# Kapil Kasana v. Union of India & Ors

- **Citation:** (2025) 3 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-04
- **Case number:** Habeas Corpus Writ Petition No. 384 of 2024
- **Bench:** Vivek Kumar Birla, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-kasana-v-union-of-india-ors-53099
- **Pages:** 12

## Headnote

Criminal Law - National Security Act, 1980
- Section 3 (2) - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 404 -
Against detention order - Due to animosity
of Gram Pradhan election, petitioner along
with other associates committed murder
of brother of informant, by firing upon him
at public place carrying arms - Taking
cognizance,
proceedings
under
NSA
started
against
all
accused
persons
including petitioner - Held, in some cases,
detenue has been acquitted whereas in
some cases police found no evidence,
resulted into submission of closure reports
- After getting acquittal in four cases in
2010, no crime committed by detenue up
to 2019, hence for period of 9 years
detenue never indulged in anti-social
activities
-
Investigating
Officer
mentioned about disturbance of law and
order but such St.ments not given by
informant and eye witnesses - Authority
failed to find nexus between alleged
offences and order of detention. (Para 14,
23, 26, 27)

Apprehension of D.M. that detenue who
was detained in jail, likely to get bail soon
and further satisfaction that he may be
involved
in
activities
prejudicial
to
maintenance of public order has no
rational basis - Impugned order quashed.
(Para 33)

Writ petition allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,667 of 40,561. This is a partial read: ask again with offset=39667 for what follows._

3 All. Kapil Kasana Vs. Union of India & Ors.
43
parties
concerning
their
matrimonial relationship.

(17) First Appeal is allowed in
terms of the above.
----------
(2025) 3 ILRA 43
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 384 of 2024

Kapil Kasana ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava, Ms. Katyaini Singh,
Sri Nigamendra Shukla, Sri Pratik Kumar

Counsel for the Respondents:
A.S.G.I., G.A., Sri Prem Narayan Rai

Criminal Law - National Security Act, 1980
- Section 3 (2) - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 404 -
Against detention order - Due to animosity
of Gram Pradhan election, petitioner along
with other associates committed murder
of brother of informant, by firing upon him
at public place carrying arms - Taking
cognizance,
proceedings
under
NSA
started
against
all
accused
persons
including petitioner - Held, in some cases,
detenue has been acquitted whereas in
some cases police found no evidence,
resulted into submission of closure reports
- After getting acquittal in four cases in
2010, no crime committed by detenue up
to 2019, hence for period of 9 years
detenue never indulged in anti-social
activities
-
Investigating
Officer
mentioned about disturbance of law and
order but such St.ments not given by
informant and eye witnesses - Authority
failed to find nexus between alleged
offences and order of detention. (Para 14,
23, 26, 27)

Apprehension of D.M. that detenue who
was detained in jail, likely to get bail soon
and further satisfaction that he may be
involved
in
activities
prejudicial
to
maintenance of public order has no
rational basis - Impugned order quashed.
(Para 33)

Writ petition allowed. (E-13)

List of Cases cited:

1. Nenavath Bujji Vs The St. of Telangana &
ors., 2024 0 Supreme (SC) 265

2. Rameshwar Shaw Vs D.M., Burdwan & anr.,
1963 0 Supreme (SC) 221, (Paras 9, 10)

3. Ramesh Yadav Vs D.M., Etah & ors., 1985 0
Supreme (SC) 301

4. Shashi Aggarwal Vs St. of U.P., 1988 LawSuit
(SC) 12

5. Veeri Singh Vs U.O.I. & ors., 2016 0 Supreme
(All) 714

6. Alijan Mian Vs D.M., Dhanbad, AIR 1983 SC
1130

7. Ramesh Yadav Vs D.M., Etah, AIR 1986 SC
315

8. Pushkar Mukherjee Vs St. of W.B., (1969) 1
SCC 10, (Para 13)

9. Khudiram Das Vs St. of Bengal, (1975) 2 SCC
81, (Para 52)

10. Kamarunnissa Vs U.O.I.& anr. 1990 (27) ACC
621 SC, (Para 13)

11. Yumman Ongbi Lembi Leima Vs St. of
Manipur & ors., Criminal Appeal No.26 of 2012
decided on 4.1.2012

12. Vijay Narain Singh Vs St. of Bihar, (1984) 3
SCC 14
44 INDIAN LAW REPORTS ALLAHABAD SERIES
13. Pebam Ningol Mikoi Devi Vs St. of Manipur,
(2010) 9 SCC 618

14. Arun Ghosh Vs St. of W.B., 1970 (3) SCR
288
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Shri Nigmendra Shukla,
learned counsel for the petitioner, Sri Prem
Narain Rai, learned counsel for the Union
of India and Shri Ajay Kumar Sharma,
learned A.G.A. for the State respondents.

2.
Present
Habeas
Corpus
Writ
Petition
under
Article
226
of
the
Constitution of India has been preferred
seeking following reliefs:-

"a). issue writ, order or direction
in the nature of writ of habeas corpus
directing the respondents to set the
petitioner at liberty after setting aside the
order dated 4.3.2024 (Annexure-1) passed
by the respondent no.5, namely, the District
Magistrate, Ghaziabad in exercise of his
power under Section 3 (2) of National
Security Act, 1980.

b) issue such other order or
direction which this Hon'ble Court may
deem fit and proper in the case.

c). to award the cost to the
petitioner."

3. The aforesaid reliefs have been
prayed for on the basis of following main
grounds :

(i) that the impugned detention
order is a non-speaking order and as such
not sustainable under law.

(ii) that no subjective satisfaction
has
been
recorded
by
the
District
Magistrate, Ghaziabad while passing the
impugned detention order.

(iii) that there may be problem of
law and order and not public order.

4. The impugned detention order
dated
4.3.2024
was
passed
by
the
respondent no.5 - District Magistrate,
Ghaziabad under Section 3 (2) of the
National Security Act, 1980 (in short 'the
NSA, 1980').

5. The extracts of case diary
including the statements of the witnesses
recorded by the Investigating Officer have
been appended with the affidavit by the
petitioner.

6. It is contended by the learned
counsel
for
the
petitioner
that
the
proceedings under the NSA, 1980 were
initiated against the petitioner on the basis
of F.I.R. dated 23.10.2023 registered at
case crime no. 611 of 2023 under Sections
147, 148, 149, 302 and 404 IPC, P.S.
Tilamod, District Ghaziabad. The incident
alleged in the said F.I.R. was that the
brother of the informant was shot on
22.10.2023 at about 8.30 p.m. near his
house by nine named and one unknown
persons including the present petitioner. In
pursuance of that F.I.R. the petitioner was
arrested on 24.10.2023 and he is still in jail.
Subsequently, charge sheet no. 01/2024
was submitted in the matter on 19.1.2024
for the offences under Sections 147, 148,
149, 302, 404, 120-B, 34, 224, 394, 411,
307 IPC, 7 Criminal Law Amendment Act
and 3/25 and 27 of the Arms Act. There
were
material
contradictions
in
the
statement of the wife of the deceased
recorded under Section 161 CrPC from that
of mentioned in the F.I.R. of this case but
the learned trial court discarded the same. It
is also submitted that a report was prepared
by
the
S.H.O.,
P.S.
Tilamod,
Commissionerate, Ghaziabad on 2.3.2024,
3 All. Kapil Kasana Vs. Union of India & Ors.
45
which was forwarded to the respondent
no.8
through
respondent
no.7,
recommending action against the petitioner
under Section 3(2) of the NSA, 1980. The
respondent no.8 enquired into the matter
and
concurring
with
the
report
of
respondent no.9 - S.H.O. P.S. Tilamod,
recommended detention / action against the
petitioner under Section 3(2) of the NSA,
1980. The respondent no.8 in his report
picturized the petitioner as an anti-social
criminal minded person, who by his criminal
acts causes panic, fear and terror in the minds
of villagers resultantly affecting the public life
adversely hence, to preserve peace in the
village and society and for establishment of
rule of law the detention of the petitioner
under the NSA, 1980 was required, as per the
report of respondent no.2, sent to respondent
no.5 and subsequently the impugned detention
order was passed accordingly. All the
concerned authorities recorded almost same
findings pertaining to the present petitioner but
significantly
the
District
Magistrate,
Ghaziabad passed the impugned order dated
4.3.2024 which was a non-speaking order
without recording any subjective satisfaction
or giving any separate finding on his part
which shows the lack of independent
application of mind by the District Magistrate,
Ghaziabad while passing the impugned
detention order.

7. It is further submitted that a
representation was made by the petitioner to
the District Magistrate, Ghaziabad as well as
to the respondent no.1 under Section 14 of
the NSA, 1980 on 9.3.2024 respectively
through the Jail Superintendent but while
rejecting the same, the impugned detention
order was confirmed by the authorities vide
orders dated 11.3.2024 and 9.4.2024. It is
also urged that the impugned order dated
4.3.2024 is based upon the baseless
apprehension that the petitioner's release on
bail in case crime no. 611 of 2023 might
cause terror in the society and the public
order would be affected adversely.

8. It is vehemently submitted that to
detain the petitioner on mere apprehension
that it might cause threat to public life and
order by committing similar criminal acts
cannot the sole ground for the detention of
any person under the NSA, 1980. It is also
submitted that the opinion expressed by the
District
Magistrate
while
passing
the
impugned order is based upon premises and
conjectures only and the said order is totally
flimsy and vague.

9. It is further submitted that the
present petitioner is having a criminal
antecedent of nine cases, which are as
follows :

 (i) Case Crime No. 611 of 2023,
under Sections 147, 148, 149, 307, 402,
120-B,
34
IPC,
7
Criminal
Law
Amendment Act and 3/25/27 Arms Act,
P.S. Tilamod, Commissionerate Ghaziabad.

(ii) Case Crime No. 454 of 2023,
under Sections 332, 353, 504, 506 IPC, P.S.
Tilamod, Commissionerate Ghaziabad.

(iii) Case Crime No. 505 of 2023,
under Sections 323, 504, 506 IPC, P.S.
Tilamod, Commissionerate Ghaziabad.

 (iv) Case Crime No. 915 of
2019, under Sections 147, 307, 504 IPC,
P.S. Loni, Commissionerate Ghaziabad.

(v) Case Crime No. 1094 of 2021,
under Sections 420, 34, 467, 468, 471, 511
IPC,
P.S.
Loni,
Commissionerate
Ghaziabad.

(vi) Case Crime No. 49 of 2009,
under Section 307 IPC, P.S. Sector 58,
Commissionerate Gautambudh Nagar.

(vii) Case Crime No. 52 of 2009,
under Section 25 Arms Act, P.S. Sector 58,
Commissionerate Gautambudh Nagar.
46 INDIAN LAW REPORTS ALLAHABAD SERIES

(viii) Case Crime No. 1180 of
2008, under Section 307 IPC, P.S. Sector
58, Commissionerate Gautambudh Nagar.

(ix) Case Crime No. 664 of 2008,
under Sections 392, 411 IPC, P.S. Phase 2,
Commissionerate Gautambudh Nagar.

10. It is further urged that in the
cases
mentioned
here-in-above,
the
petitioner is enlarged on bail in cases
mentioned at sl. nos. 2 and 3, final reports
have been submitted in the cases mentioned
at sl. nos. 4 and 5 and in the rest of the
cases mentioned at sl. nos. 6 to 9 acquittal
orders have been recorded in favour of the
petitioner and further the criminal case
shown at sl. no.1 is the solitary case
wherein the petitioner is detained in jail and
the executive authorities have a baseless
apprehension that the release of the
petitioner on bail in the said case may
cause disturbance to the public order. It is
also submitted that the detention of the
petitioner without any cogent ground in jail
is in fact denial of the constitutional right
of the petitioner. The impugned order
suffers
from
infirmity
and
illegality
warranting interference by this Court.

11. In support of his submissions,
learned counsel for the petitioner has
placed
reliance
upon
the
following
decisions:

(i). Nenavath Bujji vs. The State
of Telangana and others, 2024 0 Supreme
(SC) 265.

(ii). Rameshwar Shaw vs. District
Magistrate, Burdwan and another, 1963 0
Supreme (SC) 221.

(iii). Ramesh Yadav vs. District
Magistrate, Etah and others, 1985 0
Supreme (SC) 301.

(iv). Shashi Aggarwal vs. State of
Uttar Pradesh, 1988 LawSuit (SC) 12.

(v). Veeri Singh vs. Union of
India and others, 2016 0 Supreme (All)
714.

12. Per contra, learned counsel for
the Union of India and the learned AGA
appearing for the State vehemently submit
that the petitioner is a hardened criminal
having a long criminal antecedent of
criminal cases of serious nature and his act
is threat to the society. He is in jail in the
aforesaid case crime no. 611 of 2023 under
Sections 147, 148, 149, 302, 404, 120-B,
34, 224, 394, 411, 307 IPC, 7 Criminal
Law Amendment Act and 3/25 and 27 of
the Arms Act. It is also submitted that there
is a genine apprehension to the authorities
and
more
particularly
the
District
Magistrate, Ghaziabad - respondent no.5
that the release of the petitioner on bail in
the aforesaid case crime no. 611 of 2023,
might cause disturbance in the public life
and the public order may be adversely
affected. It is further submitted that the
District
Magistrate,
Ghaziabad
-
respondent
no.5
after
recording
his
subjective satisfaction passed the impugned
order dated 4.3.2024 for detention of the
petitioner under Section 3(2) of the NSA,
1980 and accordingly he was detained in
district Jail, Ghaziabad. There is no
infirmity, perversity or illegality in the
impugned order warranting interference by
this Court.

13. We have considered the rival
submissions made by the learned counsel
for the parties and have gone through the
entire record including the impugned order.

14. The factual matrix, as brought
before this Court, in nutshell, is that several
criminal cases pertaining to the offences of
grievous nature were lodged against the
petitioner. He is a man of criminal
3 All. Kapil Kasana Vs. Union of India & Ors.
47
character creating terror in the society. Due
to the animosity of Gram Pradhan election
the petitioner alongwith other associates
committed murder of Pramod Kasana @
Lalu, the brother of the informant, by firing
upon him at a public place before a large
number of people carrying arms and firing
of several rounds was made and the law
and order and life of ordinary people was
endangered and it created a complete mess
in the society. Subsequently, some firearms
and cartridges were retrieved by the police
from other co-accused persons of the said
case and proceeding under the NSA, 1980
was also initiated against co-accused Kalu
@ Praveen son of Satveer by the District
Magistrate, Ghaziabad vide order dated
19.2.2024 and during investigation some
other accused persons wanted in the said
case crime no. 611 of 2023 were also
arrested by the police. Taking cognizance
to the aforesaid facts, proceedings under
the NSA, 1980 were started against the
petitioner and the authorities concerned
were under genuine apprehension that the
public life might be endangered if he gets
bail in the said case.

15. In the backdrop of the aforesaid
facts and circumstances, we have to
adjudge whether the impugned detention
order dated 4.3.2024 passed by the District
Magistrate, Ghaziabad is a genuine and
legal order or not.

16. To scrutinize the legality of the
said impugned order, it is desirable to have
a glance upon Section 3(2) of the NSA,
1980 alongwith explanation, which is
extracted as below :

 "3. Power to make orders
detaining
certain
persons.--(1)
The
Central
Government
or
the
State
Government may,--

(a) if satisfied with respect to any
person that with a view to preventing him
from acting in any manner prejudicial to
the defence of India, the relations of India
with foreign powers, of the security of
India, or

(b) if satisfied with respect of any
foreigner that with a view to regulating his
continued presence in India or with a view
to making arrangements for his expulsion
from India,

it is necessary so to do, make an
order directing that such person be
detained.

(2) The Central Government or
the State Government may, if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of public order or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community it is necessary
so to do, make an order directing that such
person be detained.
 Explanation.--For the purposes of
this sub-section, "acting in any manner
prejudicial to the maintenance of supplies and
services essential to the community" does not
include "acting in any manner prejudicial to the
maintenance of supplies of commodities
essential to the community" as defined in the
explanation to sub-section (1) of Section 3 of
the
Prevention
of
Blackmarketing
and
Maintenance
of
Supplies
of
Essential
Commodities Act, 1980 (7 of 1980), and
accordingly, no order of detention shall be
made under this Act on any ground on which
an order of detention may be made under that
Act."

17. At the very outset, we have to
consider whether the impugned order dated
48 INDIAN LAW REPORTS ALLAHABAD SERIES
4.3.2024 is a non-speaking order and no
subjective satisfaction has been recorded by
the District Magistrate, Ghaziabad and in
continuation of that it is also to be seen as
to whether the grounds shown by the
District
Magistrate,
Ghaziabad
while
passing the impugned detention order were
genuine or not.

18. The detention order dated
4.3.2024 is available on record wherein the
District
Magistrate,
Ghaziabad
has
mentioned that he is satisfied that to
maintain public order it is desirable to pass
a detention order against the present
petitioner and in view of above, the
impugned detention order was passed. A
perusal of the record further shows that the
District Magistrate, Ghaziabad was having
some apprehension that albeit the detenue
is in jail in connection with case crime no.
611 of 2023 but there is likelihood of his
being released on bail which may further
cause a threat to the public order.

19. In view of the above, we have
also paid our attention to the criminal
history of the petitioner. In the petition
itself the criminal antecedents of nine cases
of the detenue have been explained. The
record of this matter also reflects that out of
the said 9 cases, four cases have ended into
acquittal of the petitioner whereas in two
cases
the
police
after
thorough
investigation found no evidence against the
petitioner and resultantly final reports were
submitted by the Investigating Officer. In
other two cases, the petitioner is on bail and
in a solitary case as case crime no. 611 of
2023 he is detained in jail. The impugned
order passed by the District Magistrate,
Ghaziabad fails to show his subjective
satisfaction as it is nowhere logically
explained that the person, who is detained
in a solitary criminal case, will certainly be
granted bail and even if he is granted bail in
the solitary case wherein he is in jail, how
he may be a threat to the public order. The
District Magistrate, Ghaziabad without any
cogent material has made only a bald
statement that there is likelihood of the
petitioner being released on bail and the
said apprehension is totally flimsy and
vague and the impugned detention order is
certainly
based
on
premises
and
conjectures.

20. Reliance has been placed upon
Shashi Aggarwal case (supra) by the
petitioner wherein the Hon'ble Apex Court
had an opportunity to deal with the matter
and a primary question was raised before
the Hon'ble Supreme Court in the form as
to whether the detention of detenue would
be justified solely on the ground that he
was trying to come out on bail and there
was enough possibility of his being bailed
out and he would then act prejudicially to
the interest of the public order. The
Hon'ble Apex Court in the aforesaid case
also scrutinized the issue that despite being
in custody or in jail order against a person
could be passed by the authority but there
must be material apparently disclosed to
the detaining authority which is certainly
different in each and every case.

21.
The
District
Magistrate,
Ghaziabad in the instant case could not
satisfy by the impugned order that what
were the compelling reasons which led him
to consider that although the detenue is in
jail but his preventive detention is still
necessary.

22. In the aforesaid case, referring
to the decisions in Alijan Mian vs. District
Magistrate, Dhanbad, AIR 1983 SC 1130
and
Ramesh
Yadav
vs.
District
Magistrate, Etah, AIR 1986 SC 315, the
3 All. Kapil Kasana Vs. Union of India & Ors.
49
Hon'ble Apex Court concluded that what
was stressed in the above case is that an
apprehension of the detaining authority that
the accused if enlarged on bail would again
carry on his criminal activities is by itself
not sufficient to detain a person under the
National Security Act. It was further
stressed that merely on the ground that an
accused in detention as an under-trial
prisoner was likely to get bail an order of
detention under the National Security Act
should not ordinarily be passed.

23. It is to be noted that the crime
committed by the detenue has no nexus
with the order of detention passed by the
District Magistrate, Ghaziabad. We find
that the impugned order falls short to show
as to on what basis the District Magistrate,
Ghaziabad
recorded
his
subjective
satisfaction for passing of the same. The
aforesaid offence registered as case crime
no. 611 of 2023 is not such a case where
the petitioner had been offensive to the
public at large rather it was a case where a
particular person is said to be shot dead by
the detenue and his associates. The District
Magistrate, Ghaziabad absolutely ignored
the fact that in some of the cases the
detenue has been acquitted by the Court
whereas in some cases the police itself
found no evidence at all against the detenue
and the cases resulted into submission of
closure reports. The District Magistrate,
Ghaziabad failed to appreciate the fact that
after getting acquittal in four cases in the
year 2010 in the criminal cases pertaining
to the years 2008 and 2009 no crime was
committed by the detenue upto the year
2019 when case crime no. 915 of 2019 was
registered against him and hence for a
period of about 9 years having acquittal
orders in his favour the detenue never
indulged in any anti-social activities nor
provided any threat to the public safety and
order. Paragraph 22 of the affidavit
appended with the petition, which explains
the criminal antecedent of the detenue, is
relevant in this regard. Noteably, in
paragraph 41 of the counter affidavit dated
29.7.2024 the said facts have not been
controverted. There was a big gap between
the acquittal orders passed in the year 2010
and in case crime no. 915 of 2019 and if
after being acquitted by the competent
Court for a period of about 9 years no
criminal history accrued to the credit of the
detenue and he abstained himself to carry
on any criminal activities in the area, the
satisfaction of the District Magistrate,
Ghaziabad that if the detenue is released on
bail he would again involve himself in
criminal activities causing threat to the
public order, if in any condition, is
supposed to be true the bail application had
to be strongly opposed by the prosecution
and in case bail was granted challenge
against that order in the higher forum has to
be raised. In our view, the petitioner, who
was in jail as an under-trial prisoner, was
likely to get bail could never be a good and
valid ground and an order of detention
merely on the aforesaid ground under the
NSA, 1980 should not have been passed by
the District Magistrate, Ghaziabad. There is
a big difference between the apprehension
of the detaining authority and his subjective
satisfaction. Undisputably in the instant
matter there exists a flimsy apprehension
on the part of the District Magistrate,
Ghaziabad and the detention order lacks his
subjective satisfaction.

24.
In
Nenavath
Bujji
case
(supra), a leading case upon the subject, it
was held by the Hon'ble Apex Court that
the law is settled that power under any
enactment relating to preventive detention
has to be exercised with great care, caution
and restraint. Referring a decision in in
50 INDIAN LAW REPORTS ALLAHABAD SERIES
Pushkar Mukherjee vs. State of West
Bengal, (1969) 1 SCC 10, it was so held :

 "13........Does
the
expression
"public order" take in every kind of
infraction of order or only some categories
thereof. It is manifest that every act of
assault or injury to specific persons does
not lead to public disorder. When two
people quarrel and fight and assault each
other inside a house or in a street, it may be
said that there is disorder but not public
disorder. Such cases are dealt with under
the powers vested in the executive
authorities under the provisions of ordinary
criminal law but the culprits cannot be
detained on the ground that they were
disturbing public order. The contravention
of any law always affects order but before
it can be said to affect public order, it must
affect the community or the public at large.
In this connection we must draw a line of
demarcation
between
serious
and
aggravated forms of disorder which directly
affect the community or injure the public
interest and the relatively minor breaches
of peace of a purely local significance
which primarily injure specific individuals
and only in a secondary sense public
interest. A mere disturbance of law and
order leading to disorder is thus not
necessarily sufficient for action under the
Preventive Detention Act but a disturbance
which will affect public order comes within
the scope of the Act..."

25. Further, the Hon'ble Apex
Court
referring
another
decision
in
Khudiram Das vs. State of Bengal,
(1975) 2 SCC 81, also held that :

"52......while
examining
the
"history sheet" of the detenu, this Court
had, in express terms, clarified that a
generalisation could not be made that the
detenu was in the habit of committing those
offences. Merely because the detenu was
charged for multiple offences, it could not
be said that he was in the habit of
committing
such
offences.
Further,
habituality of committing offences cannot,
in isolation, be taken as a basis of any
detention order; rather it has to be tested on
the metrics of "public order", as discussed
above.
Therefore,
cases
where
such
habituality
has
created
any
"public
disorder" could qualify as a ground to order
detention."

26. In the case in hand, the detenue
along with his other associates committed
murder of the brother of the informant, as
alleged, and there is nothing in the entire
F.I.R. registered as case crime no. 611 of
2023 that any public disorder was caused
by the criminal act committed by the
petitioner and his associates. Although the
Investigating Officer has recorded in the
case diary that when murder of the brother
of the informant was committed it affected
the law and order situation but the oral
statements of witnesses nowhere disclose
that the incident of the murder of the
brother of the informant in anyway caused
public disorder and even the eye witnesses
Smt. Sunita, wife of the informant, and
Smt. Karuna @ Kunti, wife of the deceased
and the informant himself who were also
interrogated by the Investigating Officer,
stated nowhere that any public disorder was
caused following the said crime. Such
statements find place in annexure no.6,
appended with the affidavit by the
petitioner. It is true that the Investigating
Officer has mentioned in the case diary
regarding the disturbance of law and order
as a result of the crime of murder but it has
not been explained as to why such
statements were not given by the informant
and above-mentioned eye witnesses of this
3 All. Kapil Kasana Vs. Union of India & Ors.
51
case and it is a serious dent upon the issue
of subjective satisfaction on the part of the
District Magistrate.

27. In fact the past record of the
detenue must have a proximate and live
link with the ground of detention and if it is
not so such stale material/ case cannot be
made a basis for passing a detention order.
The District Magistrate although placed
reliance on the criminal antecedents of the
petitioner but he utterly failed to find out
the nexus between the alleged offences and
order of detention. He never bothered to
make his subjective satisfaction into the
allegations and facts disclosed in the report
and materials placed by the police and
simply passed the impugned order without
proper application of independent mind.

28. The detention order further fails
to show that how the District Magistrate,
Ghaziabad had a reason to believe on the
basis of material on record as to how there
were all the possibilities of the petitioner
being released on bail and further that on
being so released he would indulge in the
activities prejudicial to the maintenance of
public order in all probabilities. It is trite
law that the detention of the person
concerned in jail does not preclude the
authorities from passing an order of
detention but such authorities must always
apply their mind to the fact that the detenue
is already in jail and there exist compelling
reasons justifying such detention despite
the fact that he was already in jail. It further
requires that there must be cogent material
before the detaining authority which leads
to his subjective satisfaction that in near
future the detenue is likely to be released
from custody and after his release he would
properly indulge in the activities prejudicial
to the public order. The offence where for
the detenue is in jail may be an issue for
law and order but it is going to affect the
maintenance of public order meaning
thereby to affect the community and public
at large. This element is certainly missing
from the impugned order.

29. Hon'ble Supreme Court has laid
down the principles as to when a detention
order can be passed with regard to a person
already in judicial custody in the case of
Kamarunnissa vs. Union of India and
another 1990 (27) ACC 621 SC and in
paragraph 13 of the aforesaid case, Hon'ble
Supreme Court has held as hereunder:-

 "13. 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 his 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 of before a higher Court."

30. Over the issue in hand, the
Hon'ble Apex Court in a leading case
Rameshwar Shaw (supra) has held as
under:

"9. It is also true that in deciding
the question as to whether it is necessary to
detain a person, the authority has to be
satisfied that if the said person is not
52 INDIAN LAW REPORTS ALLAHABAD SERIES
detained, he may act in a prejudicial
manner, and this conclusion can be
reasonably
reached
by
the
authority
generally in the light of the evidence about
the past prejudicial activities of the said
person. When evidence is placed before the
authority in respect of such past conduct of
the person, the authority has to examine the
said evidence and decide whether it is
necessary to detain the said person in order
to prevent him from acting in a prejudicial
manner. That is why this Court has held in
Ujagar Singh v. The State of Punjab and
Jagjit Singh v. The State of Punjab(1) that
the past conduct or antecedent history of a
person can be taken into account in making
a detention order, and as a matter of fact, it
is largely from prior events showing
tendencies or inclinations of a man that an
inference could be drawn whether he is
likely even in the future to act in a manner
prejudicial to the maintenance of public
order.

10. In this connection, it is,
however, necessary to bear in mind that the
past conduct or antecedent history of the
person on which the authority purports to
act, should ordinarily be proximate in point
of time and should have a rational
connection with the conclusion that the
detention of the person is necessary. It
would, for instance, be irrational to take
into account the conduct of the person
which took plate ten years before the date
of his detention and say that even though
after the said incident took place nothing is
known against the person indicating his
tendency to act in a prejudicial manner,
even so on the strength of the said incident
which is ten years old, the authority is
satisfied that his detention is necessary. In
other words, where an authority is acting
bona fide and considering the question as to
whether a person should be detained, he
would naturally expect that evidence on
which the said conclusion is ultimately
going to rest must be evidence of his past
conduct or antecedent history which
reasonably and rationally justifies the
conclusion that if the said person is not
detained, he may indulge in prejudicial
activities. We ought to add that it is both
inexpedient and undesirable to lay down
any inflexible test. The question about the
validity of the satisfaction of the authority
will have to be considered on the facts of
each case. The detention of a person
without
a
trial
is
a
very
serious
encroachment on his personal freedom, and
so, at every stage, all questions in relation
to the said detention must be carefully and
solemnly considered."

31.
In
almost
similar
circumstances, the Hon'ble Apex Court in
Yumman Ongbi Lembi Leima v. State of
Manipur and Ors. (Criminal Appeal
No.26 of 2012 decided on 4.1.2012), held
that preventive detention is not to punish a
person for something he has done but to
prevent him from doing it. Only on the
apprehension of the detaining authority that
after being released on bail, the petitioner -
detenue will indulge in similar activities,
which will be prejudicial to public order,
order under the Act should not ordinarily
be passed. The personal liberty of an
individual is the most precious and prized
right guaranteed under the Constitution in
Part III thereof. The State has been granted
the power to curb such rights under
criminal laws as also under the laws of
preventive detention, which, therefore, are
required to be exercised with due caution as
well as upon a proper appreciation of the
facts as to whether such acts are in any way
prejudicial to the interest and the security
of the State and its citizens, or seek to
disturb public law and order, warranting the
issuance of such an order.
3 All. Kapil Kasana Vs. Union of India & Ors.
53
32. Further, the Hon'ble Apex
Court has cautioned in Vijay Narain Singh
Vs. State of Bihar, (1984) 3 SCC 14 by
holding that "the law of preventive
detention being a drastic and hard law,
must be strictly construed and should not
ordinarily be used for clipping the wings of
an accused if, criminal prosecution would
suffice."

33. In the case in hand the
apprehension of the District Magistrate that
the detenue who is detained in jail in a case
crime no. 611 of 2023 is likely to get bail
very soon and further, the satisfaction of
the District Magistrate that after being so
released on bail he may be involved in any
activities prejudicial to the maintenance of
public order has no rational basis. Both the
elements in the impugned order are having no
subjective satisfaction behind them. Subjective
satisfaction, as required, must be two fold, i.e.
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 him from so doing, as may be gathered
from the dictum of law promulgated by the
Hon'ble Apex Court in Pebam Ningol Mikoi
Devi v. State of Manipur, (2010) 9 SCC 618.

34. We have no hesitation to hold
that the detaining authority is always under
obligation
to
record
his
subjective
satisfaction on the relevant grounds and if
the application of mind is made in a
mechanical manner it can never fall in the
category of subjective satisfaction of the
detaining authority.

35. In the decision of Hon'ble
Apex Court in the case of Arun Ghosh v.
State of West Bengal, 1970 (3) SCR 288,
the question was whether the grounds
mentioned in the detention order could be
construed to be breach of public order and
as such, the detention order could be
validly made. The appellant in the said case
had molested two respectable young ladies
threatened their father's life and assaulted
two other individuals. He was detained
under Section 3(2) of the Preventive
Detention Act, 1950 in order to prevent
him from acting prejudicially to the
maintenance of public order. It was held by
the Hon'ble Apex Court that the question
whether a man has only committed a
breach of law and order, or has acted in a
manner likely to cause a disturbance of the
public order, is a question of degree and the
extent of the reach of the act upon society.
The test is: does it lead to a disturbance of
the even tempo of the life of the
community
so
as
to
amount
to
a
disturbance of the public order, or, does it
affect
merely
an
individual
without
affecting
the
tranquillity
of
society.
Therefore, it could not be said to amount to
an apprehension or breach of public order,
and hence, he was entitled to be released.
On the given subject, the decision in Veeri
Singh case (supra) also helps the case of
the petitioner.

36. From the above, we find that
the detaining authority for the ground of
detention has mentioned two grounds,
firstly, that the detenue is about to get bail
in case crime no. 611 of 2023 wherein he is
already in jail and secondly, there was
possibility of detenue indulging in similar
activities prejudicial to the maintenance of
public order on such release from jail.
However, the detaining authority has failed
to record his subjective satisfaction in the
impugned order that there was real
possibility of his being released on bail and
54 INDIAN LAW REPORTS ALLAHABAD SERIES
such omission is sufficient to vitiate the
impugned order. Further, there is no
substantive satisfaction on the part of the
District Magistrate on the point that after
being released on bail the detenue would
repeat
his
criminal
activities
prejudiciously affecting the maintenance of
public order. The District Magistrate
ignored the fact that earlier for a period of
about 9 years no criminal case was
registered against the detenue and in this
peculiar circumstance as well what was the
rational ground available to him to hold
that after getting bail the detenue was going
to act in any manner prejudiciously to the
maintenance of public order has not been
clarified in the impugned order. He also
missed to draw a distinction between the
areas of law & order and public order
because if the petitioner was likely to harm
the law & order only and it might not affect
the public order, no detention order could
be passed and no doubt on this point no
subjective satisfaction has been recorded at
the end of the detaining officer i.e. District
Magistrate, Ghaziabad. On the grounds
above-mentioned, the impugned order does
not fall into the category of 'speaking
order' as well.

37. Hence, in view of the above
analysis, we are of the considered view that
the detention order passed under the
provisions of Section 3 (2) of National
Security Act, 1980 is not sustainable under
law. Resultantly, the impugned detention
order
dated
4.3.2024
and
all
the
consequential orders are liable to be
quashed and the same are hereby quashed.

38. The present petition is allowed
and the petitioner/ detenue is ordered to be
set at liberty by the respondents forthwith
unless required in connection with any
other case.
----------
(2025) 3 ILRA 54
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI J.

Civil Misc. Review Application No. 33 of 2025
In Civil Misc. Writ Petition No. 3191 of 2019

Adeel Ahmad Khan ...Petitioner
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Petitioner:
Sri Kushmondeya Shahi, Sri Tanuj Shahi

Counsel for the Opposite Parties:
Sri Arvind Prabodh Dubey, C.S.C.

A.