby Devassy Chully @ Bobby Vs U.O.I.,
(2013) 4 SCC 531

7. Abhayraj Gupta Vs Superintendent, Central
Jail, Bareilly, 2022 (1) ADJ 451

8. Rekha Vs St. of Tamil Nadu, (2011) 5 SCC
244

9. A.K. Roy Vs U.O.I., (1982) 1 SCC 271

10. Choith Nanikram Harchandani Vs St. of
Maharashtra, (2018) 2 SCC (Cri) 403

11. Najar Quraishi Vs Superintendent & Ors.,
Habeas Corpus Petition No. 3293 of 2018

12. Alijan Mian Vs District Magistrate, Dhanbad,
(1983) 4 SCC 301

13. Mohd. Sahabuddin Vs District Magistrate, 24
Parganas, (1975) 4 SCC 114

14. Rajammal Vs St. of Tamil Nadu, (1999) 1
SCC 417

15. Shalini Soni Vs U.O.I., (1980) 4 SCC 544

16. Sheshdhar Misra Vs Superintendent, Central
Jail, Naini, 1985 All LJ 1222

17. Arun Ghosh Vs St. of W.B., (1970) 1 SCC 98

18. Yusuf Malik Vs U.O.I., 2023 LiveLaw (SC)

19*. Ameena Begum Vs St. of Telangana, 2023
0 Supreme (SC) 825

20. Dipak Bose Vs St. of W.B., (1972) 2 SC 2686
21. Niyaz Ansari Vs Adhikshak, Janapad
Karagar, Chitrakoot, Habeas Corpus Petition No.
622 of 2023
3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1391
(Delivered by Hon'ble Siddhartha Varma,
J.
&
Hon'ble Ram Manohar Narayan Mishra, J.)

1. This writ petition has been filed for
the release of the petitioner - Kamalveer
Singh, by issuing a writ of habeas corpus.

2. Brief background of the case is that
on 10.8.2023 an incident took place
whereby one Anuj Chaudhary was killed
and a First Information Report was lodged
on the same day which gave rise to Case
Crime No. 598 of 2023 registered under
Sections 302 and 307 IPC. There were four
named accused in the case being Amit
Kumar, Pushpendra, Aniket and Prabhakar
and it was also alleged that there were
some other persons who were not known to
the First Informant. The First Information
Report was got lodged by one Sandeep
Singh.

3. Thereafter on 01.11.2023 on the
basis of an added Section, namely, section
120B
IPC,
the
petitioner
was
also
implicated in the Case Crime No.598 of
2023 in a conspiratorial role. Further on
07.11.2023 in Case Crime No.818 of 2023,
under Section 7/25 of the Arms Act, the
petitioner was named in the crime. Still
further, on 28.11.2023, the petitioner was
implicated in Case Crime No.861 of 2023,
under Section 3(1) of the U.P. Gangsters
and Anti-Social Activities (Prevention)
Act, 1986. He was thereafter in jail.

4. Thereafter, on a report /
proposal of the Police dated 30.11.2023, an
order under Section 3(2) of the National
Security Act, 1980, was passed wherein an
order of detention was passed on 3.12.2023
by the District Magistrate for preventive
detention of the petitioner.

5. Learned counsel for the petitioner
has drawn the attention of the Court to the
fact that the petitioner was not named in the
First Information Report and only when
there was a communication of the brotherin-law of the deceased, namely, Neeraj
Khatri the name of the petitioner had
surfaced. Thereafter in pursuance of the
provisions under Section 3(4) of the
National Security Act, 1980, on 12.12.2023
the order of approval was passed by the
State Government. The order of preventive
detention
dated
3.12.2023
was
also
accompanied by the grounds of detention
which were of the same date and they gave
reasons on the basis of which detention had
been made. In the order dated 3.12.2023 it
was also provided that the petitioner could
represent before the Advisory Board as is
provided under Section 10 of the National
Security Act, 1980. Simultaneously the
petitioner was also given the opportunity to
represent to the Union of India under
Section 3(4) of the National Security Act.
The petitioner thereafter on the order dated
3.12.2023 being approved under Section
3(4) of the National Security Act, 1980,
represented to the Advisory Board by a
representation dated 13.12.2023 and also
sent his representation to the Union of India
through the State Government on the very
same date.

6. Thereafter on 16.12.2023 an
alleged hearing was undergone and on
3.1.2024 the order of the State Government
was passed by which the petitioner's
detention order dated 3.12.2023 was
confirmed in view of the report of the
Advisory Board. The order dated 3.1.2024
provided the preventive detention of the
1392 INDIAN LAW REPORTS ALLAHABAD SERIES
detenue for a period of 3 months,
tentatively, from the date of detention.

7. The representation which was sent
to the Union of India on 13.12.2023 was
received by the Union of India on
22.12.2023 and, thereafter, it was rejected
on 23.12.2023 and the communication of
the rejection order was sent to the petitioner
on 26.12.2023.

8. Learned counsel for the petitioner
has submitted that the mere submission of
the petitioner that the preventive detention
was illegal was sufficient enough for the
petitioner to approach this Court and that
the State ought to have justified its stand in
passing orders. It was sufficient for him to
state that the detention order dated
3.12.2023 which was confirmed by the
order dated 3.1.2024 was illegally passed
and be set aside.

9. In this regard learned counsel for
the petitioner relied upon the decisions of
the
Supreme
Court
in
Icchu
Devi
Choraria vs. Union of India reported in
AIR 1980 SC 1983 and Mohinuddin @
Moin Master vs. District Magistrate,
Beed and others reported in AIR 1987 SC
1977.

10. In both the decisions learned
counsel for the petitioner specifically relied
upon paragraph no. 4. The paragraph no. 4
of Icchu Devi Choraria vs. Union of
India reported in AIR 1980 SC 1983 is
being reproduced here as under:-

"4. It is also necessary to point
out that in case of an application for a writ
of habeas corpus, the practice evolved by
this Court is not to follow strict rules of
pleading nor place undue emphasis on the
question as to on whom the burden of proof
lies. Even a postcard written by a detenu
from jail has been sufficient to activise this
Court into examining the legality of
detention. This Court has consistently
shown great anxiety for personal liberty
and refused to throw out a petition merely
on the ground that it does not disclose a
prima facie case invalidating the order of
detention. Whenever a petition for a writ of
habeas corpus has come up before this
Court, it has almost invariably issued a
rule calling upon the detaining authority to
justify the detention. This Court has on
many occasions pointed out that when a
rule is issued, it is incumbent on the
detaining authority to satisfy the court that
the detention of the petitioner is legal and
in
conformity
with
the
mandatory
provisions of the law authorising such
detention: Vide Naranjan Singh v. State of
Madhya Pradesh; Sheikh Hanif, Gudma
Majhi & Kamal Saha v. State of West
Bengal, and Dulal Roy v. The District
Magistrate, Burdwan & Ors. It has also
been insisted by this Court that, in answer
to this rule, the detaining authority must
place all the relevant facts before the court
which would show that the detention is in
accordance with the provisions of the Act.
It would be no argument on the part of the
detaining authority to say that a particular
ground is not taken in the petition. Vide
Nazamuddin v. The State of West Bengal.
Once the rule is issued it is the bounden
duty of the Court to satisfy itself that all the
safeguards provided by the law have been
scrupulously observed and the citizen is not
deprived of his personal liberty otherwise
than in accordance with law. Vide Mohd.
Alam v. State of West Bengal and
Khudiram Das v. State of West Bengal &
Ors.

11. Similarly the paragraph no. 4 of
Mohinuddin @ Moin Master vs. District
3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1393
Magistrate, Beed and others reported in
AIR 1987 SC 1977 is being reproduced
here as under:-

4. It was an improper exercise of
power on the part of the High Court in
disallowing the writ petition on the ground
of imperfect pleadings. Normally, writ
petitions are decided on the basis of
affidavits and the petitioner cannot be
permitted to raise grounds not taken in the
petition at the hearing. The same rule
cannot be applied to a petition for grant of
a writ of habeas corpus. It is enough for the
detenu to say that he is under wrongful
detention, and the burden lies on the
detaining authority to satisfy the Court that
the detention is not illegal or wrongful and
that the petitioner is not entitled to the
relief claimed. This Court on more
occasions than one has dealt with the
question and it is now well-settled that it is
incumbent on the State to satisfy the Court
that the detention of the petitioner/detenu
was legal and in conformity not only with
the mandatory provisions of the Act but
also
strictly
in
accord
with
the
constitutional safeguards embodied in Art.
22(5). In return to a rule nisi issued by this
Court or the High Court in a habeas
corpus petition, the proper person to file
the same is the District Magistrate who had
passed the impugned order of detention
and he must explain his subjective
satisfaction and the grounds therefore; and
if for some good reason the District
Magistrate is not available, the affidavit
must be sworn by some responsible officer
like the Secretary or the Deputy Secretary
to
the
Government
in
the
Home
Department who personally dealt with or
processed the case in the Secretariat or
submitted it to the Minister or other Officer
duly authorised under the Rules of Business
framed by the Governor under Art. 166 of
the Constitution to pass orders on behalf of
the Government in such matters: Niranjan
Singh v. State of Madhya Pradesh, [1973]
1 SCR 691; Habibullah Khan v. State of
West Bengal, [1974] 4 SCC 275; Jagdish
Prasad v. State of Bihar & Anr., [1974] 4
SCC 455 and Mohd. Alam v. State of West
Bengal, [1974] 4 SCC 463. "

12. Learned counsel for the petitioner
has however argued on the merits of the
case and has submitted that the provisions
of National Security Act had been illegally
invoked and that the petitioner was thus
under the illegal detention.

13. Learned counsel for the petitioner
submitted that:-

(i) The Central Government or
the State Government could have detained
the petitioner for the maintenance of public
order and he has submitted that there was a
difference between Public Order and a
problem of law and order. Learned counsel
for the petitioner has explained the
difference between a law and order
problem and the difficulty in maintaining
public order and has submitted that, if there
was a disturbance to public order, then the
tempo of life of the community as a whole
was disturbed. He has submitted that every
assault in a public place like a public road
which culminates in the death of any
particular victim is definitely likely to
cause horror and create panic and terror to
those who are spectators, but it does not
mean that all such incident necessarily
cause disturbance or dislocation of the
community life of the localities in which
they are committed to such an extent that
the State has to work towards maintenance
of public order. He further submits that an
act which is so grave or intense which
would jeopardize the maintenance of public
1394 INDIAN LAW REPORTS ALLAHABAD SERIES
order only then would the State invoke the
provisions of the National Security Act,
1980 and would prevent a person from
acting in a manner which would be
prejudicial to maintenance of public order.
In the instant case he has submitted that
Anuj Chaudhary, as per the allegations
made in the FIR and as per the letter
written by his brother-in-law was having
some money transactions between the
parties and because of that the murder had
taken place.

Learned
counsel
for
the
petitioner, therefore relying upon 1985
ALJ
1222
(Sheshdhar
Misra
v.
Superintendent, Central Jail, Naini and
others); 1966 1 SCR 709 (Dr. Ram
Manohar Lohia v. State of Bihar); 1970
1 SCC 98 (Arun Ghosh v. State of West
Bengal); 2023 LiveLaw (SC) (Yusuf
Malik vs. Union of India & Ors.); 2023 0
Supreme (SC) 825 (Ameena Begum vs.
The State of Telangana and others);
1972 2 SC 2686 (Dipak Bose v. State of
West Bengal) and (1990) 2 SCC 456
(Mrs. T. Devaki vs. Government Of
Tamil Nadu and Ors.) has submitted that
just because of any disorderly behaviour of
a person in the public or just because of the
commission of a certain criminal offence
which would affect the law and order, lead
a Government to take such actions which
would result in the preventive detention of
any individual, who according to the
Government was indulging in acts which
were prejudicial to maintenance of public
order. He submits that not all law and order
problems would affect the maintenance of
public order.

Learned counsel for the petitioner
has since heavily relied upon paragraph No.
18 of the Judgment in Mrs. T. Devaki vs
Government Of Tamil Nadu And Ors
(supra) the same is being reproduced as
under:-

"18. The question which falls for
consideration is whether single incident of
murderous assault by the detenu and his
associates on the Minister at the Seminar
held at Dry Chilly Merchants Association
Kalai Arangam Hall 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
affect law and order problem but the same
need not affect maintenance of public
order. There is basic difference between
law and order and public order, this aspect
has been considered by this Court in a
number of decisions, see: Dr. Ram
Manohar Lohia v. State of Bihar (1966) 1
SCR 709: (AIR 1966 SC 740); Pushkar
Mukherjee v. State of West Bengal (1969) 2
SCR 635 : (AIR 1970 SC 852) and Shymal
Chakraborty v. Commr. of Police Calcutta,
(1970) 1 SCR 762: (AIR 1970 SC 269). In
these cases it was emphasised that an act
disturbing public order is directed against
individuals which does not disturb the
society to the extent of causing a general
disturbance
of
public
peace
and
tranquility. It is the degree of disturbance
and its effect upon the life of the
community
in
the
locality
which
determines the nature and character of
breach of public order. In Arun Ghosh v.
State of West Bengal (1970) 3 SCR 288 :
(AIR 1970 SC 1228), the Court held that
the question whether a man has only
committed a breach of law and order, or
has acted in a manner likely to cause
disturbance of the public order, is a
question of degree and the extent of the
reach of the act upon the society. This view
was reiterated in Nagendra Nath Mondal v.
State of West Bengal (1972) 1 SCC 498 :
(AIR 1972 SC 665); Sudhir Kumar Saha v.
Commr. of Police, Calcutta (1970) 3 SCR
3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1395
360 : (AIR 1970 SC 814); S. K. Kadar v.
State of West Bengal (1972) 3 SCC 816 :
AIR 1972 SC 1647; Kanu Biswas v. State of
West Bengal (1972) 3 SCC 831 : (AIR 1972
SC 1656); Kishori Mohan v. State of West
Bengal (1972) 3 SCC 845 : (AIR 1972 SC
1749) and Amiya Kumar Karmakar v. State
of West Bengal (1972) 2 SCC 672 (AIR
1972 SC 2259)."

Learned counsel for the petitioner
has also relied upon paragraphs no. 54 and
55 of the judgment in the case of Dr. Ram
Manohar Lohiya Vs. State of Bihar
reported in AIR 1966 SC 740 and the same
are being reproduced as under:-

"54.......
Public
order
if
disturbed, must lead to public disorder.
Every breach of the peace does not lead to
public disorder. 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.
Suppose that the two fighters were of rival
communities and one of them tried to raise
communal passions. The problem is still
one of law and order but it raises the
apprehension of public disorder. Other
examples
can
be
imagined.
The
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. A mere disturbance of law
and order leading to disorder is thus not
necessarily sufficient for action under the
Defence of India Act but disturbances
which subvert the public order are.
 55. It will thus appear that just as
'public order' in the rulings of this Court
(earlier cited) was said to comprehend
disorders of less gravity than those
affecting 'security of State', 'law and order'
also comprehends disorders of less gravity
than those affecting 'public order'. One has
to imagine three concentric circles. Law
and Order represents the largest circle
within
which
is
the
next
circle
representing public order and the smallest
circle represents security of State. It is
then easy to see that an act may affect law
and order but not public order just as an
act may affect public order but not
security of the State. (Emphasis supplied)"

Learned counsel for the petitioner
has, therefore, submitted that simply by
saying that the murder of Anuj Chaudhary
had caused disturbance of law and order
and, therefore, public order was prejudiced
was not the correct stand of the State
Government.
A
comprehensive
examination of the event and all the chain
reactions that event had would have to be
looked into.

(ii) Learned counsel for the
petitioner has thereafter submitted that
action under the National Security Act
could have been taken only if there was a
possibility of the petitioner being released
on bail. In this regard learned counsel for
the petitioner has relied upon the decisions
of the Supreme Court in Kamarunnissa vs.
Union of India & Anr. : (1991) 1 SCC
128; Baby Devassy Chully @ Bobby vs.
Union of India & Ors. : (2013) 4 SCC
531 and on the decisions this Court in
Abhayraj Gupta vs. Superintendent,
Central Jail, Bareilly : 2022 (1) ADJ 451.

Learned counsel for the petitioner
has relied upon the averments made in the
writ petition and has stated that it was very
categorically stated in paragraph No. 28 of
the writ petition that the petitioner's bail in
Case Crime No. 598 of 2023, which was
registered under Sections 302, 307 and
120B IPC was rejected and that there was
yet no bail application moved in the Arms
Act and in the Gangsters Act. These
allegations, in the counter affidavit have
not been successfully rebutted.
1396 INDIAN LAW REPORTS ALLAHABAD SERIES

Learned
counsel
for
the
petitioner, therefore, submits that when
there was absolutely no reason for the
respondents to believe that petitioner would
be moving out of the imprisonment then the
provisions of the National Security Act
ought not to have been invoked. While
relying upon a decision of this court
reported in 2022 (1) ADJ 451 : Abhayraj
Gupta v. Superintendent, Central Jail,
Bareilly, learned counsel for the petitioner
has stated that under the UP Gangsters and
Anti-Social Activities (Prevention) Act,
1986, a bail order was not granted as is
granted for just any other offence under the
IPC. Section 19 of the aforesaid act
provides that public prosecutor shall be
given an opportunity to oppose the bail
application for such release and also when
the public prosecutor opposes the bail
application, the Court shall have to be
satisfied that there were reasonable grounds
for believing that the applicant was not
guilty of the offence and that he was not
likely to commit any offence while he was
on bail. Learned counsel for the petitioner
therefore submits that when there was
absolutely no reason for the State to believe
that the petitioner would be bailed out from
jail in any of the three crimes he was
involved in there, the invocations of the
provisions of National Security Act was
done without any application of mind.

Leaned counsel for the petitioner
here has relied upon a judgment of the
Supreme Court reported in 2011 (5) SCC
244 : Rekha v. State of T. Nadu TR.
SEC.TO.GOVT.
&
Anr.
and
has
submitted that preventive detention is by
nature repugnant to democratic ideas and
an anathema to the rule of law. He submits
that when by the ordinary law of the land
the petitioner was already under a punitive
detention then was not at all required.

Learned counsel for the petitioner
has relied upon paragraphs No. 27, 29 and
30 of the above noted judgment reported in
2011 (5) SCC 244 : Rekha v. State of T.
Nadu TR. SEC.TO.GOVT. & Anr and
the same are being reproduced here as
under:-

" 27. In our opinion, there is a
real possibility of release of a person on
bail who is already in custody 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 hence the detention
order will be illegal. However, there can be
an exception to this rule, that is, where a
co-accused whose case stands on the same
footing had been granted bail. In such
cases,
the
detaining
authority
can
reasonably conclude that there is likelihood
of the detenu being released on bail even
though no bail application of his is
pending, since most courts normally grant
bail on this ground. However, details of
such alleged similar cases must be given,
otherwise the bald statement of the
authority cannot be believed.

...........

29. Prevention detention is, by
nature, repugnant to democratic ideas and
an anathema to the rule of law. No such
law exists in the USA and in England
(except during war time). Since, however,
Article 22(3)(b) of the Constitution of India
permits preventive detention, we cannot
hold it illegal but we must confine the
power of preventive detention within very
narrow limits, otherwise we will be taking
away the great right to liberty guaranteed
by Article 21 of the Constitution of India
which was won after long, arduous,
historic struggles. It follows, therefore, that
if the ordinary law of the land (Indian
Penal Code and other penal statutes) can
3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1397
deal with a situation, recourse to a
preventive detention law will be illegal.

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

Concluding this argument learned
counsel for the petitioner submitted that
when there was absolutely no chance of the
petitioner being bailed out in the cases
where he was punitively detained then
there was no doubt about the fact that the
petitioner
should
not
have
been
preventively detained.

(iii). Learned counsel for the
petitioner, thereafter has submitted that
when the petitioner had been served with
the order dated 03.12.2023 and when he
was asked by that order to represent before
the Advisory Board, then the petitioner had
through the jail authorities represented on
13.12.2023. The hearing was fixed for
16.12.2023. On that date, learned counsel
for the petitioner has stated that even
though the State Authorities were given the
assistance of lawyers, the petitioners were
deprived of any legal assistance. This
statement has been made in paragraph 43 of
the writ petition. This paragraph has been
replied to in paragraph no. 30 the counter
affidavit filed by the District Magistrate
wherein he has stated that the contents of
paragraph No. 43 of the writ petition do not
pertain to the answering respondent.
Further it is submitted that State has not
given any parawise reply to the contents of
the writ petition. This, learned counsel for
the petitioner states would mean that
though the State had the privilege of legal
assistance, the petitioner was deprived of
the same.

Learned counsel for the petitioner
therefore, submits that the petitioner's
interest was greatly prejudiced. He submits
that as per the law laid down in the
judgment
of
Najar
Quraishi
Vs.
Superintendent and three others passed
on 19.09.2018 in Habeas Corpus Petition
No.3293 of 2018, assistance of legal
advisors when had been extended in the
form of Government Officials to the State,
then the petitioner also ought to have been
given the assistance of lawyers/Amicus
Curiae etc. The judgment in Najar Quraishi
has relied upon the judgment of the
Supreme Court in A.K. Roy Vs. Union of
India and another, reported in (1982) 1
SCC 271 and on the judgement of Choith
Nanikram Harchandani v. State of
Maharashtra and Others reported in
(2018) 2 SCC (Cri) 403. Since learned
counsel for the petitioner has specifically
relied upon paragraph No.93 of the
judgment of A.K. Roy Vs. Union of India
and another, the same is being reproduced
herein as under:-

"93. We must therefore hold,
regretfully though, that the detenu has no
right to appear through a legal practitioner
in the proceedings before the Advisory
Board. It is, however, necessary to add an
important caveat. The reason behind the
provisions contained in Article 22 (3) (b) of
the Constitution clearly is that a legal
practitioner should not be permitted to
appear before the Advisory Board for any
party.
The
Constitution
does
not
contemplate that the detaining authority or
1398 INDIAN LAW REPORTS ALLAHABAD SERIES
the Government should have the facility of
appearing before the Advisory Board with
the aid of a legal practitioner but that the
said facility should be denied to the detenu.
In any case, that is not what the
Constitution says and it would be wholly
inappropriate to read any such meaning
into the provisions of Article 22. Permitting
the detaining authority or the Government
to appear before the Advisory Board with
the aid of a legal practitioner or a legal
adviser would be in breach of Article 14, if
a similar facility is denied to the detenu.
We must therefore make it clear that if the
detaining authority or the Government
takes the aid of a legal practitioner or a
legal adviser before the Advisory Board,
the detenu must be allowed the facility of
appearing before the Board through a legal
practitioner. We are informed that officers
of the Government in the concerned
departments often appear before the Board
and assist it with a view to justifying the
detention orders. If that be so, we must
clarify that the Boards should not permit
the authorities to do indirectly what they
cannot do directly; and no one should be
enabled to take shelter behind the excuse
that
such
officers
are
not
'legal
practitioners' or legal advisers. Regard
must be had to the substance and not the
form since, especially, in matters like the
proceedings
of
Advisory
Boards,
whosoever assists or advises on facts or
law must be deemed to be in the position of
a legal adviser. We do hope that Advisory
Boards will take care to ensure that the
provisions of Article 14 are not violated in
any manner in the proceedings before
them. Serving or retired Judges of the High
Court
will
have
no
difficulty
in
understanding this position. Those who are
merely 'qualified to be appointed' as High
Court Judges may have to do a little
homework in order to appreciate it."

Similarly the Apex Court in the
case of Choith Nanikram Harchandani
(supra) in paragraph 15 as held as
hereunder :-

"15. In our considered opinion,
since
the
detaining
authority
was
represented by the officers at the time of
hearing of the petitioner's case before the
Advisory Board, the petitioner too was
entitled to be represented through legal
practitioner. Since no such opportunity was
afforded to the petitioner though claimed
by him, he was denied an opportunity of a
fair hearing before the Advisory Board,
which eventually resulted in passing an
adverse order."

Therefore
learned
counsel
submitted that when the petitioner was not
granted any opportunity to have legal
assistance and the State had then as per the
law laid down by the Supreme Court, the
detention becomes illegal.

(iv). Learned counsel for the
petitioner has thereafter submitted that
when the event which was taken into
account for the invocation of the provisions
of National Security Act had occurred on
10.08.2023 and the preventive detention
order under Section 3(2) of the National
Security Act was passed on 03.12.2023, the
cause of action which formed the basis of
the action taken under the NSA had
become absolutely stale and, therefore, the
provisions of National Security Act could
not be evoked. For this purpose the learned
counsel for the petitioner has relied upon
the judgments of the Supreme Court in
Alijan Mian vs. District Magistrate,
Dhanbad and others : 1983 (4) SCC 301;
Md. Sahabuddin vs. District Magistrate,
24 Parganas and others : 1975 (4) SCC
114. When the Division Bench of this
Court in the case of Abhayraj Gupta Vs.
Superintendent, Central Jail, Bareilly
reported in 2022 (1) ADJ 451 had passed
3 All. Kamalveer Singh Vs. Adhikshak Janpad Karagar, Moradabad & Ors.
1399
the judgment on the basis of the fact that
staleness could be a ground for releasing of
detenu detained under the National Security
Act, the judgments of the Supreme Court
cited above had been dealt with in extenso.
Paragraphs No. 36, 37, 38, 39, 40 and 41 of
that judgment are relevant for the purposes
of this case and these were the paragraphs
which were relied upon by the learned
counsel for the petitioner Sri Daya Shankar
Mishra and they are being reproduced as
under:-

"36. Now we proceed to examine
the second ground of challenge, i.e. that the
incident which took place on 02-12-2019 is
a stale incident which is not proximate to
the time when the detention order was
passed on 23-01-2021 and there was no
live link between the alleged prejudicial
activity and the purpose of detention and
for this reason, the invocation of the
provisions of the NSA, 1980 after a long
delay of about 14 months was neither
warranted nor justified.

37. Sri D. S. Misra, learned
Senior
Advocate
appearing
for
the
petitioner has placed reliance on the
following dictum of the Hon'ble Supreme
Court in the case Ali Jaan Miyan Vs.
District Magistrate, Dhanbad, (1983) 4
SCC 301:-

".......when there is undue and
long
delay
between
the
prejudicial
activities and the passing of detention
order, the Court has to scrutinise whether
the detaining authority has satisfactorily
explained such a delay and afforded a
tenable and reasonable explanation as to
why such a delay has occasioned, when
called upon to answer and further the court
has to investigate whether the casual
connection has been broken in the
circumstances of each case.

39. In the instant case, the last
offence was committed on 3-6-1993 and the
detention order was passed on 4-5-1994.
No explanation is forthcoming in the
return. It is argued that the S.P.'s report
states that the detenu was absconding and
case was filed under S. 299, Cr.P.C. The
period during which he was allegedly
absconding is not disclosed. In these
circumstances, we are of the opinion that
the live link between the alleged incident or
the series of incidence and the detention
order is snapped and there is no proximity
between the crime committed and the order
of detention."

38. In Jagan Nath Biswas v. State
of W.B., (1975) 4 SCC 115, the Hon'ble
Supreme Court quashed the detention order
holding that

"2. The incidents themselves look
rather serious but also stale, having regard
to the long gap between the occurrences
and the order of detention. One should
have expected some proximity in time to
provide a rational nexus between the
incidents relied on and the satisfaction
arrived at."

39. In Mohd. Sahabuddin v. Distt.
Magistrate, 24 Parganas, (1975) 4 SCC
114, the Hon'ble Supreme Court quashed
the order of preventive detention on the
sole ground that the order of preventive
detention was passed nearly seven months
after
the criminal incident.

40. In Shalini Soni v. Union of
India, (1980) 4 SCC 544, the Hon'ble
Supreme
Court
while examining
the
validity of a détention order held as
follow:-

".....It is an unwritten rule of the
law, constitutional and administrative, that
whenever a decision making function is
entrusted to the subjective satisfaction of a
statutory functionary, there is an implicit
obligation to apply his mind to pertinent
and proximate matters only, eschewing the
1400 INDIAN LAW REPORTS ALLAHABAD SERIES
irrelevant and the remote...." (emphasis
supplied)

41. In the present case, the
incident in question took place on 02-122019, the petitioner was arrested on 22-122021, he was lodged in jail on 23-12-2021
and he was continuing to be in custody till
23-01-2021 - the date on which the
impugned order of prevention was passed.
The incident which occurred on 02-122019, i.e. about 14 months prior to passing
of the detention order, is certainly a stale
incident which is not proximate to the time
when the detention order dated 23-01-2021
was passed and there was no live link
between the alleged prejudicial activity and
the purpose of detention and the invocation
of the provisions of the NSA, 1980 against
the petitioner after a long delay of about
fourteen months was neither warranted nor
justified."

(v). Learned counsel for the
petitioner while relying upon the judgment
of the Supreme Court in 2011 (5) SCC 244
: Smt. Rekha Vs. State of Tamil Nadu
and another has submitted that preventive
detention was an extreme action which a
State takes. This preventive detention is
done in addition to the punitive detention
which is done in the actual case which
gives rise to the preventive detention and
therefore, the State should be circumspect
in taking action under the National Security
Act, 1980. He therefore, submits that when
the representation is made to the Advisory
Board, simultaneously representation is
also provided for being made to the Central
Government (as an added handle to the
detenue to place his/her case before the
Central Government).