# Mohd. Faiyyaz Mansuri v. Union Of India & Ors

- **Citation:** (2021) 9 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** Habeas Corpus No. 23475 of 2020
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-faiyyaz-mansuri-v-union-of-india-ors-47401
- **Pages:** 14

## Headnote

(A) Habeas Corpus - National Security Act,
1980 - Section 3 (2) - Order of detention ,
Section 3(4) - Order of approval , Section
8 - Grounds of order of detention to be
disclosed to persons affected by the order
- Section 10 - Reference to Advisory board
, Section 11 - Procedure of Advisory Board
, Section 12(1) - Order of confirmation -
Indian Penal Code, 1860 - Sections 153A,
292, 505 (2), 506, 509, 295-A - The
Information
Technology
(Amendment)
Act, 2008 - Section 67 , Indian Evidence
Act, 1872 - Section 65-B - Constitution of
India
-
Article
21,22
-
preventive
detention is not punitive but preventive -
resorted to with a view to prevent a
person
from
committing
activities
regarded as prejudicial to certain objects
that the law of preventive detention seeks
to prescribe - Preventive detention is,
thus, based on suspicion or anticipation
and not on proof - Court not a proper
forum
to
scrutinize
the
merits
of
administrative decision to detain a person.
(Para -25 )

Posting of derogatory message on the Facebook
wall by Petitioner/detenue - indecent comment
on God and Goddess - hurt sentiments of Hindu
Community - tried to increase religious fervor
and threatened to kill - disturb the peace in the
area - detenue/petitioner arrested - Petition
filed by detenue/petitioner through his next
friend/brother - challenging the order of
detention passed by the District Magistrate ,
order of approval and confirmation passed by
Government of Uttar Pradesh under provision of
the N.S.A. - State Government extended
detention of the detenue/ petitioner - further
period of six months from the date of detention
by means of amendment.(Para - 1,9)

HELD:-
Activities
relied
upon
by
the
Detaining Authority to come to the conclusion
that in order to prevent the petitioner from
acting in any manner prejudicial to the
maintenance of public order, it became
necessary to pass order for detention of the
detenue/petitioner, cannot be said to be mere
disturbance of law and order. Plea of the
detenue/petitioner that there is delay in
forwarding the petitioner's representation on
the part of the respondent no.1 (Union of
India), has substance and on this count alone,
the impugned detention order is liable to be
quashed. (Para - 27,34)

Habeas corpus petition allowed.(E-7)

List of Cases cited:-

## Text

_Characters 0–39,958 of 48,727. This is a partial read: ask again with offset=39958 for what follows._

806 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)09ILR A806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.09.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Habeas Corpus No. 23475 of 2020

Mohd. Faiyyaz Mansuri ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Rajendra Kumar Dwivedi, Harish Pandey,
Sushil Kumar Singh

Counsel for the Respondents:
G.A., A.S.G.,Pooja Singh

(A) Habeas Corpus - National Security Act,
1980 - Section 3 (2) - Order of detention ,
Section 3(4) - Order of approval , Section
8 - Grounds of order of detention to be
disclosed to persons affected by the order
- Section 10 - Reference to Advisory board
, Section 11 - Procedure of Advisory Board
, Section 12(1) - Order of confirmation -
Indian Penal Code, 1860 - Sections 153A,
292, 505 (2), 506, 509, 295-A - The
Information
Technology
(Amendment)
Act, 2008 - Section 67 , Indian Evidence
Act, 1872 - Section 65-B - Constitution of
India
-
Article
21,22
-
preventive
detention is not punitive but preventive -
resorted to with a view to prevent a
person
from
committing
activities
regarded as prejudicial to certain objects
that the law of preventive detention seeks
to prescribe - Preventive detention is,
thus, based on suspicion or anticipation
and not on proof - Court not a proper
forum
to
scrutinize
the
merits
of
administrative decision to detain a person.
(Para -25 )

Posting of derogatory message on the Facebook
wall by Petitioner/detenue - indecent comment
on God and Goddess - hurt sentiments of Hindu
Community - tried to increase religious fervor
and threatened to kill - disturb the peace in the
area - detenue/petitioner arrested - Petition
filed by detenue/petitioner through his next
friend/brother - challenging the order of
detention passed by the District Magistrate ,
order of approval and confirmation passed by
Government of Uttar Pradesh under provision of
the N.S.A. - State Government extended
detention of the detenue/ petitioner - further
period of six months from the date of detention
by means of amendment.(Para - 1,9)

HELD:-
Activities
relied
upon
by
the
Detaining Authority to come to the conclusion
that in order to prevent the petitioner from
acting in any manner prejudicial to the
maintenance of public order, it became
necessary to pass order for detention of the
detenue/petitioner, cannot be said to be mere
disturbance of law and order. Plea of the
detenue/petitioner that there is delay in
forwarding the petitioner's representation on
the part of the respondent no.1 (Union of
India), has substance and on this count alone,
the impugned detention order is liable to be
quashed. (Para - 27,34)

Habeas corpus petition allowed.(E-7)

List of Cases cited:-

1. Lahu Shrirang Gatkal Vs St. of Mah. through
the Secretary & ors. , (2017) 13 SCC 519

2. Rajammal Vs St. of T.N. & anr. , (1991) 1
SCC 417

3. Mohinuddin @ Moin Master Vs D.M., Beed ,
AIR 1987 SC 1977

4. Satyapriya Sonkar Vs Superintendent,
Central Jail ,2000 Cr.L.J. Allahabad (D.B)

5. Kundanbhai Dulabhai Shaikh Vs D.M.,
Ahmedabad , 1996 (3) SCC 194

6. K.M. Abdulla Kunhi Vs U.O.I. , (1991) 1 SCC
476

7. Harish Pahwa Vs St. of U.P. & ors. , A.I.R.
1981 SC 1126
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
807
8. St. of U.P. Vs Sanjay Pratap Gupta ,2004 (8)
SCC 591

9. Ramji Lal Modi Vs St. of U.P., AIR 1957 (SC)
620

10. Gulam Abbas & ors. Vs St. of U.P. & ors. ,
1984 (1) SCC 81)

11. Rakesh Singh Vs U.O.I. & 3 ors. , 2021
Law Suit (All 159)

12. Naresh Kumar Goyal Vs U.O.I. & ors. ,
(2005) 8 SCC 276

13. U.O.I. & anr. Vs Dimple Happy Dhakad, AIR
2019 SC 3428

14. Secretary to Government of Tamil Nadu
Public (Law & Ordre) Revenue Department &
ors. Vs Kamala & ors. , (2018) 5 SCC 322

15. State of Maharashtra & ors. Vs Balu S/o
Waman Patole ,Criminal Appeal No. 1681 of
2019

16. T. Devaki Vs Govt. of T.M. & ors. , 1990 (2)
SCC 456

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The instant writ petition under
Article 226 of the Constitution of India has
been filed by the detenue/petitioner, Mohd.
Faiyyaz
Mansuri,
through
his
next
friend/brother Mohd. Siraj, challenging the
order of detention dated 17.09.2020 passed
by the District Magistrate, Lakhimpur
Kheri under Section 3 (2) of the National
Security Act, 1980 (hereinafter referred to
as "N.S.A."), the order of approval dated
25.09.2020 passed by the Under Secretary,
Home
(Confidential)
Department,
Government of Uttar Pradesh under Section
3(4) of the N.S.A. and the order of
confirmation dated 28.10.2020 passed by
the Under Secretary, Home (Confidential)
Department, Government of Uttar Pradesh
under Section 12(1) of the N.S.A.

(2) During pendency of the instant
writ petition, the State Government has
extended the detention of the detenue/
petitioner for a further period of six months
from the date of detention i.e. 17.09.2020,
vide order dated 08.12.2020, which is also
challenged by the detenue/petitioner by
means of amendment.

(3) The prejudicial activities of the
petitioner/detenue
impelling
the
third
respondent (District Magistrate, Lakhimpur
Kheri) to clamp the impugned detention
order against him are contained in grounds
of detention. Facts relating to the detention
of the detenue/petitioner as given in the
grounds
of
detention
(Annexure
8)
accompanying the impugned detention
order 17.09.2020 are that one Sagar
Kapoor, s/o Brijesh Kapoor, resident of
Bazarganj, Police Station Mohammadi,
District Kheri made a written report to the
effect that on 05.08.2020, at 8:39 P.M., the
detenue/petitioner had posted provocative
post with the intention of provoking the
sentiments of Hindu society through his
Facebook I.D., to which one Samreen Bano
made indecent comment on 5.8.2020,
which was supported by Mohd. Arif,
Mohd. Shadab and other three-four persons
by attacking the Hindu religious sentiments
and tried to increase religious fervor and
threatened to kill and also tried to disturb
the peace in the area. On the basis of the
said written report, F.I.R. No. 0595 of
2020, under Sections 153A, 292, 505 (2),
506, 509 I.P.C. and 67 of the Information
Technology (Amendment) Act, 2008, at
Police Station Mohammadi, District Kheri
was registered on 06.08.2020 at 12:46 P.M.
During the investigation, Sections 292/509
I.P.C. were dropped, however, Section 295A I.P.C. was added. On 08.08.2021, the
detenue/
petitioner
was
arrested
in
connection with the aforesaid F.I.R. and
808 INDIAN LAW REPORTS ALLAHABAD SERIES
sent to jail. The said incident was published
in daily newspaper ''Hindustan' and ''Amar
Ujala'. On account of the act of the
detenue/petitioner in posting inflammatory
post of offending material through his
facebook, various Hindu organizations and
local persons were angry and gathered in
the area and raised slogans against the
inflammatory post of offending material
and also blocked the road, because of
which, the flow of normal life, peace and
discharge
were
disturbed
and
the
atmosphere of the area was very tense.
After deploying the additional police force
and after serious efforts, the public order
could be restored.

(4) It has also been mentioned in the
grounds that the detenue/ petitioner was
confined to Jail but his Pairokars were
trying for his release on bail and in this
regard, a bail application on behalf of the
detenue/petitioner was filed before the
Additional
Chief
Judicial
Magistrate,
Outline Court, Mohammadi, Kheri, which
was rejected by the Court on 08.09.2020.
Subsequently, again a bail application on
behalf of the detenue/petitioner was filed
before the Sessions Court, Kheri, on which
18.09.2021
was
fixed
for
hearing.
Therefore, there was a possibility that the
detenue/petitioner if released on bail, shall
again indulge in similar crime, which shall
be prejudicial to the maintenance of the
public order. Further, there is strong
possibility for violence between two
communities, which could disturb the
public order. It has further been stated that
on the basis of the aforesaid incident, the
detaining authority felt satisfied that in
order to prevent the detenue/petitioner from
acting in any manner prejudicial to the
maintenance of public order, it became
necessary to pass orders for detention of the
petitioner. The detenue/petitioner was also
informed that he has a right to make a
representation under Section 8 of the
N.S.A. to the detaining authority and the
State
Government
through
the
Jail
Superintendent. In respect of Sections 9
and 10 of the N.S.A., he was also informed
that he may also move a representation to
the
Chairman,
U.P.
Advisory
Board
(Detention) through Jail Superintendent. He
was further informed that he may also
make a representation to the Central
Government through Superintendent of the
Jail.

(5) The detention order along with the
grounds of detention dated 17.09.2020 was
served to the petitioner/detenue on 17.09.2020.
The true copy of the detention order and the
grounds of detention have been annexed as
Annexure no.1 and 8, respectively, to the writ
petition. The impugned order of detention was
approved by the State Government on
25.09.2020 under Section 3 (4) of the N.S.A.
and communicated to the petitioner on
26.09.2020. On 25.09.2020, the order of
detention, grounds of detention and all other
relevant papers received from the District
Magistrate, Lakhimpur Kheri were sent to the
Central Government under Section 3 (5) of the
N.S.A. by
the
State
Government.
On
28.10.2020,
the
State
Government
had
confirmed the order of detention dated
17.09.2020 under Section 12 (1) of the N.S.A
for a period of three months tentatively from the
date of his actual detention under N.S.A. i.e.
w.e.f. 17.09.2020. On 28.09.2020, the case of
the detenue/petitioner was referred to the U.P.
Advistory Board (Detention), Lucknow. On
29.09.2020,
the
detenue/petitioner
has
submitted his representation to the District
Magistrate,
Lakhimpur
Kheri,
Secretary
(Home), State of U.P., Lucknow and Secretary,
Ministry of Home Affairs, Government of
India, New Delhi and the U.P. Advisory Board
(Detention), Lucknow, to the Superintendent,
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
809
District Jail, Lakhimpur Kheri, who, vide letter
dated 29.09.2020 forwarded the petitioner's
representation dated 29.09.2020, to the District
Magistrate, Lakhimpur Kheri. On 01.10.2020,
the District Magistrate, Lakhimpur Kheri had
sent the detenue/petitioner's representation
dated
29.09.2020
along
with
para-wise
comments to the State Government, which was
received by the State Government on
05.10.2020.
On
06.10.2020,
the
State
Government
has
sent
the
petitioner's
representation dated 29.09.2020 along with
parawise comments to the Central Government,
New Delhi and the U.P. Advisory Board
(Detentions), Lucknow vide separate letters
dated 06.10.2020, which was received by the
Central Government, Ministry of Home
Affairs, New Delhi on 12.10.2020. On
08.10.2020, the State Government rejected
detenue/
petitioner's
representation
dated
29.09.2020, which was communicated to the
detenue/petitioner
on
09.10.2020.
On
22.10.2020,
the
U.P.
Advisory
Board
(Detention), Lucknow examined the matter and
also heard the detenue/petitioner in person.
Opinion
of
the
U.P.
Advisory
Board
(Detention), Lucknow dated 23.10.2020 was
received by the State Government on
26.10.2020. The State Government, thereafter,
considered the matter again and confirmed the
detention of the detenue/petitioner for a further
period of three months tentatively by the order
dated
28.10.2020,
which
was
duly
communicated to the detenue/petitioner on
28.10.2020. On 13.11.2020, the Central
Government, Ministry of Home Affairs, New
Delhi
rejected
the
detenue/petitioner's
representation dated 29.09.2020, which was
communicated to the detenue/ petitioner on
17.11.2020 through wireless message.

(6)

Feeling
aggrieved
by
the
aforesaid, the detenue/petitioner has filed
the instant habeas corpus petition through
his next friend/brother Mohd. Siraj, with
the prayer, as mentioned in paragraph-1
herein-above.

(7) During pendency of the instant
habeas
corpus
petition,
the
State
Government, vide order dated 08.12.2020,
extended the period of detention for a
further period of three months, which has
been challenged by the detenue/petitioner
by means of the amendment in the instant
habeas corpus petition. On 12.03.2021, the
State Government again extended the
period of detention for further three months
and
then
on
03.06.2021
the
State
Government
extended
the
period
of
detention for further three months, but it
transpires
from
the
record
that
the
extension order dated 12.03.2021 and
03.06.2021 has not been challenged by the
detenue/petitioner in the instant habeas
corpus petition.

(8) Heard Sri Sushil Kumar Singh,
learned Counsel for the detenue/petitioner,
Ms. Pooja Singh, learned Counsel for the
Union of India/respondent no.1 and Sri
S.N. Agnihotri, learned Additional Chief
Standing Counsel for the State/respondents
no. 2 to 4 and perused the material brought
on record.

(9) Challenging the impugned order
of detention as well as consequential
orders, Mr. Sushil Kumar Singh, learned
Counsel for the detenue/petitioner has
argued that it has been alleged in the F.I.R.
No. 0595 of 2020 registered against the
detenue/
petitioner
at
Police
Station
Mohammadi,
District
Kheri
that
the
petitioner/detenue
had
posted
one
derogatory message on the Facebook wall
through his I.D., on which one Samreen
Bano had made indecent comment on God
and Goddess of the Hindu community. It
has also been alleged in the F.I.R. that
810 INDIAN LAW REPORTS ALLAHABAD SERIES
some other people, namely, Mohd. Arif,
Mohd. Shadab and 3-4 other persons have
also hurt the sentiments of the Hindu
Community. The detenue/petitioner was
arrested in connection with the aforesaid
F.I.R. on 08.08.2020. He argued that the
police, while registering the F.I.R. and
implicating the detenue/petitioner in the
said incident, could not verify and identify
the verification report from Facebook
Company to ascertain the fact that by
which
mobile
I.M.E.I.
number,
the
offending
material
was
uploaded
on
Facebook as mandated under Section 65-B
of the Indian Evidence Act. He also argued
that the police has filed the charge-sheet
against
the
detenue/petitioner
in
the
aforesaid F.I.R without verifying the
factum or collected evidence as mandated
under Section 65-B of the Indian Evidence
Act to connect a person with information
technology crime. He also argued that in
the F.I.R., four persons were named as
accused and the main person, namely,
Samreen Bano, who is allegedly said to
have made abusive comments, has not been
arrested till date and similarly, Mohd. Arif,
Mohd. Shadab have also not been arrested
by the police, which clearly establishes that
it was not a stringent situation inasmuch as
there was no reason to invoke the stringent
provisions of N.S.A. by the District
Magistrate
solely
against
the
detenue/petitioner.
He
argued
that
subjective satisfaction of the detaining
authority is vitiated as the impugned order
of detention has been passed on irrelevant
facts which have been considered in the
impugned order and there was no public
order situation but it may be only a normal
law and order situation, if any.

(10) Learned Counsel for the detenue
/petitioner has further submitted that the
extension
orders
dated
08.12.2020,
12.03.2021, 03.06.2021 were passed on the
basis of the beat report of the Constable,
who manufactured and created it without
any substantive piece of evidence that who
were the persons feeling apprehensive
about the release of the detenue /petitioner.
His submission is that artificial beat report
by Station House Officer dated 02.12.2020
has been made the basis for the grant of
extension, which is not sustainable in the
eyes of law for want of basic material for
extension. He pointed out that the first
extension order dated 08.12.2020 was not
supplied to the detenue/petitioner, hence
the valuable right of the detenue /petitioner
as guaranteed under Article 22 (5) of the
Constitution of India has been infringed
rendering the continued detention of the
petitioner to be illegal. He submits that
when the extension order dated 08.02.2021
has been filed by the District Magistrate,
Lakhimpuer Kheri through supplementary
counter
affidavit,
then,
the
detenue/petitioner
has
challenged
the
second
extension
order
by
way
of
amendment
application.
He
further
submitted that the petitioner /detenue was
detained under N.S.A on 17.12.2020
without
being
informed
about
any
extension order, however, when the Court
intervened in the matter, the order of
extension dated 08.12.2020 was supplied to
the detenue/petitioner on 19.02.2021 by the
Jail
Authorities
and
further
the
supplementary counter affidavit was filed
by annexing the order on 22.02.2021.

(11) Learned Counsel for the
detenue/petitioner has argued that the
proviso to Section 3 (2) of the N.S.A.
provides that no order passed under Section
3 (2), shall, in the first instance, exceed six
months and if the State Government is
satisfied that the order is required to be
passed for a further period, it may extend
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
811
the period of detention by such period not
exceeding three months at any one time and
in no case, the period of detention would
exceed the period of 12 months in total. He
argued that in the present case, perusal of
the impugned order of detention dated
17.09.2020
passed
by
the
detaining
authority as well as impugned order of
affirmation
passed
by
the
State
Government dated 25.09.2020 reveals that
it does not specify the period for which
detention has been ordered and, therefore,
in view of the ratio laid down by the Apex
Court in Lahu Shrirang Gatkal Vs. State
of Maharashtra through the Secretary
and others : (2017) 13 SCC 519, the
impugned
detention
order
and
consequential order are illegal and the same
are liable to be quashed.

(12) The next submission of the
learned Counsel for the detenue/petitioner
is that there was undue delay in the
disposal of the representation of the
detenue/petitioner on the part of the Central
Government, Ministry of Home Affairs,
New Delhi as the petitioner's representation
dated 29.09.2020 was received by the
Central Government on 12.10.2020 but it
was rejected on 13.11.2020 i.e. after one
month and the said order rejection dated
13.11.2020 was communicated to the
petitioner through wireless message on
17.11.2020 i.e., after four days from the
date of passing the order of rejection. He
argued
that
there
is
no
plausible
explanation in deciding the petitioner's
representation
after
one
month
and
communicating the same to the petitioner
after four days. He argued that delay and
latches
committed
by
the
Central
Government
in
considering
the
detenue/petitioner's
representation
has
infringed fundamental rights of the detenue
enshrined under Articles 21 and 22 (5) of
the Constitution of India. He argued that on
this count alone, the impugned order of
detention is liable to be quashed.

(13) To strengthen his submission,
learned Counsel for the detenue/ petitioner
has placed reliance upon Rajammal Vs.
State of Tamil Nadu and another : (1991)
1 SCC 417, Mohinuddin @ Moin Master
Vs. District Magistrate, Beed : AIR 1987
SC
1977,
Satyapriya
Sonkar
Vs.
Superintendent, Central Jail : 2000
Cr.L.J. Allahabad (D.B), Kundanbhai
Dulabhai Shaikh Vs. Distt. Magistrate,
Ahmedabad : 1996 (3) SCC 194, K.M.
Abdulla Kunhi Vs. Union of India :
(1991) 1 SCC 476 and Harish Pahwa Vs.
State of Uttar Pradesh & others : A.I.R.
1981 SC 1126.

(14) While supporting the impugned
order of detention and the impugned
consequential orders, learned Additional
Government Advocate appearing on behalf
of the State/respondents No. 2 to 4 has
vehemently argued that the complete
procedure as provided in the N.S.A. has
been adopted. The detenue /petitioner was
served the orders promptly. The State
Government approved the detention order
well within 12 days as provided under
Section 3 (4) N.S.A. The State Government
forwarded the copy of the detention order
etc. to the Central Government within 7
days from the date of approval as required
under Section 3 (5) of the N.S.A.. The State
Government forwarded the detention order
and ground of detention etc. to U.P.
Advisory Board (Detentions), Lucknow
well within 3 weeks from the date of actual
detention as required under Section 10 of
the N.S.A. The U.P. Advisory Board heard
the detenue in person and sent its report
alongwith the opinion that there is
sufficient cause for preventive detention of
812 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner well within 7 weeks from the
date of detention of the petitioner as
provided under Section 11 (1) of the N.S.A.
The
detention
order
was
confirmed
tentatively for 3 months from the date of
actual detention and was served upon the
detenue. Thereafter, the detention order
was extended time to time in the manner as
mentioned above.

(15) Elaborating his submission,
learned AGA has further submitted that in
exercise of powers under Section 3 (3) of
the N.S.A., the State Government is
empowered to pass the detention order at
the first instance for 3 months and if
satisfied to extend such period from time to
time by any period not exceeding 3 months
at any one time. The maximum period of
detention for which any person may be
detained in pursuance of any detention
order which has been confirmed under
Section 12 of N.S.A. shall be twelve
months from the date of detention (subject
to the proviso). Thus, in view of Article 22
(4) of the Constitution of India read with
Sections 3 (3) and Section 13 of the N.S.A.,
the detention of the petitioner for 12
months from the date of actual detention is
completely justified and legal and there is
no illegality in extending the period of
detention time to time for a total period of
12 months.

(16) Learned A.G.A. has further
argued that the State Government has
rejected
the
petitioner's
representation
without
any
delay.
The
act/offence
committed by the detenue is in nature of
effecting
public
order.
The
District
Magistrate, after having gone through the
report of Sponsoring Authorities and after
being satisfied that to prevent the detenue
from acting prejudicial to maintenance of
public order, passed the order of detention
after recording its subjective satisfaction.
He also argued that a single act in the
nature of effecting public order is sufficient
for the Detaining Authority to exercise its
power given under the NSA. It is not the
number of acts matters but what has to be
seen is the effect of the act on even tempo
of life, the extent of its reach upon society
and its impact as has been held by the Apex
Court in State of U.P. vs. Sanjay Pratap
Gupta :2004 (8) SCC 591.

(17) Learned AGA has further argued
that the Act/offence committed by the
detenue/petitioner clearly violates the rights
of other religion and is in the nature of
insulting the religious sentiments of one
community. The calculated tendency of this
aggravated form of insult is clearly to
disrupt the public order and the section.
The
act
committed
by
the
detenue/petitioner is in the nature of
insulting the religion with deliberate and
malicious
intention
of
outraging
the
religious feelings of one class. He has
placed reliance upon Ramji Lal Modi vs.
State of U.P.: AIR 1957 (SC) 620 and
argued that nobody can exercise the
fundamental rights by putting the public
order in jeopardy. The maintenance of the
public order is paramount in the larger
interest of the society.

(18) Learned AGA has also placed
reliance upon Gulam Abbas and others vs.
State of U.P. and others : 1984 (1) SCC 81)
and argued that the tweet/post and the
comments of different persons against Hindu
Goddess cannot be said to be any religious
right of the petitioner and others rather it is an
offence provoking the sentiments of another
religion. The petitioner is seeking his right
given under Article 21 of the Constitution of
India, who himself is not having faith in the
Constitution and the judicial system of the
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
813
country. He argued that after the verdict of
the Hon'ble Supreme Court in respect of Ram
Janam Bhumi dispute, it is law of land and
that giving an open challenge to the verdict of
the Hon'ble Supreme Court by posting a
tweet, clearly shows the deliberate and
malicious intention against one religion and
against the highest Court of the Nation. The
intention is very clear that the petitioner does
not have faith in the laws of the land. He also
argued that the extension of detention period
is well within the jurisdiction of the Detaining
Authority/State Government. At the time of
further extension of detention order, it is not
necessary to furnish the grounds of extension
to the detenue, each and every time. The
detention period was extended on the
grounds, which were already communicated
to the petitioner and no prejudice was likely
to be caused to the petitioner. In support of
his submission, he has placed reliance upon
Rakesh Singh Vs. Union of India and 3
others : 2021 Law Suit (All 159).

(19) Learned AGA has further argued
that there is no illegality in the order of
detention. The petitioner's activities are
prejudicial to the maintenance of the public
order. The subjective satisfaction of the
Detaining Authority is well founded, based
on clinching material on record. Hence, the
writ petition is liable to be dismissed.

(20) Ms. Pooja Singh, learned
Counsel for the Union of India/respondent
no.1 has submitted that the representation
of the detenue/petitioner was considered
with all promptness and there was no
negligence or delay in this regard.

(21) Having heard the learned
Counsel for the parties and gone through
the impugned order of detention as well
material brought on record, the main thrust
of arguments of the learned Counsel for the
detenue/petitioner while challenging the
impugned
order
of
detention
and
consequential impugned orders are as under
:-

(1) The sponsoring authority,
without ascertaining the fact from the
Facebook Company
that
the
alleged
material is posted with the petitioner's I.D.
or not as mandated under Section 65 B of
the Indian Evidence Act, has recommended
to slap N.S.A. upon the detenue/petitioner.

(2) The Detaining Authority i.e.
District Magistrate, Lakhimpur Kheri has
passed the impugned detention order in a
routine manner without application of mind
on the report submitted to him by the
sponsoring/police authority and that the
District Magistrate has failed to record any
real subjective satisfaction in the impugned
order of detention;

(3) The first extension order
dated 08.12.2020 was not supplied to the
detenue/petitioner but after the order passed
by this Court, the order of extension dated
08.12.2020 has been supplied to the
detenue/petitioner on 19.02.2021;

(4) In the impugned order of
detention dated 17.09.2020 passed by the
detaining authority as well as impugned order
of
affirmation
passed
by
the
State
Government dated 25.09.2020, the period for
which detention has been ordered, does not
specify, hence, in view of the ratio laid down
by the Apex Court in Lahu Shrirang Gatkal
Vs. State of Maharashtra through the
Secretary
and
others
(Supra),
the
impugned
order
of
detention
and
consequential affirmation order are illegal.

(5) There was undue delay in the
disposal of the representation of the
814 INDIAN LAW REPORTS ALLAHABAD SERIES
detenue/petitioner on the part of the Central
Government, Ministry of Home Affairs,
New Delhi.

(22) With regard to first and second
point
of
challenge
by
the
detenue/petitioner,
learned
Additional
Government Advocate has placed reliance
upon the judgment of the Apex Court in
Ramji Lal Modi Vs. State of Uttar
Pradesh (Supra) and Gulam Abbas and
others Vs. State of U.P. and others
(Supra) and has contended that the
act/offence committed by the detenue
clearly violates the right of other religion
and is in the nature of insulting the
religious sentiments of one community.
Thus, the calculated tendency of this
aggravated form of insult is clearly to
disrupt the public order and the act
committed by the petitioner is in the nature
of insulting the religion with deliberate and
malicious
intention
of
outraging
the
religious feelings of one class. He argued
that the Detaining Authority has considered
the entire material placed before him by the
sponsoring authority, particularly the fact
that
the
material
posted
by
the
detenue/petitioner through his Facebook
I.D. has absolutely disturbed the communal
harmony of the society and more so the
statement recorded under Section 161
Cr.P.C., the detenue/petitioner has himself
admitted the fact that he has posted the
alleged material from his facebook I.D.,
rightly satisfies that after being released on
bail, the detenue/petitioner shall again
indulge in activities prejudicial to the
public order. Hence, there is no illegality or
infirmity in passing the impugned order of
detention by the Detaining Authority.

(23) A perusal of the grounds of
detention reveals that a provocative post
''Babri maszid ek din dubara banai Jayegi,
jis tarah Turki ki Sofiya maszid banai gai
thi' alleged to have been posted by the
detenue/petitioner on his Facebook Wall on
5.8.2020 was taken into consideration by
the detaining authority while coming to the
subjective satisfaction that the petitioner
should be detained under the N.S.A. On
careful perusal of the grounds of detention
dated 17.09.2020, particularly para-1, it
would indicate that the detenue/petitioner
had been charged for posting aforesaid
provocative
message/tweet
on
his
Facebook Wall on 17.09.2020, which
amounts to causing fear or alarm in the
public, or to any section of the public
whereby any person may be induced to
commit offence against the State and also
disturb the communal harmony. For that
offence, one Sri Sagar Kapoor lodged an
FIR, which was registered as F.I.R. No.
595 of 2020, under Sections 153A, 292,
505 (2), 506, 509 I.P.C. and Section 67 of
the Information Technology (Amendment)
Act, 2008, at Police Station Mohammadi,
District Kheri on 06.08.2020, at 12:46 P.M.
During the investigation, Sections 292/509
I.P.C. were dropped, however, Section 295A I.P.C. was added. On 08.08.2020, the
petitioner was arrested in connection with
the aforesaid F.I.R. and was sent to jail.
After his arrest, confessional statement of
the detenue/petitioner was recorded and in
his statement, the detenue/petitioner has
confessed his guilt in posting the aforesaid
provocative message on his Facebook. The
grounds of detention further shows that in
view of communal tension and enmity,
people at different places gathered and
raised slogans against the said message, by
which communal harmony was disturbed
and, therefore, additional police force was
deployed and after serious efforts, the
public order could be restored. It has also
been mentioned in the grounds of detention
that after arrest of the petitioner, he has
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
815
moved an application for bail, which was
rejected by the Court concerned and
thereafter, the detenue/petitioner has moved
an application for bail before the Sessions'
Court. Therefore, the Detaining Authority,
after considering the entire material on
record, satisfied that in order to prevent the
detenue/petitioner from acting in a any
manner prejudicial to the maintenance of
public order, it became necessary to pass
order of detention of the petitioner.

(24) Observing that aim of preventive
detention is not to punish a man for having
done something but to intercept and to
prevent him from doing so, the Supreme
Court in the case of Naresh Kumar Goyal
v. Union of India and others, (2005) 8
SCC 276, and ingeminated in Union of
India and another v. Dimple Happy
Dhakad, AIR 2019 SC 3428, has held that
an order of detention is not a curative or
reformative or punitive action, but a
preventive action, avowed object of which
being to prevent antisocial and subversive
elements from imperilling welfare of the
country or security of the nation or from
disturbing public tranquility or from
indulging in smuggling activities or from
engaging in illicit traffic in narcotic drugs
and
psychotropic
substances,
etc.
Preventive detention is devised to afford
protection to society. The authorities on the
subject have consistently taken the view
that preventive detention is devised to
afford protection to society. The object is
not to punish a man for having done
something but to intercept before he does
it, and to prevent him from doing so.

(25) To sum up, a law of preventive
detention
is
not
invalid
because
it
prescribes
no
objective
standard
for
ordering preventive detention, and leaves
the matter to subjective satisfaction of the
Executive. The reason for this view is that
preventive detention is not punitive but
preventive and is resorted to with a view to
prevent a person from committing activities
regarded as prejudicial to certain objects
that the law of preventive detention seeks
to prescribe. Preventive detention is, thus,
based on suspicion or anticipation and not
on proof. The responsibility for security of
State, or maintenance of public order, or
essential services and supplies, rests on the
Executive and it must, therefore, have
necessary powers to order preventive
detention. Having said that, subjective
satisfaction of a detaining authority to
detain a person or not, is not open to
objective assessment by a Court. A Court is
not a proper forum to scrutinize the merits
of administrative decision to detain a
person. The Court cannot substitute its own
satisfaction for that of the authority
concerned
and
decide
whether
its
satisfaction was reasonable or proper, or
whether in the circumstances of the matter,
the person concerned should have been
detained or not. It is often said and held
that the Courts do not even go into the
question whether the facts mentioned in
grounds of detention are correct or false.
The reason for the rule is that to decide
this, evidence may have to be taken by the
Courts and that is not the object of law of
preventive detention. This matter lies
within the competence of Advisory Board.
While saying so, this Court does not sit in
appeal over decision of detaining authority
and cannot substitute its own opinion over
that of detaining authority when grounds of
detention are precise, pertinent, proximate
and relevant.

(26) It is apt to mention here that our
Constitution
undoubtedly
guarantees
various freedoms and personal liberty to all
persons in our Republic. However, it
816 INDIAN LAW REPORTS ALLAHABAD SERIES
should be kept in mind by one and all that
the
constitutional
guarantee
of
such
freedoms and liberty is not meant to be
abused and misused so as to endanger and
threaten the very foundation of the pattern
of our free society in which the guaranteed
democratic freedom and personal liberty is
designed to grow and flourish. The larger
interests of our multi-religious nation as a
whole and the cause of preserving and
securing to every person the guaranteed
freedom peremptorily demand reasonable
restrictions on the prejudicial activities of
individuals which undoubtedly jeopardize
the rightful freedoms of the rest of the
society.
Main
object
of
Preventive
Detention is the security of a State,
maintenance of public order and of supplies
and services essential to the community
demand, effective safeguards in the larger
interest
of
sustenance
of
peaceful
democratic way of life.

(27) In the instant case, on examining
the grounds of detention, briefly referred to
herein-above, on the touchstone of the legal
position
as
emerging
from
the
aforementioned decisions, we are of the
considered view that the activities relied
upon by the Detaining Authority to come to
the conclusion that in order to prevent the
petitioner from acting in any manner
prejudicial to the maintenance of public
order, it became necessary to pass order for
detention of the detenue/petitioner, cannot
be said to be mere disturbance of law and
order. As mentioned in the ground of
detention,
the
activities
of
the
detenue/petitioner pertains to disturb the
communal harmony of the Society. The
posting of the provocative message through
his Facebook wall, as referred to hereinabove, strikes at the root of the State's
authority and is directly connected to
''public
order'.
This
act
of
the
detenue/petitioner was not directed against
a single individual, but against the pubic at
large having the effect of disturbing the
even tempo of life of the community and
thus breaching the ''public order'.

(28) This Court, therefore, has no
hesitation in holding that the instance of
petitioner's activities enumerated in the
grounds of detention, clearly show that his
activities cover a wide field and fall within
the contours of the concept of ''public order'
and the Detaining Authority was justified
in law in passing the impugned order of
detention. Hence, there is no substance on
the plea of the petitioner in this regard.

(29) So far as the argument relating to
non-supply of the first order of extension
dated 08.12.2020 to the detenue/petitioner
is concerned, it transpires from the record
that
the
order
of
extension
dated
08.12.2020 has been challenged by the
detenue/petitioner by means of amendment
and further as per own submission of the
petitioner that the order of extension dated
08.12.2020 has been supplied to the
detenue on 19.02.2021, therefore, it is
immaterial at this stage to raise the issue of
non-supply of the first order of extension
dated 08.12.2020. Moreso, there was no
such requirement to furnish grounds of
extension to the detenue because the
grounds of detention were the same, so no
any prejudice was likely to be caused to the
petitioner.

(30) So far as the argument of the
learned Counsel for the petitioner that the
detention order does not specify the period
for which detention has been ordered,
hence in view of the law laid down by the
Apex Court in Lahu Shrirang Gatkal Vs.
State of Maharashtra through the
Secretary
and
others
(supra),
the
9 All Mohd. Faiyyaz Mansuri Vs. Union of India & Ors.
817
impugned detention order is illegal, it is
relevant to mention here that this Court,
while adjudicating this issue in Habeas
Corpus No. 24213 of 2020 : Kanhaiya
Awasthi
Thru
Next
Friend
Shivangi
Awasthi Vs. Union of India Thru Secy.
Home Affairs New Delhi & Ors, decided on
16.08.2021, has taken note of the ratio laid
down by the Apex Court in T. Devaki Vs.
Government of Tamil Nadu and others :
1990 (2) SCC 456, which has subsequently
been followed in State of Maharashtra &
others vs. Balu S/o Waman Patole
(Criminal Appeal No. 1681 of 2019,
decided on 13.11.2019) as well as the ratio
laid down by the Apex Court in Secretary
to Government of Tamil Nadu Public
(Law and Ordre) Revenue Department
and others Vs. Kamala and others :
(2018) 5 SCC 322 and held that there is no
substance
in
the
plea
of
the
detenue/petitioner
that
the
impugned
detention order and the impugned order
confirming the detention order, both are
bad in law as they do not mention the
period of detention at the first instance.
Hence, the plea of the detenue/petitioner in
this regard has no force and the same is
rejected.

(31) The next submission of the
learned Counsel for the detenue/ petitioner
is that there is undue delay in the disposal
of
the
representation
of
the
detenue/petitioner on the part of the Central
Government, Ministry of Home Affairs,
New Delhi.