# Nuzhat Perween v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 5
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-01
- **Case number:** Habeas Corpus Writ Petition No. 264 of 2020
- **Bench:** Govind Mathur, C.J. Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nuzhat-perween-v-state-of-u-p-ors-45985
- **Pages:** 26

## Headnote

A. Constitution of India-Article 21- Right
to Personal Liberty - Under Article 21 of the
Constitution of India along with the right to life,
the right to personal liberty is a precious
fundamental right. This precious fundamental
right must always be protected - The strong
and valuable fabric of our nation is well
designed with support of fundamental rights
given in Part-III of the Constitution - These
rights are golden thread in the fabric, which is
further illuminated by extending protection of
life and personal liberty under Article 21 of the
Constitution of India - True it is, the right so
given under Article 21 is not absolute but no
one can be deprived of his or her personal
liberty
except
on
such
grounds
and
in
accordance
with
such
procedure
as
are
established by law. (Para 29)

B. Civil Law - National Security Act, 1980 -
Preventive Detention - Nature - Preventive
detention is an exceptional mode to curtail
liberty and freedom of a person in exceptionally
rare circumstances. (Para 29)

C. Civil Law - National Security Act, 1980 -
Section 3(2)-Preventive Detention- Subjective
Satisfaction of Authority - Scope of Judicial
Review - Interference by the Court - It is not
open for the courts to substitute their opinion by
interfering with 'subjective satisfaction of the
detaining authority' - However, it does not
mean that the court cannot look into the
material on which detention is based - While
assessing
'subjective
satisfaction
of
the
detaining authority' the Court examining a
petition seeking a writ of habeas corpus has to
look into the record to examine whether the
subjective satisfaction is acceptable to a
reasonable wisdom and that satisfies rationality
of normal thinking and analyzing process. (Para
36)

D. Interpretation of Statute - Subjective
Satisfaction - Meaning - Expression 'subjective
satisfaction'
means
the
satisfaction
of
a
reasonable man that can be arrived at on the
basis of some material which satisfies a rational
man - It does not refer to whim or caprice of
the authority concerned. (Para 36)

E. Civil Law - National Security Act, 1980 -
Preventive Detention - KR Das Test for
Subjective Satisfaction - No proceedings for
detention were initiated for about good two
months from the day the detenue addressed the
students - It is only after passing of the bail
order, the authorities initiated the process of
detention under the National Security Act, 1980
6 INDIAN LAW REPORTS ALLAHABAD SERIES
- Subjective Satisfaction Test laid down by
Supreme Court in Khudi Ram Das's case relied
upon - There is a serious lack of objective
material on record as may have given rise to a
valid subjective satisfaction with the detaining
authority to preventively detain the detenue on
13.02.2020 - Held, in absence of any material
indicating that the detenue continued to act in a
manner
prejudicial
to
public
order
from
12.12.2019 up to 13.02.2020 or that he
committed any such other or further act as may
have had that effect, the preventive detention
order cannot be sustained. (Para 32, 39, 42, 44
and 48)

Writ petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,917 of 89,404. This is a partial read: ask again with offset=39917 for what follows._

9 All. Nuzhat Perween Vs. State of U.P. & Ors.
5
passed by the respondent no.2/S.S.P.,
Saharanpur, copy of which is appended as
annexure 1 to the writ petition is liable to
be quashed and the same is hereby
quashed.

17. The writ petition is, therefore,
allowed.

18.
 A
writ
of
mandamus
is
accordingly issued directing the Senior
Superintendent
of Police,
Saharanpur/
respondent no.2 to discontinue history
sheet no. 30-A of the petitioner at P.S.
Kutubsher, District Saharanpur.

19. No order as to costs.
----------
(2020)09ILR A5
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Habeas Corpus Writ Petition No. 264 of 2020

Nuzhat Perween ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
In Person, Sri Dileep Kumar, Sri Manish
Singh, Sri Manoj Kumar, Sri N.I. Jafri

Counsel for the Respondents:
G.A., Sri Manish Goyal, Sri Patanjali Mishra,
Sri Sushil Kumar Mishra

A. Constitution of India-Article 21- Right
to Personal Liberty - Under Article 21 of the
Constitution of India along with the right to life,
the right to personal liberty is a precious
fundamental right. This precious fundamental
right must always be protected - The strong
and valuable fabric of our nation is well
designed with support of fundamental rights
given in Part-III of the Constitution - These
rights are golden thread in the fabric, which is
further illuminated by extending protection of
life and personal liberty under Article 21 of the
Constitution of India - True it is, the right so
given under Article 21 is not absolute but no
one can be deprived of his or her personal
liberty
except
on
such
grounds
and
in
accordance
with
such
procedure
as
are
established by law. (Para 29)

B. Civil Law - National Security Act, 1980 -
Preventive Detention - Nature - Preventive
detention is an exceptional mode to curtail
liberty and freedom of a person in exceptionally
rare circumstances. (Para 29)

C. Civil Law - National Security Act, 1980 -
Section 3(2)-Preventive Detention- Subjective
Satisfaction of Authority - Scope of Judicial
Review - Interference by the Court - It is not
open for the courts to substitute their opinion by
interfering with 'subjective satisfaction of the
detaining authority' - However, it does not
mean that the court cannot look into the
material on which detention is based - While
assessing
'subjective
satisfaction
of
the
detaining authority' the Court examining a
petition seeking a writ of habeas corpus has to
look into the record to examine whether the
subjective satisfaction is acceptable to a
reasonable wisdom and that satisfies rationality
of normal thinking and analyzing process. (Para
36)

D. Interpretation of Statute - Subjective
Satisfaction - Meaning - Expression 'subjective
satisfaction'
means
the
satisfaction
of
a
reasonable man that can be arrived at on the
basis of some material which satisfies a rational
man - It does not refer to whim or caprice of
the authority concerned. (Para 36)

E. Civil Law - National Security Act, 1980 -
Preventive Detention - KR Das Test for
Subjective Satisfaction - No proceedings for
detention were initiated for about good two
months from the day the detenue addressed the
students - It is only after passing of the bail
order, the authorities initiated the process of
detention under the National Security Act, 1980
6 INDIAN LAW REPORTS ALLAHABAD SERIES
- Subjective Satisfaction Test laid down by
Supreme Court in Khudi Ram Das's case relied
upon - There is a serious lack of objective
material on record as may have given rise to a
valid subjective satisfaction with the detaining
authority to preventively detain the detenue on
13.02.2020 - Held, in absence of any material
indicating that the detenue continued to act in a
manner
prejudicial
to
public
order
from
12.12.2019 up to 13.02.2020 or that he
committed any such other or further act as may
have had that effect, the preventive detention
order cannot be sustained. (Para 32, 39, 42, 44
and 48)

Writ petition allowed. (E-1)
Cases relied on :-
1. Khudi Ram Das Vs St. of W.B. & 3 ors.;
(1975) 2 SCC 81
2. T.A. Abdul Rahman Vs St. of Kerala & ors.;
(1989) 4 SCC 741
3. Rajinder Arora Vs U.O.I .& ors.; (2006) 4 SCC
796
(Delivered by Hon'ble Govind Mathur, C.J.
& Hon'ble Saumitra Dayal Singh, J.)

1. Being transmitted by the Supreme
Court, this Habeas Corpus petition is before
us for adjudication.

2. Smt. Nuzhat Parween, mother of
the detenue Dr. Kafeel Khan has preferred
this petition assailing validity of the
detention order dated 13th February, 2020
passed by the District Magistrate, Aligarh
invoking powers under sub-Section (2) of
Section 3 of the National Security Act,
1980. Factual matrix of the case is as
follows:-

3. After obtaining the degree of
Doctor in Medicine (MD), Dr. Kafeel
Khan, the detenue entered in service of the
State of Uttar Pradesh being appointed as
Lecturer at Baba Raghav Das Medical
College,
Gorakhpur
(B.R.D.
Medical
College, Gorakhpur) in the month of
August, 2016.

4. An unfortunate incident occurred at
the teaching hospital attached with B.R.D.
Medical
College,
Gorakhpur
in
the
intervening night of 10/11 August, 2017
due to unexpected shortage in supply of
liquid oxygen. In a course of disciplinary
action, the detenue was placed under
suspension on 22nd August, 2019, which
was followed by a memorandum of
allegations dated 12th September, 2017.

5. For the ill-happenings in the
intervening night of 10th/11th August,
2017, a criminal case was also registered
against detenue and eight other Doctors
working at B.R.D. Medical College,
Gorakhpur for the alleged commission of
offences under Sections 409, 308, 120B,
420 Indian Penal Code, 1860, Section 15 of
Indian Medical Council Act, 1956 and
Section 66 of the Information Technology
Act, 2000. The case aforesaid was lodged
on 23rd August, 2017 at Police Station
Hazratganj, Lucknow and the same was
transferred for investigation to Police
Station
Gulhariya,
Gorakhpur.
The
investigating agency arrested the detenue
on 2nd September, 2017 but was released
on bail in pursuance of an order dated 25th
April, 2018 passed by learned single Bench
of this Court.

6. As per the averments contained in
the petition for writ, the petitioner and his
other
family
members
including
the
detenue were continuously harassed and
victimized
by
the
State
authorities
including
the
District
Administration,
Gorakhpur by several means. Details of
certain such events and incidents are given
in paragraphs 24 to 30 of the petition.
9 All. Nuzhat Perween Vs. State of U.P. & Ors.
7

7. In the month of December, 2019,
Government
of
India
introduced
Citizenship Amendment Bill that came to
be passed by both houses of Parliament in
their winter session and was also assented
to by His Excellency, the President of India
on 12th December, 2019. The Act triggered
protests across several parts of the country.
On 12th December, 2019 itself the detenue
and Dr. Yogendra Yadav addressed a
gathering of protesting students at Aligarh
Muslim University, Aligarh. On 13th
December, 2019 at the instance of SubInspector of Police, Sri Danish a criminal
case was lodged against the detenue under
Section 153-A of the Indian Penal Code at
Police Station Civil Lines, Aligarh. The
offences under Section 153B, 109, 505(2)
Indian
Penal
Code
were
added
subsequently
and,
during
course
of
investigation the detenue was arrested on
29th January, 2020. Under an order dated
31st December, 2019 passed by the District
Magistrate, Aligarh he was transferred to
District Jail, Mathura.

8. An application preferred by the
detenue for his release on bail came to be
accepted by the Chief Judicial Magistrate,
Aligarh vide order dated 10th February,
2020. The order aforesaid reads as under:-

"BAIL ORDER

At the Court of Chief Judicial
Magistrate Aligarh

10.02.2020

The accused Dr. Kafeel has
submitted a bail application in the order of
Case Crime No.-700/2019, Section 153A,
153B, 505(2), 109 IPC, P.S. Civil Line,
stating
that
the
applicant/accused
is
innocent and falsely implicated. There is no
criminal history of the accused therefore
bail has been sought.

Opposing the bail application, the
Ld. Assistant Prosecuting Officer, it has
been said that the accused is criminal in
nature and the nature of the crime
committed by the accused is of a serious
nature. Against the above argument of the
prosecution the accused contends that the
offence has not been committed and he has
merely expressed his views of which he has
a freedom guaranteed by the Constitution
of India. He has been falsely accused and
the accused is not in jail but rather on bail.

The accused is detained in the
district prison. On the bail application the
Ld. Advocate for the accused and the Ld.
Assistant Prosecuting Officer were heard
and records were observed.

It is evident from the observation
of the records that the accused has been
held in the district prison for a long time.
The offence committed by the accused is
considered by the Magistrate Court and
punishment by imprisonment of not less
than 7 years. As far as the argument of
prosecution is concerned that the offence
will be repeated by the accused, if the
crime is repeated again after the accused is
released on bail then the prosecution is free
to revoke bail. Therefore, keeping in view
the nature of the crime committed by the
accused and all the facts and circumstances
of the case the reason for granting bail is
sufficient.
The
bail
application
is
acceptable.

ORDER

The bail application is accepted.
The accused is released on bail on
production of two sureties of Rs.60,000/-
and a surety of the same amount with the
condition that he will not repeat the crime
in future.
8 INDIAN LAW REPORTS ALLAHABAD SERIES
Sd/-
CJM

 (Aligarh)"

(translated version of the order as
filed along with the writ petition)

9. Suffice to notice that as per release
order the accused was to be produced
before the Magistrate at 11.00 am on 13th
February, 2020 in the event of discrepancy
in the particulars given in the release order.
Despite the release order dated 10th
February, 2020, the accused (present
detenue) was neither released nor was
produced before the Magistrate, hence the
Chief Judicial Magistrate, Aligarh further
passed another order dated 13th February,
2020 in following terms:-

"From:

Chief Judicial Magistrate,
Aligarh

To:

Superintendent of Jail,

District Jail, Mathura.

Subject:- In relation to the
forwarding of release order, through
special messenger, of the accused in Case
Crime No.700/2019, State vs. Dr. Kafeel,
under section 153-A, 153-B, 505(2), 109
IPC.

This is to inform you that this
court on 10.02.2020, has allowed the bail
application of accused Dr.Kafeel s/o
Shakeel Khan, r/o 172 Basantpur, P.S.
Rajghat, District Gorakhpur. The release
order of above mentioned accused detained
in the district prison of Mathura is being
sent by a Special Messenger, Shri Parmeet
Kumar.

Therefore, after receiving the
release order from the Special Messenger,
ensure the release of abovementioned
accused.

Date:13.02.2020

Sd/-
Chief Judicial Magistrate, Aligarh."

(translated version of the order as
filed along with the writ petition)

10. As per the petitioner, the order
above quoted was presented before the
Superintendent
of
Jail,
District
Jail,
Mathura at about 5.30 pm but was not
accepted intentionally and purposefully.
The receipt of the order was ultimately
shown at 20:20 hours. The order aforesaid
was sent to the Superintendent of Jail,
District Jail, Mathura by hand through a
special messenger Sri Parmeet Kumar. On
the same day i.e. 13th February, 2020 the
Inspector In-charge, Police Station Civil
Line, Aligarh reported to Deputy Inspector
General of Police/Senior Superintendent of
Police, Aligarh to recommend the District
Magistrate, Aligarh for detention of Dr.
Kafeel Khan as per provisions of subSection (2) of Section 3 of the National
Security Act, 1980. The report given by the
Inspector In-charge dated 13th February,
2020 reads as under:-

"To,

Sir
Deputy
Inspector
General/Senior Superintendent of Police

District Aligarh

Through:- Proper Channel

Subject - Proposal to detain Dr.
Kafeel Khan aged 46 years, S/o Shakeel
Khan, R/o 172 Basantpur P.S. Rajghat
District Gorakhpur under the provisions of
Section 3(2) National Security Act 1980.

Sir,

It is submitted that Dr. Kafeel
aged about 46 years S/o Shakeel Khan R/o
172 Basantpur
P.S.
Rajghat
District
Gorakhpur has a criminal and communal
nature. He has incited disharmony by
9 All. Nuzhat Perween Vs. State of U.P. & Ors.
9
provoking the Muslim community against
CAA
&
NRC
and
against
other
communities. There is a situation of panic,
fear and terror amongst the society due to
his acts. The criminal and communal acts
committed by him have posed serious
danger to the public order.

At present, his criminal activities
are described as follows:

Dr. Kafeel addressed about 600
students of AMU on 12.12.2019 at 6:30 pm
at Baba Sayeed Gate of the University of
the University wherein he provoked the
religious sentiments of all the Muslim
students of AMU present and there was
also an attempt to incite hated, enmity and
disharmony against the other community so
that there is an adverse impact on the
harmony between the communities and
disturbance in the public peace. In his
speech he said that Mota Bhai teaches that
we will either become Hindu or Muslim. We
are being made second-class citizens by
way of CAA and they will further disturb
you by introducing NRC, your father's
certificate is not correct. You will be made
to run. This is fight for our identity, we will
have to fight. In his speech, there was an
attempt to provoke hatred in Muslim
students for Hindus, Sikhs, Christians,
Parsis. He attempted to spread hatred and
enmity in the students of AMU for the other
communities. In this regard a complaint
was admitted on 13.12.2019 at 03.10 am by
Sub-Inspector Sh. Danish which was
registered in the P.S. Civil Lines vide Case
Crime No. 700/19 u/s 153A IPC and
thereafter an entry was made on the same
day in P.S. Civil Lines, Aligarh vide G.D.
No. 3 at 03.10 am.

Upon receiving the complaint by
the P.S. and the subsequent handing over of
the case to S.I. Sh. Nizamuddin and upon
his deliberation, S. 153B, 109 and 505(2)
IPC were added on the basis of statements
of Deputy Inspector Sh. Danish, witness
Co. 2290 Akhilesh Kumar, Co. Clerk 2098
Shami Mohammed, video recording of the
speech of Dr. Kafeel and other evidences
which proved that the incitement created
amongst the Muslim students of AMU by
his speech on 12.12.2019 against the other
communities by provoking them was an
attempt to distort the public order in the
district of Aligarh. Due to this on
13.12.2019, around 10,000 students of
AMU attempted to march towards the
Aligarh City who were stopped by the
various efforts with the help of additional
police force, PAC, RAF. Had these students
were not stopped by due counselling they
would have entered the Aligarh District and
would have disturbed the peace and public
order as well as the communal harmony.
On 15.12.2019 around 8:30 pm there was
an attempt by the AMU students to break
open the Bab-e-Syed gate and to go
towards the Aligarh city which was stopped
by the Aligarh city police, local police,
PAC, RAF and the barricading done for the
same. When they were so restricted by the
police, the students tried to throw stones
towards the police and fired with an
intention to kill by which led to a situation
of anarchy and chaos as there were rumors
and stampede. Due to this governmental
property and vehicles were damaged. Many
police officials and staff also got injured.
After hours of efforts the students were sent
back to AMU campus and the public peace
and law and order was saved from getting
distorted by calling additional police force
and RAF who were placed at the sensitive
areas of the district. In reference to the said
event,
Case
Crime
No.703/19
was
registered at the P.S. Civil Line, District
Aligarh on 16.12.2019 u/s 147, 148, 149,
153, 188, 189, 332, 336, 307, 504 and 506
IPC against Sarfaraz Ali and 52 others
along with 1200-1300 unknown AMU
10 INDIAN LAW REPORTS ALLAHABAD SERIES
students and Case Crime No.704/19 was
registered u/s 395, 353, 332 and S. 7 CLA
Act against Salman Imtiaz and 26 others
along with 1200-1300 unknowns. The copy
of their images has been attached.

Dr. Kafeel was arrested from the
Chattrapati Shivaji International Airport,
Mumbai on 30.01.2020 by team of S.T.F.,
Lucknow. He was presented before the
Hon'ble M.M. Court 9, Bandara, Mumbai
who accepted the transit remand till 5 pm
of 02.02.2020.

Case
Crime
No.428/17
was
registered against Dr. Kafeel in P.S.
Gulhira District Gorakhpur u/s 15 of IMC
Act, 1956, S. 7/13 of Prevention Corruption
Act, 1988, S. 308, 409, 420, 120B of IPC
and S. 66 of IT Act. Also, Case Crime
No.558/18 has been registered against him
at P.S. Cantt, Gorakhpur u/s 419, 420, 467,
468, 471 & 120B IPC.

Apart from these, Case Crime
No.241/18 has been registered against Dr.
Kafeel at P.S. Kotwali Nagar, District
Bahraich u/s 332, 353, 452 IPC and S.
15(3) of IMC Act, 1956.

Public order has been disrupted
as a result of the speech delivered to the
AMU students by Dr. Kafeel. In view of the
fear, terror and anger caused in the people
of Aligarh, there are efforts being made to
restore the public order with the aid of the
present police force. Since that provocation
at the Bab-e-Syed gate, there have been
continuous
protests
by
the
students
followed by the protests by women at
Shahajmal since 29.01.2020. Public order
was completely disrupted in Aligarh for
many days. Government schools were
asked to be closed.

Due to the said speech by Dr.
Kafeel and the disturbance caused to the
public order has also been published in the
national newspaper Dainik Jagran, Amar
Ujala and Hindustan which depicts the
fearful situation caused by the incident. The
copies of the said newspapers have been
attached herewith.

He is currently detained in the
Mathura District Jail for Case Crime
No.700/19 u/s 153A, 153B, 109, 505(2) of
IPC. The bail application presented by Dr.
Kafeel has been accepted by the Hon'ble
Court. There is a strong apprehension of
the public order of District Aligarh being
distorted again by Dr. Kafeel by provoking
the students once he comes out of bail. If
Dr. Kafeel comes out on bail he shall surely
incite the students and disturb the peace
and communal harmony in the Aligarh
District.

Since the fierce and communal
speech given by him has had an adverse
and unfavorable impact on the public order
of the District, therefore it is very important
to keep this person detained in jail to
maintain the public order.

Thus, it is requested that the
District
Magistrate,
Aligarh
may
be
pleased to pass an order to detain Dr.
Kafeel, aged about 46 years S/o Shakeel
Khan, R/o 172 Basantpur P.S. Rajghat,
District Gorakhpur under S. 3(2) National
Security Act, 1980.

Sd/-

Amit Kumar

Inspector Incharge

PS Civil Line

District Aligarh"

(translated version of the order as
filed along with the writ petition)

11. Reports of the same nature were
also given by the Circle Officer, Aligarh
9 All. Nuzhat Perween Vs. State of U.P. & Ors.
11
and Superintendent of Police, Aligarh on
13th February, 2020. The reports so given
are verbatim same except some formal
distinctions. On 13th February, 2020 itself
the
Deputy
Inspector
General
of
Police/Senior Superintendent of Police,
Aligarh made a request to the District
Magistrate, Aligarh to pass an order to
detain Dr. Kafeel Khan in accordance with
National Security Act, 1980. The recitals of
the recommendation made by the Deputy
Inspector
General
of
Police/Senior
Superintendent of Police/Aligarh to the
District Magistrate, Aligarh are also largely
in
the
terms
and
tune
to
the
recommendations made to him by other
police officials.

12. The District Magistrate, Aligarh
then invoked the powers under sub-Section
(2) of Section 3 of the National Security
Act, 1980 and passed the order dated 13th
February, 2020 that reads as follows:-

"ORDER

For the reason that, as the
District Magistrate of Aligah I have come
to the conclusion that to prevent the person
known as Dr. Kafeel aged 46 years s/o
Shakeel Khan r/o 172, Basantpur, PS
Rajghat, District Gorakhpur from engaging
in activities that are prejudicial to the
maintenance of public order this order is
necessary.

And therefore, by the power
conferred to me by section 3(2) of The
National Security Act, 1980 I hereby order
that Dr. Kafeel be detained, under simple
category in district jail Mathura in the
custody of the abovementioned prison's SP
u/s 3(2) of the abovementioned act.

Today dated 13/02/2020 with my
Signature and Seal this order is passed.
Sd.
Chandra Bhushan Singh
District Magistrate
District Aligarh"

(translated version of the order as
filed along with the writ petition)

13. Along with the order of detention
the
District
Magistrate, Aligarh
also
supplied the grounds of detention, which
are as follows:-

"OFFICE OF THE DISTRICT
MAGISTRATE, ALIGARH

GROUNDS
OF
DETENTION

Vide No.149 dated 13/02/2020
Dr. Kafeel aged about 46 years s/o Shakeel
Khan R/o 172 Basantpur, PS Rajghat, Distt.
Gorakhpur has been detained under
Section 3(2) of the NSA 1980. The reasons
for your detention u/s 8 of the said Act are
provided as follows by the undersigned:

On the date 12/12/2019 around
18:30 hours you addressed the university
students around 600 in number at the BabE-Sayyed gate of AMU in which in your
address you tried to incite the religious
sentiments of the AMU Muslim students
present in the meeting and to increase
hatred, enmity and disharmony towards the
other community. There was an adverse
effect on the harmony between communities
and disturbance in public peace. In your
speech it was said that Mota Bhai teaches
us that we will become Hindu or Muslim
but not human by CAA, we will be made
second
class
citizens
after
that
by
implementation of NRC they will trouble
you by saying your father's documents are
not correct you will be made to run around.
This is a fight for existence and we will
have to fight. By this address of yours you
have tried to create disharmony and enmity
towards the Hindu, Sikhs, Christian and
12 INDIAN LAW REPORTS ALLAHABAD SERIES
Parsi community in the minds of the
Muslim students of the AMU. You have
tried to instill a feeling of hatred and
enmity in the minds of the Muslim students
of AMU towards other community in this
reference S.I. Danish filed a complaint
13.12.2019 at 0310 hours in Civil Lines
P.S. Aligarh in the said complaint Case
Crime No.700/19 section 153A IPC was
registered and the registered was entered
same date at GD No.3, time 03010 hours in
case Civil Lines, Aligarh.

After receiving the information at
the P.S the investigation in the above said
case was handed over to S.I Shri
Nizamudin.
During
the
investigation
Section 153B, 109 and 505(2) IPC were
added. From the investigation and the
statements given by the complainant S.I
Shri Danish, witness Constable 2290,
Constable Clerk 2098 Shami Mohd. as well
as the video recording of the speech and
other
evidence,
this
fact
has
been
established that you have on 12.12.19 in
AMU made an attempt to disturb the law
and order in District Aligarh by inciting the
Muslim students of AMU against other
communities. Due to this act on 13.12.19
about 10,000 students of AMU attempted to
march towards Aligarh city, who were
stopped by tireless efforts of the police
administration. Had the violent students
not been talked to and stopped then this
crowd would have disrupted the public
order and the communal harmony of the
district, by entering Aligarh city. On
15.12.19 at about 8.30 pm students of AMU
attempted to go to Aligarh city by breaking
open the gate at Bab-E-Sayyed and when
an attempt was made to stop them by
barricading then the violent students
started pelting stones, targeting the police
and administration and fired with the
intention to kill due to which an atmosphere
of anarchy was created and along with
rumors panic was created in the city.
Government property was damaged by
them and due to the aforesaid incident,
many police officers and policemen were
injured . After hours of efforts, the students
of AMU were sent back inside the campus.
In relation to this Case crime No. 703 of
2019 U/S 147, 148, 149, 153, 188, 189,
332, 336, 307, 504, 506 IPC was registered
at P.S. Civil Lines, District Aligarh against
Sarfaraz Ali and 52 named and 1200 to
1300 unknown AMU students. Also, Case
Crime No. 704 of 2019 U/S 395, 353, 332
IPC and 7 CLA act against Salman Imtiaz
and 26 named and 1200-1300 unknown
persons was registered. As a result of your
fierce speech given on 12.12.19 and the
aforesaid acts consequent there to the
public order in district Aligarh was
disrupted.

Inspired
by
your
instigating
speech against theh constitutional CAA and
NRC given to the students of AMU the
public order has been disturbed by the
continuous violent protests through the
students of AMU. Keeping in view the fear,
insecurity and anger amongst the people of
sensitive district Aligarh, with the aid of the
police force present in the district, public
order is being attempted to be restored.
Since that day at Bab-E-Sayyed gate of
AMU continuous protest is being carried
out by the instigated students and in this
sequence protest by women in Shahaj
Mahel is also continuing since 29.01.2020.
For days in Aligarh city public under was
completely disrupted. Government Schools
had to be closed.

The incidents of violent protest
due to your instigating speeches which
have disturbed the public order in the
district have been reported in national
daily, Danik Jagaran, Amar Ujala and
Hindustan which depicts terrible state of
affairs. Due to this feeling of fear and
9 All. Nuzhat Perween Vs. State of U.P. & Ors.
13
insecurities have emerged in the people of
the
sensitive
District
of
Aligarh.
Photocopies of the aforesaid newspaper.

Currently you are incarcerated at
the District jail Mathura in connection with
Case Crime No. 700/19 U/S 153A, 153B,
109, 505(2) IPC. The bail application
preferred by you has been allowed by the
Ld. Court. Through discrete inquiry by the
district police and LIU Aligarh it has been
brought to my knowledge that upon being
relased on bail there is a strong and
complete likelihood of your re-entering
district Aligarh and further instigating the
students by coming to AMU thereby posing
a serious threat to the prevailing public
order.

On the basis of the aforesaid
grounds, I have come to the conclusion that
there is a likelihood of you committing such
acts
which
are
prejudicial
to
the
maintenance of public order and in order to
prevent you from committing such acts
which
would
be
prejudicial
to
the
maintenance of public order it is necessary
that you remain under detention.

You hereby informed by the
undersigned in pursuance of section 8 of
the aforesaid Act that if you seek to
challenge such orders under which you are
detained you may present the same,
through the in charge of the jail where you
have detained, to the detaining authority
(District
Magistrate)
and
the
State
government at the earliest. If
such
application is received after 12 days of this
detention order or after the approval of the
detention order by the State government,
whichever is earlier then the same will not
be considered by the Detaining Authority
(District Magistrate). If you wish to
exercise the right giving such application to
the State Government you may present the
same through the jail where you are
detained addressing the same to the
Secretary
Home
Department
U.P.
Government, Lucknow.

You are further informed in
pursuance of Section 9 & 10 of the
aforesaid Act that if you seek to exercise
you right of giving an application against
the order in pursuance of which you have
been detained to the U.P. State Advisory
Board, Lucknow then you may present the
same through the in charge of the jail
where you are detained addressing the
same to the U.P. State Advisory Board,
Lucknow at the earliest. You are also
informed that your case as per Section 10
of the aforesaid Act will be referred to the
U.P. State Advisory Board within 3 weeks
of the actual date of your detention and if
the same is received with a delay then the
same will not be considered by the
aforesaid Board. You are also informed as
per sub-section (1) of section 11 of the
aforesaid Act if the U.P. State Advisory
Board considered it necessary and if you
seek then the aforesaid Board will grant
you a hearing. If you desired to be heard in
person by the aforesaid board this should
be
specifically
mentioned
in
your
application and the same should be
presented through the incharge of the jail
where you are detained to the State
government.

You are further being informed
u/s 14 of the aforesaid Act that you have a
right to prefer an application to the Central
Government against the order under which
you have been detained.

In case you seek to exercise your
right of giving an application to the Central
Government then you may present the same
addressing it to the Secretary, Government
of India, Ministry of Home (Internal
Security Department, North Block, New
Delhi) through the in charge of the jail
where you have detained.

Date:- 13-02-2020
14 INDIAN LAW REPORTS ALLAHABAD SERIES
Sd/-
Chandrabhushan Singh
District Magistrate
District Aligarh"

(translated version of the order as
filed along with the writ petition)

14. As per the counter affidavit filed
by the Superintendent of Jail, District Jail,
Mathura, the order of detention was served
upon Dr. Kafeel Khan on 14th February,
2020 but no date and time of receipt of the
detention order is disclosed. The detention
order dated 13th February, 2020 came to be
approved by the State Government on 24th
February, 2020 and a copy of the order of
approval was supplied to the detenue on
25th February, 2020. It would also be
appropriate
to
state
that
as
per
Superintendent
of
Jail,
District
Jail,
Mathura the order dated 13th February,
2020
passed
by
the
Chief
Judicial
Magistrate, Aligarh was received in his
office on 13th February, 2020 after locking
up the jail, therefore, the accused (present
detenue) was not released on that day itself.

15. On receiving the order of
detention,
the
detenue
submitted
representations in four sets addressed to the
District Magistrate, Aligarh, the State
Government, the State Advisory Board and
the Central Government on 20th February,
2020. The State Government rejected the
representation on 4th March, 2020 and a
copy of order of rejection was supplied to
the detenue on 5th March, 2020. The
Central
Government
rejected
the
representation on 9th March, 2020. An
opportunity of hearing was provided to the
detenue by the State Advisory Board on
17th March, 2020. The Board then
submitted report to the State Government
and on 1st April, 2020 the State confirmed
the order of detention.

16. By an order dated 6th May, 2020
the State Government invoking powers
under sub-Section (1) of Section 12 of the
National Security Act, 1980 extended the
term of detention for a period of six months
from the date of detention i.e. 13th
February, 2020. The State Government vide
order dated 4th August, 2020 further
extended the term of detention for a period
of three months from the date the term of
six months expires.

17. Being aggrieved by the order of
detention,
its
confirmation
by
the
appropriate
government
and
further
extension under the orders dated 6th May,
2020 and 4th August, 2020, instant petition
is preferred to have a writ in the nature of
Habeas Corpus.

18. The arguments advanced on
behalf of the petitioner are:-

A(i) No material is available on
record to arrive at a satisfaction that
detention of Dr. Kafeel Khan is necessary
to prevent any activity or eventuality
referred under sub-Section (2) of Section 3
of the National Security Act, 1980.

(ii) The satisfaction recorded by
the appropriate government to detain Dr.
Kafeel Khan is absolutely ill-founded and
is based on malicious analysis of the facts
taken into consideration.

(iii) The order of detention is
passed only to frustrate the order passed by
the Chief Judicial Magistrate, Aligarh on
10th February, 2020 directing the State
Government to release Dr. Kafeel Khan
from custody on bail after furnishing
requisite sureties and bail bonds.

B. The detention brought into
effect under order dated 13th February,
2020 deserves to be declared illegal as the
authority making the order of detention did
9 All. Nuzhat Perween Vs. State of U.P. & Ors.
15
not communicate the grounds for detention
sufficient to afford opportunity of making
representation against the order.

C. The detention of Dr. Kafeel
Khan deserves to be revoked as the State of
Uttar Pradesh as well as the Central
Government failed to decide expeditiously
the
representation
submitted
by
the
detenue.

19. Per contra, learned Additional
Advocate General, Sri Manish Goyal
assisted by Sri Patanjali Mishra, learned
Additional Government Advocate while
opposing the petition for writ vehemently
urged that the District Magistrate, Aligarh
only after taking into consideration all the
circumstances and the material made
available to him arrived at a definite
conclusion pertaining to the need of
detaining Dr. Kafeel Khan to prevent him
from acting prejudicially to public order. It
is asserted that the District Magistrate,
Aligarh examined all the events taken place
on 12th December, 2019 and subsequent
thereto, recorded statisfaction that Dr.
Kafeel Khan may cause serious injury to
the maintenance of public order in the city
of Aligarh and, therefore, the detention is
highly desirable.

20. According to learned Additional
Advocate
General,
the
subjective
satisfaction
arrived
by
the
District
Magistrate, Aligarh after consideration of
the material available is not open to be
examined and interfered by this Court
under Article 226 of the Constitution of
India.

21. The arguments advanced by
learned counsel appearing on behalf of the
petitioner
have
also
been
seriously
contested by learned Additional Advocate
General. It is asserted that the police
authorities on 13th February, 2020 brought
into his notice about valid apprehension for
causing injury to the city of Aligarh by Dr.
Kafeel
Khan
and
by
taking
into
consideration the same, the order of
detention was passed. The order was served
upon the detenue at Mathura as soon as
possible. A complete note pertaining to
grounds of detention was also served upon
the detenue. Along with the note, necessary
material was also supplied including a
compact
disk
recording
the
speech
delivered by Dr. Kafeel Khan at Bab-eSyed gate Aligarh Muslim University,
Aligarh. The contents of the speech clearly
indicate that the detenue was intending to
harm communal harmony, peace and
tranquility and for the purpose he prompted
student community to be aggressive. As a
consequence to the address made by him to
a gathering of about 600 students on 12th
February, 2020, nearly 10,000 people
gathered at Bab-e-Syed gate Aligarh
Muslim
Unviersity, Aligarh
on
13th
February, 2020 and caused violence at high
level. The violence erupted was controlled
by the police after huge efforts. A criminal
case in that regard was also lodged in
which Chief Judicial Magistrate, Aligarh
directed for release of Dr. Kafeel Khan on
bail but the District Magistrate, Aligarh
without having any intention to flout the
bail order, examined effect and impact the
arrival of Dr. Kafeel Khan in the city of
Aligarh and; anticipating a serious blow to
maintenance of public order, a definite
opinion was formed to have an order of
detention.

22. So far as the delay in deciding
representation is concerned, it is submitted
that the representation was given by the
detenue on 20th February, 2020 and that
was examined at different levels and was
ultimately decided on 4th March, 2020.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Learned Additional Advocate
General states that the month of February
had 28 days and after 20th, 21st and 22nd
were holidays. The District Magistrate
considered the representation and rejected
the same on 24th March, 2020. The State
Government
too
considered
the
representation expeditiously and rejected
the same on 4th March, 2020. A copy of the
rejection order was served upon the
detenue on 5th March, 2020 itself.

24. In rejoinder, Sri Dileep Kumar,
learned Senior Counsel assisted by Sri
Manoj Kumar, Advocate and Sri N.I. Jafri,
learned Senior Counsel assisted by Sri
Manish Singh, Advocate while reiterating
all the arguments made by him pointed out
that the note containing grounds for
detention does not satisfy the requirements
of Article 22 of the Constitution of India
and also the provisions of National Security
Act, 1980 as the detaining authority did not
look into the complete speech made by Dr.
Kafeel Khan and also failed to understand
its intent. Some portions from here and
there are taken out and are mentioned in the
order of detention. An intentional effort
was made for not providing complete
lecture said to be delivered by Dr. Kafeel
Khan on 12th December, 2019 at Bab-eSyed gate Aligarh Muslim University,
Aligarh. A compact disk was certainly
supplied but no device was made available
to play the same. In absence of such
performing device, the supply of compact
disk is meaningless and that amounts to
non-supply of the material.

25. It is further stated that the Chief
Judicial Magistrate, Aligarh passed the bail
order on 10th February, 2020. In pursuance
to the order aforesaid, necessary bail bonds
and sureties were furnished on very next
day but the accused (present detenue) was
not released. A release order then was
passed but that too was not accepted
intentionally with a view to have an order
of detention in the meantime.

26. According to learned counsel,
examination of complete facts in seriatum
indicates malicious exercise of powers just
to curtail liberty and freedom of Dr. Kafeel
Khan and the same causes serious injury to
the fundamental rights protected under
Article 21 and 22 of the Constitution of
India.

27.

Heard
learned
counsels,
considered the arguments and also perused
the record including the original record
placed before us by Dr. Anil Kumar Singh,
Special Secretary (Home), Government of
U.P., Lucknow and Sri Sanjeev Ojha,
Deputy Collector, Aligarh.

28. The National Security Act, 1980
that was enacted by Parliament in 31st year
of the Republic of India to provide for
preventive detention in certain cases and
for matters connected therewith.

29. Preventive detention is an
exceptional mode to curtail liberty and
freedom of a person in exceptionally rare
circumstances. Under Article 21 of the
Constitution of India along with the right to
life, the right to personal liberty is a
precious fundamental right. This precious
fundamental
right
must
always
be
protected. Under our constitutional scheme
the nation of India is weaved as a
democratic
republic
where
social,
economic and political justice to every
citizen is secured, where liberty of thought,
expression, belief, faith are constitutionally
protected, where every citizen is at equal
status with equal opportunities. The system
of governance is to promote fraternity with
9 All. Nuzhat Perween Vs. State of U.P.