# Munna @ Shahanawaz v. State of U.P. & Ors

- **Citation:** (2023) 10 ILRA 766
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-22
- **Case number:** J. Habeas Corpus Writ Petition No. 346 of 2022
- **Bench:** Mrs. Sangeeta Chandra, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-shahanawaz-v-state-of-u-p-ors-49527
- **Pages:** 23

## Headnote

Detention order - Habeas Corpus--Act of
detenue created the situation which adversely
affected the public order -no proximity with the
offence and the invocation of the provisions of
the Act, 1980- a sensitive and tense situation
was continuing even after arrest of the
petitioner -sponsoring authority has thoroughly
examined the proposal of Superintendent of
Police- detention order by applying his mind and
subjective satisfaction- detenue provided the
opportunity to submit his representation-and
was duly considered and expeditiously decided .

W.P. dismissed. (E-9)

Cases cited:

## Text

_Characters 0–39,806 of 81,744. This is a partial read: ask again with offset=39806 for what follows._

766 INDIAN LAW REPORTS ALLAHABAD SERIES
application for grant of leave to appeal
made under Section 378(3) of the Cr.P.C.

" 19. Now,Section 378 of the Code
provides for filing of appeal by the State in
case of acquittal. Sub-section (3) declares
that no appeal "shall be entertained except
with the leave of the High Court". It is,
therefore, necessary for the State where it is
aggrieved by an order of acquittal recorded
by a Court of Session to file an application
for leave to appeal as required by subsection (3) ofSection 378 of the Code. It is
also true that an appeal can be registered
and heard on merits by the High Court only
after the High Court grants leave by
allowing the application filed under subsection (3) ofSection 378 of the Code.

20. In our opinion, however, in
deciding the question whether requisite
leave should or should not be granted, the
High Court must apply its mind, consider
whether prima faciecase has been made out
or arguable points have been raised and
not whether the order of acquittal would or
would not be set aside.

21. It cannot be laid down as an
abstract proposition of law of universal
application that each and every petition
seeking leave to prefer an appeal against
an order of acquittal recorded by a trial
Court must be allowed by the appellate
Court and every appeal must be admitted
and decided on merits. But it also cannot
be overlooked that at that stage, the Court
would not enter into minute details of the
prosecution evidence and refuse leave
observing that the judgment of acquittal
recorded by the trial Court could not be
said to be `perverse' and, hence, no leave
should be granted."

25. The law cited above and
principles laid down by the Hon'ble
Supreme Court, while dealing with an
application for leave to appeal must apply
the mind to consider whether prima facie
case is made out or not and whether the
order of acquittal be set aside or not and
can dispose of the application in limine.
The core essence of natural justice and fair
trial must reflect which will add assurance
to the judicial process.

26. Thus, after perusal of the
impugned
judgment
and
arguments
advanced by the learned counsel for the
State, we find that the prosecution has
failed to prove the charges levelled against
the accused respondents. The findings
recorded by the learned Trial Judge in the
impugned judgment is the plausible view
and is well reasoned and supported by
cogent evidence. No interference with the
impugned judgment and order of acquittal
is warranted and the appeal is liable to be
dismissed.

27. Considering the aforesaid facts
and circumstances, the leave to appeal is
dismissed in limine. Consequently, the
appeal also stands dismissed.

28. Copy of the order be sent to the
Court concerned for consequential follow
up action.
----------
(2023) 10 ILRA 766
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.09.2023

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA,
J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Habeas Corpus Writ Petition No. 346 of 2022

Munna@ Shahanwaz ...Petitioner
Versus
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
767
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Tushar Bhushan, Saharsh Srivastava, Sheikh
Wali Uz Zaman

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

Detention order - Habeas Corpus--Act of
detenue created the situation which adversely
affected the public order -no proximity with the
offence and the invocation of the provisions of
the Act, 1980- a sensitive and tense situation
was continuing even after arrest of the
petitioner -sponsoring authority has thoroughly
examined the proposal of Superintendent of
Police- detention order by applying his mind and
subjective satisfaction- detenue provided the
opportunity to submit his representation-and
was duly considered and expeditiously decided .

W.P. dismissed. (E-9)

Cases cited:

1. Prakash Chandra Yadav @ Mungeri Yadav Vs
The St. of Jharkhand & ors., Civil Appeal No.
4324 of 2023

2. Deepu @ Kuldeep Yadav Vs U.O.I. and 5
others (Habeas Corpus Writ Petition No.25783
of 2017, decided on 06.11.2017)

3. Sonu @ Mohd. Ishtiyaq through mother
Shameem Bano Vs U.O.I. & ors.(Habeas Corpus
No.11132 of 2021, decided on 01.11.2021)

4. Abhayraj Gupta Vs Superintendent, Central
Jail, Bareilly (E-Habeas Corpus Writ Petition
No.362 of 2021, decided on 23.12.2021)

5. Arun Ghosh Vs St. of W.B., 1970 1 SCC 1998

6. Ram Ranjan Chatterjee Vs St. of W.B., (1975)
4 SCC 143

7. Ibrahim Nazeer Vs St. of T.N. & anr., (2006)
6 SCC 64

8. Magan Gope Vs St. of W.B. (1975) 1 SCC 415

9. U.O.I. Vs Yumnan Anand M. Alias Bocha Alias
Kora @ Suraj & anr., 2007) 10 SCC 190

10. Frances Coralie Mullin Vs W.G. Khambra,
1980 DGLS (SC) 97

11. Indradeo Mahato Vs St. of W.B., (1973) 4
SCC 4

(Delivered by Hon'ble Narendra Kumar
Johari, J.)

1. This writ petition has been filed by the
petitioner with the following main prayers
:-

"(i) issue a writ, order or direction in
the nature of Certiorari, quashing the
impugned detention order dated 24.09.2022
passed by the District Magistrate, Hardoi,
contained in Annexure number 1 to this
writ petition.

(ii) issue a writ, order or direction in
the nature of Habeas Corpus, directing and
commanding
the
opposite
parties
to
forthwith release the petitioner.

(iii) quash the entire consequential
proceedings."

2. The facts of the case are that on
10.08.2022 at around 6.00 P.M. when the
informant Smt. Siddeswari Devi and her
daughter Rajni were present in her house,
the accused persons Maroof, Jubair, Arif,
Shamshad, Munna, S/o Sabban Fauji along
with other persons of muslim community
entered into the house of informant and
started molesting her daughter. When the
informant opposed, the accused Munna
fired on chest of informant. Fortunately,
due to missing of cartridge, it could not be
fired. The accused Munna inquired about
the whereabouts of her son Nanhe as he
was leading the tricolor flag yatra on the
occasion of their festival (Muharram). The
768 INDIAN LAW REPORTS ALLAHABAD SERIES
accused persons gave threat that they will
kill her son. When the informant raised her
voice for help the neighbours reached on
the spot to rescue them. At that time the
accused persons started firing shots. On
intervention of the neighbours, the accused
persons returned back by extending threat.

3. The F.I.R. of the occurrence was lodged
at Police Station Pali, District Hardoi at
6.53 P.M. on the same day vide Case Crime
No. 305/2022, under Section 452, 354, 307,
506 I.P.C. It has also been mentioned that
Section 7/8 of the POCSO Act had also
been added in the case. Subsequently the
son of informant Nanhe lodged another
F.I.R. on the same day at 7.47 P.M. in the
same police station with the allegation that
at 7.00 P.M. the accused persons Rijwan,
Sainiyaz, Rahmat Ali @ Monu and Riyasat
and other approximately 200 unknown
persons came to the house of the informant
Nanhe with the common intention to kill
the informant. They started stone pelting
and abusing. The accused Rizwan and
some other persons opened fire but the
family members of the informant somehow
saved their lives. It has also been alleged
that one day prior, the informant had
received life threat near Imam Chowk
Imambara. Accordingly the F.I.R. was
registered in the same police station at 7.47
P.M. vide Crime No. 306/2022 under
Sections 147, 148, 149, 336, 504, 506,
307 IPC and Section 7 Criminal Law
Amendment Act. Further on 12.08.2022
at about 6.10 A.M. on the information of
the informant the Station Officer of
Police Station Pali, District Hardoi
arrested accused Munna, S/o Sabban
Fauji, Maruf, S/o Ismail, Shamshad, S/o
Sajjad, Risalat, S/o Salamat, Sainiyaz,
S/o Sabban. The police persons recovered
two country made pistols of .315 Bore
and .32 Bore along with two cartridges
from the possession of Munna. He could
not produce the licence of firearms. The
Station Officer, Police Station Pali,
District Hardoi arrested them and lodged
the F.I.R. under Section 3/25 Arms Act
vide Crime No. 307/2022 against accused
Munna @ Shahanwaz.

4. It is revealed from the record that
the Incharge Officer of L.I.U., District
Hardoi
submitted
a
report
dated
16.08.2022 to the Superintendent of
Police, Hardoi that at the time of
occurrence, accused Munna was moving
around with firearms in his both the
hands. Due to his aggravating action a
situation of chaos engulfed the locality,
which resulted in a communally sensitive
situation in the area. The Superintendent
of Police, Hardoi on 17.08.2022 gave a
direction to Incharge Officer of Police
Station Pali to arrange and deploy proper
police force in the area to maintain peace
and harmony and also forwarded his
direction to Circle Officer, Shahabad and
Additional
Superintendent
of
Police
(West), Hardoi. Further, the Station
House Officer of Police Station Pali,
submitted his report on 19.09.2022.
Thereafter, the Superintendent of Police,
Hardoi prepared his report regarding the
occurrence and prevailing situation in the
area and forwarded the same to District
Magistrate, Hardoi with the prayer to
initiate action against accused Munna @
Shahnawaz under the Act, 1980 on
20.09.2022. The
District
Magistrate,
Hardoi considered the matter thoroughly,
ascertained the grounds of detention and
passed the order of detention against
petitioner dated 24.09.2022 under Section 3
(2) of the Act, 1980. The detention order
has been received in jail office on
25.09.2022 which was served on the
detenue on the same day.
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
769

5. The detenue has submitted his
representation dated 05.10.2022 in the
office of Jail Superintendent on 06.10.2022
along with its copy to Chairman, Advisory
Board,
Secretary,
Home,
Central
Government,
New
Delhi,
Secretary
(Home), Government of U.P., Lucknow,
District Magistrate, Hardoi which were
transmitted to District Magitrate by Jail
Superintendent on the same day i.e. on
06.10.2022.

6. The District Magistrate, Hardoi
considered
the
representation
of
the
detenue
and
rejected
the
same
on
07.10.2022. He communicated his rejection
order to the Jail Superintendent on
07.10.2022, which was communicated to
the detenue on the same day.

7. The State Government approved
the detention order dated 24.09.2022 on
30.09.2022.
The
aforesaid
rejection
approval order was received by Jail
Superintendent on 13.10.2022 through the
District Magistrate, Hardoi (the State
Government has approved the detention
order in 05 days). The detenue has been
communicated by the Jail Superintendent
regarding the aforesaid approval order on
13.10.2022.

8. Further, the State Government
while rejecting the representation of the
detenue
communicated
the
same
on
20.10.2022 through Radiogram also which
was received by the office of Jail
Superintendent on 21.10.2022. The same
has been communicated to the detenue on
the same day.

9. The Central Government also
rejected
the
representation
of
the
petitioner/detenue and sent the radiogram
on 26.10.2022 which was received in the
office of jail Superintendent on 27.10.2022.
Jail Superintendent has communicated the
rejection
order
to
the
detenue
on
27.10.2022 itself.

10. The representation of detenue
dated 05.10.2022 along with parawise
comments of detaining authority were
received by the concerned department of
the State Government on 18.10.2022 from
where the same was sent to Hon'ble
Advisory Board, Lucknow.

11. The letter of Hon'ble Advisory
Board dated 21.10.2022 regarding hearing
of the case along with letter of District
Magistrate, Hardoi dated 21.11.2022 was
received in the office of Jail Superintendent
on 01.10.2022 itself. Hon'ble Advisory
Board had fixed 03.11.2022 for hearing of
the accused. The letter of Advisory Board
was also communicated to the detenue on
the same day. The detenue appeared before
the Advisory Board along with his Pairokar
Islam Khan on 03.11.2022.

12. Hon'ble Advisory Board after
hearing had not found any ground for
revocation of the detention order and
informed
its
decision
to
the
State
Government vide letter dated 07.11.2022.

13. It has further been shown in the
counter affidavit of the State Government
that once again the State Government
examined the case of petitioner afresh and
by considering the opinion of the U.P.
Advisory Board and after due consideration
the State Government took a decision to
confirm the detention order and also for
keeping the petitioner under detention
further for a period of three months
tentatively from the date of actual detention
of the petitioner (till 24.11.2022). The
aforesaid
extension
oder
has
been
770 INDIAN LAW REPORTS ALLAHABAD SERIES
communicated to the detenue on the same
date by Jail authorities. Again the State
Government vide order dated 22.12.2022
extended the period of detention tentatively
for the period of 06 months from the date
of
detention
(24.03.2023).
The
said
extension
order
has
been
duly
communicated to the petitioner. The State
Government by its letter dated 16.06.2023
extended the period of detention tentatively
for the period of 12 months from the date
of detention.

14. Learned counsel for the petitioner
has argued that the sole ground for
detention as it has been mentioned in the
grounds of detention of the Sponsoring
Authority are the three criminal cases i.e.,
Case Crime No.305/2022, Case Crime
No.306/2022
and
Case
Crime
No.
307/2022. In the occurrence no injury has
been caused to either informant or any
member of informant's family. In her
statement under Section 161 and 164
Cr.PC. the daughter of informant (Crime
No.305/2022) has stated that one of the
accused Maruf along with the petitioner
and other persons came to their house and
Maruf touched and grabbed her hand. The
allegation was against Maruf only, hence
the petitioner has wrongly been charged
under Section 7/8 of the POCSO Act in
connection
with
the
Case
Crime
No.305/2022. So far as the Case Crime
No.306/2022 is concerned, the petitioner is
not named in the F.I.R.

15. It has further been argued that the
witnesses,
namely,
Pradeep
Kumar,
Sandeep Verma, Sudhir, Santosh Rastogi,
Nikki Rastogi, Laxman Rastogi, under
Section 161 Cr.P.C. have stated that on the
date of incident at about 6.00 P.M. near the
house of informant a heated argument took
place between Nanhe and some persons
belonging to the Muslim community. The
date was the eve of Moharram and there
was a heavy crowd on the road. An
objection was made by the people on the
fast driving of motorcycle by Nanhe.
Regarding case crime no. 306/2022 the
witness Ram Lakhan, Ashish Rastogi,
Akashdeep, Kanhaiya Lal, Virendra Kumar,
Aditya Kumar, Gaurish Kumar, Raksh Pal
and Jugal Kishore in their statement under
Section 161 Cr.P.C. have not taken the
name of petitioner, rather they have stated
that there were so many boys of Muslim
community whom they recognize by face
but they did not know their names. The
Police has falsely implicated the petitioner
in the case under Arms Act also. The
firearm in case crime no.307/2022 has been
planted by the police themselves. The
detaining authority has not given any
cogent reason justifying the preventive
detention of the petitioner. There is no
cogent material before the detaining
authority to arrive at the satisfaction that
the detenue is likely to be released from the
custody in near future and taking into
account the nature of antecedent, activity of
the detenue there is likelihood that if he is
released from the custody he would indulge
in prejudicial activities and it is necessary
to detain him in order to prevent him from
such activities.

16. It has been further argued by
learned counsel for petitioner that the
alleged incident was an offence against one
individual which may affect the "law and
order" situation but it does not affect the
"public order" so as to attract the provisions
of Section 3 (2) of the Act, 1980. The
incident took place on 10.08.2022, whereas
the detention order has been passed against
petitioner on 22.09.2022 which has no
proximity, therefore, detention order was
neither warranted nor justified. The copy of
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
771
the bail order dated 12.09.2022 had not
been provided to the petitioner which
vitiates the detention order. The petitioner
has no criminal history. The same has not
been
considered
by
the
Detaining
Authority. There is no proof regarding the
probability of the detenue acting similarly
in
future
or
repetitive
tendency
or
inclination on the part of the detenue to act
likewise in future. There was no material
before the Detaining authority to form a
valid subjective satisfaction that petitioner
is likely to be released from jail and once
the petitioner is released, he would again
indulge in activities
that
would
be
prejudicial to the maintenance of the public
order. The detaining authority has not
applied his mind. He has copied the
proposal. The present case is not a case of
disturbance of public order as it does not
disturb the society to the extent of causing
a general disturbance of public tranquility
and is not suggestive of a repetitive
tendency or inclination on the part of the
petitioner.

17. It has also been argued that the
local police under the political pressure and
machinery has arrested the petitioner and
sent him to jail on 12.09.2022. The
petitioner
is
innocent
and
has
not
committed any criminal offence. He has
been falsely implicated in the aforesaid
three criminal cases. At present the
petitioner is pursuing his B.A. Final year
course from Bareilly and is also working in
a private construction company at Hardoi.
The detention order has not been passed
against any of the named accused in case
crime no. 306/2022. The representation of
the petitioner was neither dealt with
promptly nor with sense of urgency which
is in violation of Article 22(5) of the
Constitution of India. The petitioner is sole
breadwinner of his family.

18. Learned counsel for the petitioner
finally submitted that by way of an
additional affidavit the petitioner has
challenged the fresh detention order dated
17.11.2022 against the petitioner by which
the detention has been extended for a
period of three months tentatively. It is a
subsequent development. Therefore, the
impugned order dated 24.09.2022 is liable
to be quashed.

19. Learned counsel for the petitioner
in support of his case has placed reliance
upon the following case laws :-

(i)
Prakash
Chandra
Yadav
@
Mungeri
Yadav
Vs.
The
State
of
Jharkhand & others, Civil Appeal No.
4324 of 2023 [arising out of SLP (C) No.
5331 of 2023, decided on 10.07.2023 by
Hon'ble Supreme Court]

(ii) Deepu Alias Kuldeep Yadav Vs.
Union of India and 5 others [Habeas
Corpus Writ Petition No.25783 of 2017,
decided by a co-ordinate bench of this
Court on 06.11.2017]

(iii) Sonu @ Mohd. Ishtiyaq through
mother Shameem Bano Vs. Union of
India
and
others
[Habeas
Corpus
No.11132 of 2021, decided by a co-ordinate
bench of this Court on 01.11.2021]

(iv)
Abhayraj
Gupta
Vs.
Superintendent, Central Jail, Bareilly [EHabeas Corpus Writ Petition No.362 of
2021, decided by a co-ordinate bench of
this Court on 23.12.2021]

20. In reply of the arguments of
learned counsel for the petitioner, learned
A.G.A. Shri Anurag Verma, on behalf of
opposite party No.2, has argued that the
detention order dated 24.09.2022 has been
passed strictly in conformity with the
provisions of the Act, 1980. The detention
order dated 24.09.2022 has been served on
772 INDIAN LAW REPORTS ALLAHABAD SERIES
detenue on 25.09.2022. The Station House
Officer of Police Station Pali, District
Hardoi
forwarded
the
report
dated
19.09.2022 to Superintendent of Police,
Hardoi. Thereafter, the Superintendent of
Police has submitted his proposal to
opposite party No.2 for taking action
against the petitioner under the preventive
detention. The proposal dated 20.09.2022
was considered by the District Magistrate,
Hardoi in a clear and objective manner.
Thereafter, the order dated 24.09.2022 was
passed by him in accordance with law. The
representation dated 05.10.2022 preferred
by the petitioner was considered and
decided
by
the
District
Magistrate
objectively and promptly on 07.10.2022,
i.e. in one day as the proposal was
received in office of District Magistrate
on 06.10.2022 only. As a matter of fact
the son of the informant Nanhe was
leading the tricolor Yatra which is not
illegal. On the date of occurrence at the
eve of Moharram, the accused persons
opposed Nanhe who was leading the
yatra. In furtherance of the protest the
persons of the other community including
petitioner attacked at the house of Nanhe
regarding which the F.I.R. under Case
Crime No.305/2022 was lodged in the
police station concerned. Aggrieved by
the aforesaid F.I.R., again the persons of
the other community including the detenue
aimed the house of Nanhe with stone
pelting in the area and committed the
offensive act regarding which the F.I.R.
under Case Crime No.306/2022 was
lodged.
In
the
wake
of
the
two
consequential offences, a sense of fear and
terror gripped the residents of the Kasba
Pali, as a result of which the public order
was severely jeopardized. The police after
investigation has submitted charge sheet
against petitioner in all the aforesaid three
cases in the competent court.

21. It has also been argued by learned
A.G.A.
that
as
far
as
the
crime
No.306/2022 is concerned, the name of the
detenue has been discovered in the course
of investigation with other co-accused
persons. The witnesses in their statement
under Sections 161 Cr.P.C. and the victim
under Section 164 Cr.P.C. have supported
the story of the prosecution. The petitioner
was actively involved in commission of the
offence along with other co-accused
persons. The District Magistrate, Hardoi
has duly applied his mind to the report of
the Superintendent of Police, Hardoi and
having arrived at a subjective satisfaction
has invoked the provisions of National
Security Act against the petitioner without
any bias or prejudice. By the act of
petitioner and other accused persons a
sense of fear and terror gripped in the
minds of the residents of Kasba Pali and
adjoining areas and tension escalated
amongst the members of two different
religious community as a result of rioting
and indiscriminate pelting of stones. The
public order was adversely jeopardized as a
result of criminal activities of the petitioner
including provoking the persons of his
community by showing is pistols in his
both the hands. As a result, the additional
police force from the various police
stations coupled with the team of PAC were
deployed
and
various
administrative
officers were involved to maintain constant
vigil over the situation for many days,
which was duly ascertained by the District
Magistrate, Hardoi from a perusal of the
report
and
proposal
sent
by
the
Superintendent
of
Police,
Hardoi.
Thereafter, the petitioner was making
frantic efforts to secure bail and, therefore,
the District Magistrate, Hardoi arrived at a
subjective satisfaction that enlargement of
the petitioner on bail was likely to further
jeopardize
the
public
order.
After
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
773
considering the material properly the
detention order dated 24.09.2022 was
passed by the opposite party No.2 which in
turn was subsequently ratified by the State
Government vide order dated 30.09.2022.
The Hon'ble Advisory Board also did not
find any ground for revocation of the order.
The
Central
Government
also
after
considering the detention order at various
levels, rejected the representation of the
detenue for revocation of the detention
order.

22. Learned counsel further submitted
that public order is synonymous to public
safety and tranquility. From the grounds of
detention
mentioned
by
the
District
Magistrate it is evidently clear that the
offence committed by the petitioner was
not merely disturbance in 'law and order'
situation but it was disturbance in 'public
order' situation therefore, the detaining
authority was compelled to invoke the
provisions of the National Security Act.
The residents of the area became fear
stricken
because
of
daring
incident
committed by the petitioner and other
persons of his group which caused tension
and
panic
amongst
two
different
communities.
The
petition
being
misconceived has no force and is liable to
be dismissed.

23. Shri D.S. Rana, learned Addl.
A.G. has argued for opposite party no.4 that
the petitioner was detained in jail in
pursuance
to
the
order
of
Remand
Magistrate, Hardoi under Case Crime
No.307/2022, 305/2022 and 306/2022 and
on getting the bail order of the courts
concerned the petitioner was released on
bail on 01.10.2022 thereafter he was
detained under the provisions of National
Security Act. Learned counsel has further
submitted that the detention order dated
24.09.2022 along with grounds of detention
was received in the jail office on
25.09.2022
by
the
I.O.
which
was
communicated to accused on same day and
service
report
was
sent
to
District
Magistrate, Hardoi on same day. Further
approval order of detention order which
was passed by the Under Secretary, Home
Department, Government of U.P. dated
30.09.2022
was
received
through
radiogram on the same day and the above
order has been communicated to the
detenue on 30.09.2022 itself and its service
report
has
been
sent
to
the
State
Government on the same date. The detenue
has provided his representation dated
05.10.2022 against the detention order
dated 24.09.2022 along with copies for
Hon'ble
Advisory
Board,
State
Government, Central Government and the
District Magistrate, Hardoi was provided in
the office of Jail Superintendent on
06.10.2022 which was sent by the Jail
Superintendent
to
District
Magistrate,
Hardoi
on
the
same
day.
Jail
Superintendent
further
on
07.10.2022
received letter of District Magistrate,
Hardoi
regarding
the
rejection
of
representation. The aforesaid rejection
order has been communicated to detenue
on the same day and the service report has
been sent to the District Magistrate, Hardoi
on 08.12.2022. The State Government also
approved the detention order on 30.09.2022
and the above approval order through the
District Magistrate, Hardoi was received in
the office of Jail Superintendent on
13.10.2022 and the order has been
communicated to the detenue on the same
day, i.e. on 13.10.2022. The information of
receiving has also been sent to concerned
authorities on 13.10.2022 itself. Further the
jail office received the telegram of State
Government dated 20.10.2022 regarding
the rejection of representation passed by
774 INDIAN LAW REPORTS ALLAHABAD SERIES
under
Secretary
(Home
Department),
Government
of
U.P.,
Lucknow
on
21.10.2022 which was communicated to
detenue and the information of receiving
has been sent to the concerned on the same
day.

24. Learned counsel has further
argued that the Jail authorities have
received the telegram dated 26.10.2022
regarding the rejection of representation of
detenue by the Central Government on
27.10.2022. The aforesaid rejection order
was communicated to the detenue on the
same date and the receiving has been
communicated to the concerned. The jail
office also received the letter of District
Magistrate, Hardoi along with letter of
Senior Registrar, Hon'ble Advisory Board,
Lucknow dated 21.10.2022 on 01.11.2022
in his office. The Jail Superintendent has
communicated
the
contents
of
letter
regarding the date of hearing to detenue on
same
date.
The
Jail
Superintendent
demanded the police force to present the
detenue before the Hon'ble Advisory
Board. Jail Superintendent also provided
the facility of PCO to detenue for his talk
with his family members. On 02.11.2022
the Pairokar of the detenue submitted copy
of his Aadhar Card and Electoral Card to
the office of Jail Superintendent, which was
sent by Jail Superintendent to the District
Magistrate, Hardoi on the same date. The
Jail Superintendent further sent the detenue
to Advisory Board under police custody on
03.11.2022. Learned counsel for opposite
party No.4 has further submitted that the
jail office has received the information
through radiogram regarding extension of
detention order on 17.11.2022 and the letter
of the State Government to the same effect
on
21.11.2022
and
radiogram
dated
22.12.2022 which was received in the
office of Jail Superintendent on 23.12.2022
was communicated to the detenue on the
same date. Further the letter of State
Government dated 22.12.2022 which was
received in the office of Jail Superintendent
on 30.12.2022 regarding the extension of
period
of
detention
has
also
been
communicated
to
the
detenue
on
30.12.2022.

25. Learned A.G.A. Shri S.N. Tilhari
on behalf of the opposite party No.1
submitted that the detention order dated
24.09.2022, grounds of detention and all
other related documents forwarded by the
District Magistrate, Hardoi were received
by the State Government on 26.09.2022.
After examining other aspect of the case of
the
petitioner
in
detail
the
State
Government approved the detention order
on 29.09.2022 (within 03 days) and such
approval was communicated by the State
Government through radiogram and letter
dated 30.09.2022 to the petitioner which
has been communicated to him on
30.09.2023 itself.

26. It has also been argued by him
that apart from that, the aforesaid detention
order as well as documents attached were
also sent to the Central Government by
speed post on 03.10.2022 (within 07 days).
Accordingly, there is no violation of
Section 3 (4) and 3 (5) of the Act, 1980.
The State Government also forwarded the
aforesaid papers to the U.P. Advisory
Board, Lucknow on 06.10.2022 (within 03
days) in accordance with the provisions of
Section 11 of the Act, 1980. The
representation of the petitioner along with
parawise comments of Assessing Authority
was received in the office/section of State
Government on 18.10.2022 along with
letter of District Magistrate, Hardoi dated
07.10.2022. The State Government sent the
copy
of
the
same
to
the
Central
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
775
Government and to the U.P. Advisory
Board in separate letters on same date, i.e.
on 18.10.2022. The representation of the
detenue
dated
05.10.2022
and
other
documents which were received by the
State Government on 18.10.2022 were sent
to the Home (Gopan) Anubhag-5 on
19.10.2022 for examination/consideration
which was examined by the Anubhag on
the same date. The Joint Secretary and the
Special Secretary also examined the
representation and papers on same date, i.e.
on 19.10.2023, the Secretary, Government
of U.P., Lucknow. Thereafter, Additional
Chief Secretary, Government of U.P.,
Lucknow
examined
the
papers
on
20.10.2022. After that the record was
submitted to the higher authorities for final
order of the State Government and after
due consideration the said representation
was
finally
rejected
by
the
State
Government on 20.10.2022 (within 02 days
of its receiving). The said rejection order
was also communicated to the District
Authorities
through
radiogram
on
20.10.2022 which was communicated to
the petitioner on 21.10.2022. Learned
counsel further submitted that the U.P.
Advisory Board, Lucknow vide its letter
dated 21.10.2022 informed the State
Government that the case of the petitioner
would be taken up for hearing on
03.11.2022.
The
above
fact
was
communicated to the District Authorities
through radiogram dated 31.10.2022 who
communicated the same to the petitioner.
The petitioner appeared before the Hon'ble
Advisory Board and took part in the
proceedings through his next friend.

27. Hon'ble Advisory Board, after
hearing the case, sent its report along with
the information that there is sufficient cause
for preventive detention of the petitioner
under the Act, 1980. The said report and the
record of the case were received in the
concerned section of the State Government
on
10.11.2022
through
letter
dated
07.11.2022 of the Registrar, U.P. Advisory
Board (Detention) (within 07 weeks from
the date of detention). Accordingly, there is
no violation of Section 11 (1) of the Act,
1980. The State Government after receiving
the report of Advisory Board, examined the
case of the petitioner afresh and took
decision to confirm the detention order for
the further period of 03 months tentatively
from the date of actual detention. The
extension order was communicated through
radiogram and letter dated 17.11.2022
which was communicated to the petitioner
through concerned authority.

28. Dr. Pooja Singh, learned counsel for
the Union of India/opposite party No. 3
argued that a copy of the representation
dated 05.10.2022 of the detenue along with
parawise comments of the detaining
authority dated 07.10.2022 was received in
the concerned section of the Ministry of
Home Affairs on 19.10.2022 (sent by State
Government vide letter dated 18.10.2022).
The representation along with parawise
comments of the detaining authority was
examined at the level of concerned section
and the file was submitted to the Under
Secretary on 20.10.2022 (in 01 day). The
Under Secretary further examined the
matter in detail and forwarded the same
with her comment to the Deputy Secretary
on 21.10.2022, who after examining the
same, forwarded the record to the Joint
Secretary on 21.10.2022 (in 01 day). The
Joint Secretary also examined the same and
forwarded the same to the Union Home
Secretary on 22.10.2022 (in 01 day). The
Union Home Secretary having carefully
gone through the record including the
grounds of detention and the representation
of the detenue with comments of the
776 INDIAN LAW REPORTS ALLAHABAD SERIES
Detaining Authority and concluded that
there is no ground for revocation of the
detention order. Accordingly, he rejected
the representation and sent the file back to
the
Joint
Secretary
on
22.10.2022.
Thereafter,
there
was
holiday
on
23.10.2023 and 24.10.2022. The file
reached in the section concerned through
aforesaid various levels on 26.10.2022 and
the authority concerned were informed by
the wireless message dated 26.10.2022
about the aforesaid rejection order. The
same was communicated to the detenue on
27.10.2022 (in 01 day).

29. Learned counsel for the Union of
India has further submitted that the
representation
of
the
detenue
dated
05.10.2022 was duly considered by the
Central Government at various levels and
not acceded by the Central Government.
The copy of wireless message dated
26.10.2022 has been annexed as Annexure
No.1 with the counter affidavit of the
opposite party No.3.

30. Learned counsel for the opposite
parties have placed reliance upon following
judgments :-

(i) Arun Ghosh v. State of West
Bengal, (1070) 1 SCC 98

(ii) Union of India v. Yumnam
Anand M. Alias Bocha Alias Kora Alias
Suraj and another, (2007) 10 SCC 190

(iii) Frances Coralie Mullin v. W.G.
Khambra, 1980 DGLS (SC) 97 : 1980 (2)
SCC 275

(iv) Ram Ranjan Chatterjee v. State
of West Bengal, (1975) 4 SCC 143

(v) Magan Gope v. State of West
Bengal, (1975) 1 SCC 415

(vi) Ibrahim Nazeer v. State of T.N.
and another, (2006) 6 SCC 64

31. We have heard the arguments of
learned counsel for the petitioner, learned
A.G.A. for the State/District Magistrate,
Hardoi, Jail Superintendent, District Jail,
Hardoi, the State of U.P./opposite party
No.1 and learned counsel for the Union of
India/opposite party No.3 and perused the
record thoroughly.

32. Learned counsel for the petitioner
assailed
the
detention
order
dated
24.09.2022 on the following main grounds
:-

(i) the petitioner had never acted in
any manner prejudicial to the maintenance
of the public order.

(ii) The incident according to the
F.I.R. took place on 10.08.2022 whereas
the detention order has eben passed on
24.09.2022. There is no proximity for
invoking the provisions of the Act, 1980
after approximately 45 days of the incident.

(iii) The bail order of the concerned
criminal cases were not supplied to the
petitioner by detaining authority.
(iv) The petitioner was having no criminal
antecedent. He was not named in the F.I.R.
No.306/2022, his bail application in Case
Crime No.307/22 had not been allowed and
he was in jail, as such, there was no
material before the Detaining Authority on
the basis of which a valid subjective
satisfaction could be formed to pass a
detention order. The sponsoring authority
has not applied his one mind and just
copied the proposal.

33.

Before
entering
into
the
discussion, we would like to reproduce the
relevant provision of the Act, 1980.

"3. Power to make orders detaining
certain persons. - (1) The Central
10 All. Munna @ Shahanawaz Vs. State of U.P. & Ors.
777
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, or the security of
India, or

(b) if satisfied with respect to 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.-
......................................................................
.............................

(3) If, having regard to the circumstances
prevailing or likely to prevail in any area
within the local limits of the jurisdiction of
a District Magistrate or a Commissioner of
Police, the State Government is satisfied
that it is necessary so to do, it may, by order
in writing, direct, that during such period as
may be specified in the order, such District
Magistrate or Commissioner of Police may
also, if satisfied as provided in sub-section
(2), exercise the powers conferred by the
said sub-section:

Provided................................................
........................................................

(4)
...............................................................
................................................

(5)
......................................................................
........................................."

34. According to the above provision
the detention order can be passed by the
Central
Government,
State
Government/District
Magistrate/Commissioner of Police on
their satisfaction with respect to any person
with a view to preventing him from acting
in any manner prejudicial to the society of
the State or prejudicial to maintenance of
the public order and the aforesaid order can
be passed having regard to the situation
prevailing or likely to prevail in the
concerned
area.
So,
on
the
mere
apprehension, the detentioin order can be
passed after considering the prevailing
circumstances and situations.

35. Learned counsel for the petitioner
has argued that perusal of the F.I.R.
indicates that there was situation which
may affect the law and order situation of
the area but not the public order, therefore,
the detention order is bad in the eye of law.