# Mahmood v. Union of India & Ors

- **Citation:** (2019) 3 ILRA 303
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-01
- **Case number:** Habeas Corpus Writ Petition No. 719 of 2019
- **Bench:** Manoj Misra, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahmood-v-union-of-india-ors-44873
- **Pages:** 12

## Headnote

A. Criminal Law -National Security Act,
1980 - Section 3(2) - Indian Penal
Code,1860 - Sections 323/376 r/w
Section 3⁄4 POCSO Act- quashing of
detention order - accused committed
rape-people
started
sloganeering
against the nature of offence - due to
adverse affect on the public order,
respondent
authorities
passed
the
detention order against his release on
bail-
the
propensity
of
a
person
repeating the offence can be gathered
either by criminal antecedents or some
other material -District Magistrate has
recorded
that
if
the
petitioner
is
enlarged on bail, there is likelihood of
the
petitioner
indulging
in
similar
offences thereby adversely affecting the
public order, but there is no material on
record to justify the said satisfaction as
the petitioner did not have any criminal
antecedents-detention order passed by
the District Magistrate does not satisfy
the test as laid down by the Apex Court
and the rigours of law which are
required to be established before taking
a decision of preventive detention. (Para
6,12, 14 to 33)
304 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus petition allowed (E-6)

List of cases cited:-

1.Sudhir Kumar Saha Vs. The Commissioner of
Police, Calcutta and Ors, AIR 1970 SC 814

## Text

3 All. Mahmood Vs. Union of India & Ors.
303
between the parties and such a jural
relationship, on the fact and situation of the
case can not be placed anything different
from that of lessor and lessee falling within
purview of section 107 of the Act 1882.
Thus, applying the principles laid down in
case of Anthony (supra), the presumption
would be that a lease not exceeding one year
stood created by conduct of the parties.
Therefore, the plaintiffs-landlords lawfully
determined the lease by notice dated
12.12.2005. Since the disputed shop was not
vacated by the defendant-tenant/ revisionist
despite notice dated 12.12.2005, therefore,
the plaintiffs-landlords filed SCC Suit No. 4
of 2006 which has been lawfully decreed by
the impugned judgment dated 31.01.2007.
The question no. (c) is answered accordingly.

Question no. (d)

33. The contention of the plaintiffslandlords that for his entitlement to
damages @ Rs. 32/- per square feet per
month for an area of 2000 square feet i.e.
Rs. 64,000/- per month or any other
amount higher than Rs. 18,515/- per
month, is not supported by any evidence.
The plaintiffs-landlords failed to lead any
evidence to justify his demand of
damages at the rate of Rs. 32/- per square
feet per month. Therefore, the Court
below has not committed any error of law
in not accepting the claim for damages @
Rs. 32 per square feet per month. Thus, I
do not find any manifest error of law in
the impugned judgment with regard to
quantum of damages.

34. For all reasons aforestated, I do not
find any merit in both the Civil Revisions.
Therefore, the Civil Revision No. 561 of 2014
filed by the tenant and Civil Revision No. 141 of
2007 filed by the landlords, are dismissed.
However, there shall be no order as to costs.
----------
(2019)11ILR A303

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE PANKAJ BHATIA, J.

Habeas Corpus Writ Petition No. 719 of 2019

Mahmood ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gaurav Kakkar,Sri Saurabh Kesarwani

Counsel for the Respondents:
A.S.G.I., Sri Deepak Mishra, G.A., Sri
Prahlad Kumar Khare

A. Criminal Law -National Security Act,
1980 - Section 3(2) - Indian Penal
Code,1860 - Sections 323/376 r/w
Section 3⁄4 POCSO Act- quashing of
detention order - accused committed
rape-people
started
sloganeering
against the nature of offence - due to
adverse affect on the public order,
respondent
authorities
passed
the
detention order against his release on
bail-
the
propensity
of
a
person
repeating the offence can be gathered
either by criminal antecedents or some
other material -District Magistrate has
recorded
that
if
the
petitioner
is
enlarged on bail, there is likelihood of
the
petitioner
indulging
in
similar
offences thereby adversely affecting the
public order, but there is no material on
record to justify the said satisfaction as
the petitioner did not have any criminal
antecedents-detention order passed by
the District Magistrate does not satisfy
the test as laid down by the Apex Court
and the rigours of law which are
required to be established before taking
a decision of preventive detention. (Para
6,12, 14 to 33)
304 INDIAN LAW REPORTS ALLAHABAD SERIES
Habeas Corpus petition allowed (E-6)

List of cases cited:-

1.Sudhir Kumar Saha Vs. The Commissioner of
Police, Calcutta and Ors, AIR 1970 SC 814

2. Rameshwar Shaw Vs. District Magistrate,
Burdwan and Ors, AIR 1964 SC 334

3. Akhtar Hussain Vs. Union of India and Ors,
judgment passed in Habeas Corpus Writ
Petition No. 3547 of 2018

4. Arun Ghosh Vs. State of W.B., AIR 1970 SC 1228

5. Dr. Ram Manohar Lohiya Vs. State of Bih.,
1966 CrLJ 608

6. Shashi Agarwal Vs. State of U.P and Ors,
1988 (1) SCC 436

7. Haji Akhalak Vs. Union of India and Ors,
judgement passed in Habeas Corpus Writ
Petition No. 55685 of 2017

8. Istakaar and Anr. Vs. Union of India and
Ors, judgment passed in Habeas Corpus Writ
Petition No. 3094 of 2018

9.
Sudhir
Vs.
Union
of
India

and
Ors,Judgement passed in Habeas Corpus Writ
Petition No. 3181 of 2018

10. Dharmendra Suganchand Chelawat &
Suganchand Kanhaiyyalal Vs. Union of India,
AIR 1990 SC 1196

11. Attorney General For India Vs. Amratlal
Prajivandas and Ors, 1994 (5) SCC 54

12. Surya Prakash Sharma Vs. State of U.P.
and Ors, 1994 (Supp.) (3) SCC 195

13. Huidrom Konungjao Singh Vs. State of
Manipur and Ors, (2012) 7 SCC 181

14. Rekha Vs. State of T.N. { (2011) 5 SCC
244 : (2011) 2 SCC (Cri) 596}

15. Yumman Ongbi Lembi Leima Vs. State of
Manipur and Ors,(2012) 2 SCC 176

16. Munagala Yadamma Vs. State of A.P. and
Ors,(2012) 2 SCC 386

17. Kumail Vs. State of U.P. & Ors, judgment
in Habeas Corpus Petition No. 437 of 2019

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Saurabh Kesarwani for
the petitioner, Sri Deepak Mishra, learned
A.G.A. for the respondents 2, 3 and 4, Sri
Prahlad Kumar Khare for the Union of
India and perused the record.

2. The present habeas corpus petition
seeks release of the petitioner Mahmood
currently in detention in pursuance to the
detention order dated 20th May, 2019 passed
by the District Magistrate, Bijnor (respondent
no. 3) in exercise of powers under Section
3(2) of the National Security Act, 1980
(hereinafter referred to as the ''N.S.A. Act').

3. A perusal of the record reveals
that an F.I.R. dated 27.3.2019 was
registered as Case Crime No. 178 of
2019, under Sections 323/376 IPC read
with Section 3/4 POCSO Act, at Police
Station Najibabad, District Bijnor. In
pursuance to the said F.I.R., the detenue
(petitioner) was arrested on 29.3.2019 and
is in detention since then. It has been
brought on record that after the arrest of
the petitioner, during the investigation of
the case, the statement of prosecutrix
namely Wasiya, aged about 10 years, was
recorded under Section 161 Cr.P.C. on
28.3.2019 (Annexure-10 to the petition).
The Investigating Officer also recovered
the
blood
stained
clothes
of
the
prosecutrix from the home of the
informant on 28.3.2019 and the statement
under Section 164 Cr.P.C. of the victim
was recorded on 30th March, 2019
(Annexure-13 to the petition).
3 All. Mahmood Vs. Union of India & Ors.
305

4. A perusal of the F.I.R. in question
reveals that the informant disclosed that
on 26.3.2019 at about 7:30 P.M. the
younger sister of the informant, namely,
Wasiya, aged about 10 years, had gone to
purchase certain things to Jalalabad Bazar
and when after sufficient time having
elapsed, she did not return back home,
then the informant and his brother Islam
went in search of Wasiya. They reached
the softy shop of one Prakash, who
informed them that a little while ago, a
small girl had come with a boy, who has
purchased softy for her and has taken her
with him. It was also stated that there
were two persons, namely, Altaf son of
Ismail and Mukeem son of Ehsan, both
residents of Jalalabad, who informed that
they had seen the petitioner taking the girl
with him after purchasing a softy. On
receiving the said information, they
searched for the girl here and there and
found her in a bad condition behind the
shop of Sarfaraj Hardware. She was
physically injured and mentally disturbed
with many marks on her face and other
places of her body. On questioning,
Wasiya informed that the petitioner,
whom the girl recognizes, had done
wrong things to her. With the said
allegations, the F.I.R. was lodged against
the petitioner. Thereafter, the informant
gave
a
statement
which
was
in
consonance with the allegations levelled
in the F.I.R. He also stated that when the
girl was brought back home, the wife of
the informant was informed that blood
was coming out of the private parts of the
girl.

5. The Investigating Officer also
recorded the statement of the prosecutrix
Km. Wasiya under Section 161 Cr.P.C.,
wherein she deposed that she was sent for
purchasing
certain
goods
where
Mahmood, the petitioner, met her and
give money to her and purchased a softy
for her and thereafter at a secluded place
assaulted her and on her shouting he left
her. Subsequently, the statement of the
prosecutrix was also recorded under
Section 164 Cr.P.C., wherein she deposed
that the petitioner had done wrong things
to her. She further stated that at about
11:00 A.M. she had gone to the Bazar to
find her sister where the petitioner, under
the pretext of purchasing softy, took her
with him and thrashed her and, after
removing her clothes, did wrong things to
her.

6. To secure detention of the
petitioner under the N.S.A. Act, the
Inspector In-charge of Police Station
Najibabad, District Bijnor, sent a report,
dated 8.5.2019, to the S.P. Bijnor
(Annexure-3 to the petition). In the said
report, besides the details of the aforesaid
offence committed by the petitioner, it
was stated that on account of the said
incident, the public order was disturbed as
the people of the area started sloganeering
and protesting by shutting their shops
against the nature of offence that was
allegedly committed by the petitioner. It
was also reported that on account of the
said incident, the people were closing
their doors and were worried about the
safety of their children and were also
apprehensive in sending their children to
the school. It was also reported that to
control the situation additional force had
to be deployed and people had to be
assured with regard to arrest of the
accused. It was also reported that the said
incident was widely published in the
newspaper on the next date, which
corroborates that there had been adverse
affect on the public order on account of
the said incident. Finally, it was reported
306 INDIAN LAW REPORTS ALLAHABAD SERIES
that the petitioner is in custody at the
District Jail, Bijnor and is trying for his
release on bail; that he has filed a bail
application through his advocate in the
Court of Additional District & Sessions
Judge, Court No. 1/POCSO Court, Bijnor,
which is pending for hearing; and there
the accused is likely to be released on
bail. It was reported that on being free
from the prison, there is all likelihood that
he may commit the offence again which
will disrupt the public order.

7. The Superintendent of Police,
District Bijnor, vide his report dated
16.5.2019 sent to the District Magistrate,
Bijnor (Annexure-6 to the petition) after
repeating what has been reported to him
reported that the petitioner is in custody
in the District Prison and is trying for his
release on bail, for which an application
has been filed through his advocate and if
he is released on bail, then there are all
chances of his repeating similar offences
which are likely to have an adverse affect
on
the
public
order.
Thus
he
recommended petitioner's detention under
the N.S.A. Act.

8. Based upon the said two reports,
District
Magistrate
formulated
the
grounds of detention and proceeded to
pass an order of detention on 20th May,
2019.

9. In the grounds of detention, the
District Magistrate after narrating the
entire incident and what was reported to
him observed that there is all likelihood
of the petitioner being released on bail
and there are chances that on being
released on bail, a similar offence may be
repeated which will have an adverse
affect on the public order.

10. The detention order dated 20th
May, 2019 was duly confirmed by the
State of U.P. vide order dated 29.5.2019
(Annexure-2 to the petition).

11. Counsel for the petitioner has
argued that the petitioner has no criminal
antecedents; that based upon a solitary
incident, the respondent authorities were
not justified in passing the detention
order, as the petitioner is already facing
criminal trial for the offences; that there is
no reason recorded by the District
Magistrate as to on what basis he was
satisfied that the petitioner is likely to be
released on bail; that the incident in
question can in the worst case scenario be
termed as a law and order problem and in
no way can it be treated as to have
disturbed public order; and that there is
no material on record for the District
Magistrate to have been satisfied that on
being released on bail, the petitioner
would commit a similar offence. He has
also argued that as the petitioner was
already under custody there was no valid
reason to passing a detention order. He
has also informed the Court that the bail
application filed by the petitioner and
pending at the time of passing of the
detention order was not pressed and as on
date there is no bail application pending
consideration before any court.

12. Counsel for the petitioner has
extensively relied upon the judgment of
the Apex Court in the cases of Sudhir
Kumar Saha v. The Commissioner of
Police, Calcutta and Ors, AIR 1970 SC
814, Rameshwar Shaw v. District
Magistrate, Burdwan and Ors, AIR
1964 SC 334 and judgment of this Court
in the case of Akhtar Hussain v. Union
of India and Others, judgment dated
3 All. Mahmood Vs. Union of India & Ors.
307
5.12.2018 passed in Habeas Corpus
Writ Petition No. 3547 of 2018.

13. Learned A.G.A. on the other
hand has argued that the offences
committed by the petitioner were so
heinous that they had an adverse affect on
the public order which is described in
detail in the grounds of detention as well
as the report submitted before the District
Magistrate. He has further argued that the
incident in question cannot be treated like
a normal case of rape inasmuch as the
petitioner
was
a
stranger
to
the
prosecutrix and thus offence committed
by him has to be seen keeping in mind the
depravity of the mental state of the
petitioner. He has thus argued that his
release would be detrimental to the public
order. Hence, he has prayed that the
petition be dismissed.

14. Learned A.G.A. placed reliance
on the judgment of the Apex Court in the
case of Arun Ghosh v. State of West
Bengal, AIR 1970 SC 1228 so as to
contend that where activities of a person
are such that it breeds a sense of
insecurity in the mind of girls of the
community at large, the same would
affect public order. The learned A.G.A.
relied on decision of this Court dated
17.09.2019 passed in Habeas Corpus Writ
Petition No. 562 of 2019: Aashif v. State
of U.P. and others so as to contend that
even a solitary incident could form basis
of satisfaction to preventively detain a
person.

15. Considering the submissions
made at the bar as well as on perusal of
the record and on plain reading of the
provisions of the N.S.A. Act, what is to
be seen is whether the offence in question
warranted detention of the petitioner in
exercise of powers under Section 3(2) of
the N.S.A. Act.

16. It is well settled that personal
liberty as guaranteed under Article 21
read with Article 22 of the Constitution of
India is sacrosanct and is at the highest
pedestal of the freedoms guaranteed
under the Constitution of India and the
same can be taken away only as per the
procedure prescribed by law. Section 3(2)
of the N.S.A. Act is as follows:-

"(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. From a plain reading of the
provisions of the Act, it is clear that the
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Central
Government
or
the
State
Government prior to passing of the
detention order has to be satisfied that any
person, if not detained, is likely to act in
any manner which is:-

a. prejudicial to the security of
the State; or

b.
prejudicial
to
the
maintenance of the public order; or

c. prejudicial to the maintenance
of supply and services essential to the
community.

18. Now, we shall consider the
various precedents cited at the Bar.

19. The Hon'ble Apex Court in the
case of Arun Ghosh (Supra) while
deciding the question of validity of a
detention order passed in the case of a
person who was facing charges on the
grounds such as anti social activities
including rioting, assault and undue
harassment of respectable young ladies in
the public street of Malda town, having
been made accused of doing such acts on
as many as eight occasions, proceeded to
observe as under:-

"An
act
by
itself
is
not
determinant of its own gravity. In its
quality it may not differ from another but
in its potentiality it may be very different.

Take the case of assault on
girls. A guest at a hotel may kiss or make
advances to half a dozen chamber maids.
He may annoy them and also the
management but he does not cause
disturbance of public order. He may even
have a fracas with the friends of one of
the girls but even then it would be a case
of breach of law and order only. Take
another case of a man who molests
women in lonely places. As a result of his
activities girls going to colleges and
schools are in constant danger and fear.
Women going for their ordinary business
are
afraid
of
being
waylaid
and
assaulted. The activity of this man in its
essential quality is not different from the
act of the other man but in its potentiality
and in its affect upon the public
tranquillity there is a vast difference. The
act of the man who molests the girls in
lonely places causes a disturbance in the
even tempo of living which is the first
requirement of public order. He disturbs
the society and the community. His act
makes all the women apprehensive of
their honour and he can be said to be
causing disturbance of public order and
not merely committing individual actions
which may be taken note of by the
criminal prosecution agencies.

It means therefore 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 the society."

20. The Apex Court further recorded
that all the acts of molestation were
directed against the family of one person
and not against the women in general
from the locality and even the assaults
were individual and after recording that
the conduct may be reprehensible but it
does not add up to the situation where it
may be said that the community at large
was being disturbed proceeded to quash
the detention order.

21. The Apex Court relying on the
earlier judgment of Dr. Ram Manohar
Lohiya v. State of Bihar, 1966 CrLJ 608
held that whether an ''act' has adversely
affected the ''public order' is to be
determined in the facts of each case.
3 All. Mahmood Vs. Union of India & Ors.
309

22. The learned counsel for the
petitioner has argued that the present case
is based upon a solitary incident and by
no stretch of logic can it be said that the
said act would affect the community at
large.

23. The next decision relied upon by
the counsel for the petitioner is in the case
of Akhtar Hussain (Supra). In the said
case, the detention order was passed
against a person who was a Gram
Pradhan and had assaulted a young girl in
connection with which an F.I.R. was
registered against the said Gram Pradhan
under Sections 376, 452, 506, 504 I.P.C.
and Section 3 /4 POCSO Act. In
pursuance of the said F.I.R., a detention
order was passed under N.S.A. Act. It
was argued before the Court that it was a
case of solitary incident and there was
nothing on record to show that the
detaining authority had applied its mind
with regard to the criminal antecedents of
the accused. It was also argued that the
detaining authority erred while recording
the satisfaction that there was a likelihood
of the petitioner being released on bail
and on release would again indulge in
similar offences affecting the public
order. The Court after considering the
submissions made before it, by relying
upon the judgments of the Apex Court in
the cases of Shashi Agarwal v. State of
U.P. and others, 1988 (1) SCC 436 and
Rameshwar
Shaw
v.
District
Magistrate, Burdwan & another, AIR
1964 SC 334 and also judgments of this
Court in Habeas Corpus Writ Petition
No. 55685 of 2017, Haji Akhlakh vs.
Union of India and others (decided on
30.3.2018);
Habeas
Corpus
Writ
Petition No. 3094 of 2018, Istakaar and
Another vs. Union of India and others
(decided on 4.9.2018); and Habeas
Corpus Writ Petition No. 3181 of 2018,
Sudhir vs. Union of India and others
(decided on 8.10.2018), observed as
under:-

"We are constrained to observe
that
no
material
justifying
the
apprehension that detenue would indulge
in prejudicial activities in case of his
being released on bail was placed before
the respondent no.3. In our opinion the
bald statement made in the grounds of
detention that the petitioner upon being
released on bail would repeat his
criminal activities prejudicially affecting
the maintenance of public order, was not
enough to justify passing of an order of
preventive detention against him. We
stand fortified in our view by the law laid
down by the Apex Court in the case of
Shashi Agarwal Vs. State of U.P. and
others reported in 1988 (1) SCC 436 and
Rameshwar
Shaw
Vs.
District
Magistrate,
Burdwan
&
another
reported in AIR 1964 SC 334."

24. The Court had also considered
the judgment of the Apex Court in the
case
of
Dharmendra
Suganchand
Chelawat & Suganchand Kanhaiyyalal
vs. Union of India, AIR 1990 SC 1196,
wherein it was held that to detain a person
already in jail the detention order must
pass the following tests: (i) that the
detaining authority was aware of the fact
that the detenue is already in detention;
and (ii) that there were compelling
reasons justifying such detention despite
the fact that the detenue is already in
detention. The expression "compelling
reasons" in the context of making an
order of detention with regard to a person
already in custody implies that there must
be cogent material before the detaining
authority on the basis of which it has to
310 INDIAN LAW REPORTS ALLAHABAD SERIES
be satisfied that (a) the detenue is likely to
be released from custody in near future
and (b) taking into account the nature of
the antecedent activities of the detenue, it
is likely that after his release from
custody he would indulge in prejudicial
activities and it is necessary to detain him
in order to prevent him from engaging in
such activities. In Akhtar Hussain's case
(supra) this Court on the basis of material
on record found that there was nothing to
hold that there was any likelihood of the
petitioner, after release on bail, indulge in
prejudicial activities affecting the public
order. Thus, the detention order, which
was based on a solitary case, was
quashed. .

25. The next judgment referred to
buttress the argument is the judgment of
this Court in the case of Kumail (Supra)
wherein this Court, while dealing with a
detention order passed against a person
who was already in judicial custody, upon
a conspectus of case laws culled out the
legal principles as under:

"A conspectus of the decisions
of the apex court noticed above would
show that the law is 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 a real possibility of his being released
on bail, and (b) that on being so released
he would in all probability indulge in
prejudicial activity and (3) if it is felt
essential to detain him to prevent him
from so doing. If the authority passes an
order after recording his satisfaction in
this behalf, such an order cannot 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 it before a higher court. The
reason to believe that there is likelihood
or real possibility of the person being
released on bail must be based on cogent
material and not mere ipse dixit of the
authority. Such satisfaction can be drawn
on the basis of reports of the sponsoring
authority, the nature of the offence(s) in
connection with which the detenu is in jail
as also the facts and circumstances of
that case including grant of bail to coaccused or general practice of courts in
such matters. But once challenge is laid
with
regard
to
existence
of
such
satisfaction, then the detaining authority
in its return / affidavit must disclose
existence of such satisfaction and the
materials on the basis of which it has
been drawn. However, if in the return it is
demonstrated that satisfaction was drawn
and there existed material to draw such
satisfaction, the same cannot ordinarily
be interfered with on the ground of
insufficiency of material."

26. After noticing the legal position,
the Court proceeded to quash the
detention order.

27. The next case cited at the bar is
the judgment in the case of Aashif
(Supra) wherein this Court after noticing
the decision of the nine-judges Bench of
the Apex Court in the case of Attorney
General
For
India
v.
Amratlal
Prajivandas and others, 1994 (5) SCC 54
as well as the case of Surya Prakash
Sharma v. State of U.P. and Others,
1994 (Supp.) (3) SCC 195 on the issue as
to when on the basis of solitary case a
detention order may be justified, held as
under:-
3 All. Mahmood Vs. Union of India & Ors.
311

"From the decisions noticed
above, what is clear is that though
ordinarily a solitary act may not be
sufficient to sustain an order of preventive
detention but where that act is of such a
nature that it is reflective of, or has
manifestation of, an organized criminal
activity, or is so grave that it reflects the
propensity of that person to repeat such
an act, then even a solitary act could well
be made basis for passing an order of
preventive detention."

28. In another case, the Hon'ble
Supreme Court while considering the
validity of detention order in a case where
person is already in custody, in the case
of Huidrom Konungjao Singh v. State of
Manipur and Others, (2012) 7 SCC 181,
placing reliance on earlier judgment in the
case of Rekha v. State of T.N., held as
under:-

"9. In view of the above, it
can be held that there is no prohibition in
law to pass the detention order in respect
of a person who is already in custody in
respect of criminal case. However, if the
detention
order
is
challenged
the
detaining authority has to satisfy the
Court the following facts:

(1) The authority was fully aware of
the fact that the detenu was actually in
custody.

(2) There was reliable material
before the said authority on the basis of
which it could have reasons to believe
that there was real possibility of his
release on bail and further on being
released he would probably indulge in
activities which are prejudicial to public
order.

(3) In view of the above, the
authority felt it necessary to prevent him
from indulging in such activities and
therefore, detention order was necessary.

In case either of these facts
does not exist the detention order would
stand vitiated. The present case requires
to be examined in the light of the
aforesaid settled legal proposition.

12. In Rekha v. State of T.N.
[(2011) 5 SCC 244 : (2011) 2 SCC (Cri)
596] this Court while dealing with the
issue held: (SCC pp. 250-51 & 254-55,
paras 7, 10 & 27)

"7. A perusal of the above
statement in Para 4 of the grounds of
detention shows that no details have been
given about the alleged similar cases in
which bail was allegedly granted by the
court concerned. Neither the date of the
alleged bail orders has been mentioned
therein, nor the bail application number,
nor whether the bail orders were passed
in respect of the co-accused on the same
case, nor whether the bail orders were
passed in respect of other co-accused in
cases on the same footing as the case of
the accused. ...

* * *

10. In our opinion, if details are
given by the respondent authority about
the alleged bail orders in similar cases
mentioning the date of the orders, the bail
application number, whether the bail
order was passed in respect of the coaccused in the same case, and whether
the case of the co-accused was on the
same footing as the case of the petitioner,
then, of course, it could be argued that
there is likelihood of the accused being
released on bail, because it is the normal
practice of most courts that if a coaccused has been granted bail and his
case is on the same footing as that of the
petitioner, then the petitioner is ordinarily
granted bail. ... A mere ipse dixit
statement in the grounds of detention
312 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot sustain the detention order and
has to be ignored.

* * *

27. In our opinion, there is a
real possibility of release of a person on
bail who is already in custody [Ed.:
Matter between two asterisks emphasised
in original as well.] provided he has
moved a bail application which is
pending
[Ed.:
Matter
between
two
asterisks emphasised in original as well.]
. 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."

(emphasis added)

Thus, it is evident from the
aforesaid judgment that it is not the
similar case i.e. involving similar offence.
It should be that the co-accused in the
same offence is enlarged on bail and on
the basis of which the detenu could be
enlarged on bail.

15. In the instant case, admittedly,
the said bail orders do not relate to the
co-accused in the same case. The accused
released in those cases on bail had no
concern with the present case. Merely,
because somebody else in similar cases
had been granted bail, there could be no
presumption that in the instant case had
the detenu applied for bail could have
been released on bail. Thus, as the detenu
in the instant case has not moved the bail
application and no other co-accused, if
any, had been enlarged on bail, resorting
to the provisions of the Act was not
permissible. Therefore, the impugned
order of detention is based on mere ipse
dixit statement in the grounds of detention
and cannot be sustained in the eye of the
law."

29. In yet another case, a threejudges bench of the Hon'ble Apex Court
in its judgment, reported in (2012) 2 SCC
176, Yumman Ongbi Lembi Leima v.
State of Manipur and others, proceeded
to hold as under:-

"6. On a perusal of the grounds
of detention, it is clear that the subjective
satisfaction of the detaining authority is
founded on the belief that after having
availed of the bail facility, the appellant's
husband could indulge in commission of
further
prejudicial
activities.
An
alternative
preventive
measure
was,
therefore, immediately needed in the
circumstances.

23. Having carefully considered
the submissions made on behalf of the
respective parties, we are inclined to hold
that the (sic exercise of) extraordinary
powers of detaining an individual in
contravention of the provisions of Article
22(2) of the Constitution was not
warranted in the instant case, where the
grounds of detention do not disclose any
material which was before the detaining
authority, other than the fact that there
was
every
likelihood
of
Yumman
Somendro being released on bail in
connection with the cases in respect of
which he had been arrested, to support
the order of detention.

24.
Article
21
of
the
Constitution enjoins that:

"21. Protection of life and
personal liberty.--No person shall be
3 All. Mahmood Vs. Union of India & Ors.
313
deprived of his life or personal liberty
except
according
to
procedure
established by law."

In the instant case, although the
power is vested with the authorities
concerned, unless the same are invoked
and implemented in a justifiable manner,
such action of the detaining authority
cannot be sustained, inasmuch as, such a
detention order is an exception to the
provisions of Articles 21 and 22(2) of the
Constitution.

25.
When
the
courts
thought it fit to release the appellant's
husband on bail in connection with the
cases in respect of which he had been
arrested, the mere apprehension that he
was likely to be released on bail as a
ground of his detention, is not justified.

26. In addition to the
above, the FIRs in respect of which the
appellant's husband had been arrested
relate to the years 1994, 1995 and 1998
respectively,
whereas
the
order
of
detention was passed against him on 311-2011, almost 12 years after the last FIR
No. 190(5)98 IPS under Section 13 of the
Unlawful Activities (Prevention) Act.
There is no live link between the earlier
incidents and the incident in respect of
which the detention order had been
passed.

27. As has been observed in various
cases of similar nature by this Court, 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. An
individual incident of an offence under
the Penal Code, however heinous, is
insufficient to make out a case for
issuance of an order of preventive
detention.
28. In our view, the detaining authority
acted rather casually in the matter in
issuing the order of detention and the
High Court also appears to have missed
the right to liberty as contained in Article
21 of the Constitution and Article 22(2)
thereof, as well as the provisions of
Section 167 of the Code of Criminal
Procedure."

30. The Hon'ble Supreme Court
further in the case of (2012) 2 SCC 386,
Munagala Yadamma v. State of Andhra
Pradesh and Others held as under:-

"7.
Having
considered
the
submissions made on behalf of the
respective parties, we are unable to
accept the submissions made on behalf of
the State in view of the fact that the
decision in Rekha case [(2011) 5 SCC
244 : (2011) 2 SCC (Cri) 596] , in our
view, clearly covers the facts of this case
as well. The offences complained of
against the appellant are of a nature
which can be dealt with under the
ordinary law of the land. Taking recourse
to the provisions of preventive detention
is
contrary
to
the
constitutional
guarantees enshrined in Articles 19 and
21 of the Constitution and sufficient
grounds have to be made out by the
detaining authorities to invoke such
provisions."

31. On the basis of the judgments
cited above, what is to be considered is
314 INDIAN LAW REPORTS ALLAHABAD SERIES
whether the preventive detention of the
petitioner under National Security Act
was justified considering the fact that the
petitioner was already in detention. A
close perusal of the reasons for detention
does not reveal that there was any
material before the District Magistrate
except the bail application (Annexure-61
to the grounds of detention) to record a
satisfaction that the petitioner was likely
to be released on bail. The reasons for
detention do not disclose any application
of mind keeping in view the fact that the
petitioner did not have any criminal
antecedents except for this solitary case,
in which the petitioner was an accused.
As to how the District Magistrate could
record a satisfaction that the petitioner if
enlarged on bail is likely to repeat the
offence of the nature of which the
petitioner is accused, adversely affecting
the public order, is any body's guess.

32. The propensity of a person
repeating the offence can be gathered
either by criminal antecedents or on some
other material showing the propensity of
the accused to commit or repeat an
offence. We are afraid no such material
existed on record before the District
Magistrate leading to an inference or
justifying the satisfaction that detenue if
released on bail shall indulge in similar
act.

33. In the present case although the
District Magistrate has recorded that the
petitioner is likely to be released on bail
but there is no material as to how the said
finding was recorded when only the bail
application was before him. There was no
material
placed
before
the
District
Magistrate either by the Superintendent of
Police or the Inspector except their
opinion which cannot be said to be
''material' enough to form a subjective
satisfaction, particularly, when offences
in respect of sexual assault punishable
under POCSO Act are considered very
serious and bail is not ordinarily granted
in such cases. Although, the District
Magistrate has recorded that if the
petitioner is enlarged on bail, there is
likelihood of the petitioner indulging in
similar
offences
thereby
adversely
affecting the public order, but there is no
material on record to justify the said
satisfaction as the petitioner did not have
any criminal antecedents and there was no
other report on record to indicate the
propensity of the petitioner for repeating
the offence of the nature for which he was
accused and facing trial.

34. On the consideration of the law
as extracted above as well as the material
placed before us, we have no hesitation in
holding that the detention order passed by
the District Magistrate does not satisfy the
test as laid down by the Apex Court and
the rigours of law which are required to
be established before taking a decision of
preventive detention. The detention order
is thus liable to be quashed.

35. The habeas corpus petition is
allowed and the detention order dated
20th May, 2019 is quashed. The petitioner
shall be released forthwith unless wanted
in any other case.
----------

(2019)11ILR A314

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE PANKAJ BHATIA, J.