# Parvendra Kumar v. Union of India & Ors

- **Citation:** (2022) 4 ILRA 651
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-26
- **Case number:** Habeas Corpus Writ Petition No. 5 of 2022
- **Bench:** Ashwani Kumar Mishra, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvendra-kumar-v-union-of-india-ors-48285
- **Pages:** 17

## Headnote

A. Criminal Law - Constitution of India, 1950
- Article 226 - Indian Penal Code, 1860Sections 147, 148, 149, 302, 504, 506 & 34 -
Criminal Law Amendment Act-Section 7challenge to-Order of detention- murderinformant
brother
was
killed-accused
persons enmity with informant since they
had not voted for accused person when he
contested for the office of village pradhanthe order of detention passed by District
Magistrate u/s 3(3) of the National Security
Act, 1980 does not satisfy the conditions
exists in Section 3(2) of the Act-the
application of mind on part of the District
Magistrate must be reflected or else the
satisfaction itself of the detaining authority
would be vitiated-ground of detention,
language as well as phraseology of facts
remains unaltered and clearly suggest lack
of independent application of mind on the
part of District Magistrate, such satisfaction
on the part of the sponsoring authority
would not suffice-there is nothing to
indicate that the District Magistrate applied
his mind to the question whether an order
of detention was necessary despite the fact
that the petitioner was already in custody in
connection with the criminal case-the cases
of other two petitioner are identical and
they are released forthwith, unless they are
warranted in connection with some other
cases- the grounds of detention merely
refers to the fact that the petitioner had
applied for grant of bail in one case alone-no
reference of filing of any bail application in
the grounds of detention in the other casesthis omission appears to be a direct
consequence of failure in that regard
contained in the recommendation of the
sponsoring authority wherein also no fact
about filing of bail application are recordedThus, the detention order suffers from
jurisdictional infirmity-the detention order
stands quashed. (Para 1 to 37)

B. In the instant case, the District
Magistrate, State Government did not
discharge
the
first
of
the
two-fold
obligation and rejected the petitioner's
representation
in
a
routine
manner
without application of independent mind.
The normal rule of law is that when a
person commits an offence or a number of
offences, he should be prosecuted and
punished in accordance with the normal
appropriate criminal law; but if he is
sought to be detained under any of the
preventive detention laws as may often be
necessary to prevent further commission
of such offences, then the provisions of
Article 22(5) must be complied with. It
provides that the detaining authority shall
as soon as may be communicate the
grounds of detention and shall afford him
the earliest opportunity of making a
representa

## Text

_Characters 0–39,766 of 59,397. This is a partial read: ask again with offset=39766 for what follows._

4 All. Parvendra Kumar Vs. Union of India & Ors.
651
petition till the amount is deposited. The
amount already deposited be deducted from
the amount to be deposited.

22. Since, it is held by us that owner
and driver of the offending truck have
failed to prove that the truck-driver was
having valid driving-licence on the date of
accident,
we
direct
that
amount
of
compensation shall be paid by respondent
No.2-National Insurance Co., Insurance
Company of the offending truck and after
that, it will be open to the Insurance
Company to recover the amount, paid, from
the owner of the truck.

23. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansagori P. Ladhani vs. The Oriental
Insurance Company Ltd., [2007(2) GLH
291] and this High Court in total amount of
interest, accrued on the principal amount of
compensation is to be apportioned on
financial year to financial year basis and if
the interest payable to claimant for any
financial year exceeds Rs.50,000/-, insurance
company/owner is/are entitled to deduct
appropriate amount under the head of 'Tax
Deducted at Source' as provided u/s 194A (3)
(ix) of the Income Tax Act, 1961 and if the
amount of interest does not exceeds
Rs.50,000/- in any financial year, registry of
this Tribunal is directed to allow the
claimants to withdraw the amount without
producing the certificate from the concerned
Income- Tax Authority. The aforesaid view
has been reiterated by this High Court in
Review Application No.1 of 2020 in First
Appeal From Order No.23 of 2001 (Smt.
Sudesna and others Vs. Hari Singh and
another) and in First Appeal From Order
No.2871 of 2016 (Tej Kumari Sharma v.
Chola Mandlam M.S. General Insurance
Co. Ltd.) decided on 19.3.2021 while
disbursing the amount.

24. It is made clear that learned
Tribunal has discharged the liability of
respondents 1, 3 and 4. The liability of owner
of the truck, i.e., respondent No.2 cannot be
discharged because the owner of the vehicle
is liable to pay the compensation and
Insurance Company has to indemnify the
liability of the owner. Hence, we upturn the
finding of Tribunal to the extent it discharged
the liability of owner of the truck.

25. It is pertinent to mention that both
the appellants (mother and father of the
deceased) shall get equal amount of enhanced
compensation.

26. The Tribunal shall follow the
guidelines issued by the Hon'ble Apex Court
in Bajaj Allianz General Insurance Company
Privae Ltd. vs. Union of India and others vide
order dated 27.1.2022, as the prupose of
keeping compensation is to safeguard the
interest of the claimants. Since long time has
elapsed, the amount be deposited in the
Saving Bank Account of claimant(s) in a
nationalized Bank without F.D.R.
----------
(2022)04ILR A651
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Habeas Corpus Writ Petition No. 5 of 2022
Connected with
Habeas Corpus Writ Petition Nos. 6 of 2022 & 8
of 2022

Parvendra Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Kumar Mishra, Sri Amit Daga
652 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A., A.S.G.I., Sri Alok Ranjan Mishra

A. Criminal Law - Constitution of India, 1950
- Article 226 - Indian Penal Code, 1860Sections 147, 148, 149, 302, 504, 506 & 34 -
Criminal Law Amendment Act-Section 7challenge to-Order of detention- murderinformant
brother
was
killed-accused
persons enmity with informant since they
had not voted for accused person when he
contested for the office of village pradhanthe order of detention passed by District
Magistrate u/s 3(3) of the National Security
Act, 1980 does not satisfy the conditions
exists in Section 3(2) of the Act-the
application of mind on part of the District
Magistrate must be reflected or else the
satisfaction itself of the detaining authority
would be vitiated-ground of detention,
language as well as phraseology of facts
remains unaltered and clearly suggest lack
of independent application of mind on the
part of District Magistrate, such satisfaction
on the part of the sponsoring authority
would not suffice-there is nothing to
indicate that the District Magistrate applied
his mind to the question whether an order
of detention was necessary despite the fact
that the petitioner was already in custody in
connection with the criminal case-the cases
of other two petitioner are identical and
they are released forthwith, unless they are
warranted in connection with some other
cases- the grounds of detention merely
refers to the fact that the petitioner had
applied for grant of bail in one case alone-no
reference of filing of any bail application in
the grounds of detention in the other casesthis omission appears to be a direct
consequence of failure in that regard
contained in the recommendation of the
sponsoring authority wherein also no fact
about filing of bail application are recordedThus, the detention order suffers from
jurisdictional infirmity-the detention order
stands quashed. (Para 1 to 37)

B. In the instant case, the District
Magistrate, State Government did not
discharge
the
first
of
the
two-fold
obligation and rejected the petitioner's
representation
in
a
routine
manner
without application of independent mind.
The normal rule of law is that when a
person commits an offence or a number of
offences, he should be prosecuted and
punished in accordance with the normal
appropriate criminal law; but if he is
sought to be detained under any of the
preventive detention laws as may often be
necessary to prevent further commission
of such offences, then the provisions of
Article 22(5) must be complied with. It
provides that the detaining authority shall
as soon as may be communicate the
grounds of detention and shall afford him
the earliest opportunity of making a
representation against the order. The
representation, if any, submitted by the
detenu is meant for consideration by the
Appropriate
Authority
without
any
unreasonable delay as it involves the
liberty of a citizen guaranteed by Article
19
of
the
Constitution.
the
nonconsideration
of
representation
tantamount to non-compliance of Article
22(5) of the Constitution. (Para 29)
The writ petition is allowed. (E-6)

List of Cases cited:

1. Jai Singh & ors. Vs St. of J &K (1985) 1 SCC
561

2. Vashdev Adnani Vs St. of Mah. & ors. (2005)
8 SCC 390

3. Sarabjeet Singh Mokha Vs DM, jabalpur &
ors. (2021) SCC OnLine SC 1019

4. Ayya @ Ayub Vs St. of U.P. & anr. (1989) 1
SCC 374

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Detention orders of different dates,
founded on a common basis, have been
passed against three petitioners, which are
under challenge in the present bunch of
habeas corpus writ petitions. We have
heard all three petitions together and are
4 All. Parvendra Kumar Vs. Union of India & Ors.
653
being disposed off by this common
judgment.

2. Habeas Corpus Writ Petition No.5
of 2022 is treated as the leading case
wherein the order of detention passed by
District Magistrate, Bijnor is challenged
alongwith
the
order
of
the
State
Government approving it and the order
rejecting petitioner's representation. Orders
extending the term of detention, from time
to time, are also assailed. Similar reliefs are
claimed in the other connected petitions, as
well.

3. Basis of impugned detention orders
in all three cases is the implication of
petitioners in the First Information Report
dated 19.5.2021, registered as Case Crime
No.291 of 2021, under Sections 147, 148,
149, 302, 504, 506, 34 IPC and Section 7 of
the Criminal Law Amendment Act, Police
Station Chandpur, District Bijnor. This FIR
requires a little elaboration at the outset.
Informant in the said FIR is one Rajeev son
of Chhatrapal, resident of Village Baseda,
Police Station Chandpur, District Bijnor,
whose brother Sanjay was killed at 8.30 pm
on 18.5.2021. The FIR was lodged on
19.5.2021 at 1.44 am. As per the FIR the
accused persons namely Ajab Singh, Nikhil
Kumar,
Shailendra
Singh,
Parvendra
Kumar and Sunil Kumar maintained enmity
with the informant and his family, since
they had not voted for Ajab Singh,when he
contested for the office of Village Pradhan,
despite request made in that regard. On
18.5.2021 at about 8.30 pm accused
persons armed with country made firearm
(Tamancha), gun and other arms attacked
the informant's house and Ajab Singh shot
dead the informant's brother Sanjay. Other
accused including the three petitioners are
said to have indiscriminately fired creating
an atmosphere of terror in the village. The
incident is alleged to have been seen by
Brahmapal son of Gangaram, Kalyan son
of Atar Singh and Ranpal son of Zileram. It
is claimed in the FIR that widespread fear
prevailed in the village and people were
running helter-skelter. The villagers had
locked themselves in their houses by
shutting their doors and windows from
inside. Specific role of firing in which the
deceased died however is attributed to Ajab
Singh while all other accused (three
petitioners herein) were assigned the role of
carrying Tamancha (Country made Pistol)
and Bandook (gun) and indiscriminately
firing upon the informant's side. All three
petitioners were arrested and applied for
bail. It is at this stage that the Station
House Officer recommended action against
the petitioners under the National Security
Act, 1980 (hereinafter referred to as the
''Act of 1980') leading to petitioners'
detention under the Act of 1980.

4. The chronology of events in the
leading Habeas Corpus Writ Petition No.5
of 2022 is that the order of detention came
to be passed against the petitioner on
27.8.2021 by the District Magistrate, Bijnor
on the basis of a recommendation made by
the sponsoring authority. This order has
also
been
approved
by
the
State
Government on 6.9.2021. It is alleged that
a representation was made against the
detention order by the petitioner on
6.9.2021. However, an issue was raised
about the filing of representation on the
said date and consequently we summoned
the original records to find that the
representation in fact was made only on
8.9.2021 instead of 6.9.2021, as is alleged
in the petition. Upon a perusal of original
records it transpires that the representation
was sent on the same date to the office of
District
Magistrate,
Bijnor
and
the
Additional District Magistrate, Bijnor on
654 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf of the District Magistrate called for
the comments of Superintendent of Police,
Bijnor in the matter. The representation
was consequently sent to the Station House
Officer of the concerned police station for
his comments in the matter. The comments
were submitted on 13.9.2021 to the office
of Superintendent of Police, who forwarded
the same to the District Magistrate
alongwith his comments on the same date.
The
District
Magistrate
rejected
the
representation on 13.9.2021. The decision
was informed to the petitioner through the
authorities on the same date. The District
Magistrate simultaneously forwarded the
copies of representation to the State
Government on 14.9.2021. The State
Government after due deliberation and
examination
of
records
rejected
the
representation on 21.9.2021, which order
has been communicated to the detenue on
22.9.2021. The representation was also
forwarded to the Central Government by
the District Magistrate on 13.9.2021, which
came to be rejected on 22.9.2021. The term
of 3 months detention has been extended by
subsequent orders dated 23.11.2021 and
15.2.2022, which are also under challenge.

5. In Habeas Corpus Writ Petition
No.6 of 2022, filed by Nikhil Kumar, the
order of detention came to be passed on
22.10.2021. It has been approved by the
State Government on 1.11.2021. The
representation
against
the
order
of
detention was submitted on 8.11.2021,
which
was
rejected
by
the
District
Magistrate on 29.11.2021, while the
representations made to State Government
came to be rejected on 7.12.2021 and the
Central
Government
rejected
it
on
8.12.2021. Aggrieved by these orders as
also the extension of detention vide
subsequent orders, the petitioner is before
this Court.

6. In Habeas Corpus Writ Petition
No.8
of
2022,
Surendra
Singh
@
Shailendra Singh questions the detention
order passed by the District Magistrate,
Bijnor on 6.9.2021. A representation was
made against this order on 30.9.2021.
Comments in the matter were called from
the office of Superintendent of Police,
Bijnor. Comments were submitted in the
matter on 4.10.2021 and the District
Magistrate
after
considering
such
comments rejected the representation on
5.10.2021. The representation made to the
State
Government
was
rejected
on
7.10.2021 while the Central Government
rejected
petitioner's
representation
on
18.10.2021. The detention order was also
approved by the State Government on
26.10.2021. The period of detention has
been extended for six months vide order
dated 23.11.2021 and has further been
extended for a period of nine months vide
order dated 24.2.2022, which are under
challenge.

7. The aforesaid three petitions have
been entertained and counter affidavits
have been filed by the State Government
and its authorities, as also the Union
Government, to which rejoinder affidavits
have been filed on behalf of the petitioners.
The three petitions have thus been heard on
different dates and are being disposed off
by this common judgment.

8. We have heard Sri Amit Daga,
learned counsel for the petitioners, Sri Alok
Ranjan Mishra, Sri Kameshwar Singh and
Ms. Annapurna Singh for the Union of
India and Sri Ali Murtza, learned AGA for
the State and its authorities.

9. Learned counsel for the petitioners
in support of the writ petitions has made
following submissions:-
4 All. Parvendra Kumar Vs. Union of India & Ors.
655

(i) That the detention order passed by
the District Magistrate concerned lacked
application of mind on his part inasmuch as
the proposals made by Sponsoring Authority
have been virtually copied without any
satisfaction having been recorded at his own
level. The grant of routine approval by the
State is also questioned on the ground of it
being mechanical in nature.

(ii) The alleged offence, which forms
the basis of detention order at best depicts
instance of law and order with no trappings
of public order involved in it. It is also stated
that there is no allegation of panic etc. caused
amongst public on account of alleged
offence.

(iii) It is then submitted that the
apprehension that the detainee would be
released or that he would cause similar
offence in future is not based on any material
brought on record.

(iv) It is lastly contended that there was
delay
occasioned
in
disposal
of
the
representation against the order of detention
at every level i.e. at the level of District
Magistrate; State Government; and also
Central Government, which vitiates the order
of detention itself.

10. We may record that during the
course of arguments original records have
been produced by the office of District
Magistrate, State Government and also
Central Government on various aspects in
order to consider the respective submissions
advanced by the counsel for the parties. The
original records of the concerned Magistrate
containing case diaries in Case Crime No.
291 of 2021 have also been produced before
us in sealed envelope, on our directions and
have been perused.

11. First and foremost, it is urged on
behalf of petitioners that there is no
independent application of mind on part of
the District Magistrate to the facts recorded
in the proposal of the sponsoring authority
with regard to existence of conditions
justifying exercise of power under Section
3(3) of the Act of 1980 in as much as the
order of detention virtually copies the
recommendation of sponsoring authority,
line by line, page by page except for his
conclusion contained in one sentence,
recording his satisfaction.

12.

We
have
perused
the
recommendation made by the sponsoring
authority i.e. the Officiating Inspector,
Police Station Chandpur, District Bijnor;
the forwarding letter of the Superintendent
of Police, Bijnor, as well as the order of
detention passed by the District Magistrate,
which contains the grounds of detention.
Learned counsel for the petitioners has
taken us through the recommendation made
by the sponsoring authority, as also the
grounds of detention accompanying the
detention order dated 27.8.2021, in order to
submit that the order of detention lacks due
application of mind on part of the detaining
authority, which renders the order of
detention itself bad in law.

13. The recommendation made by the
sponsoring
authority
is
contained
in
Annexure-3 and is addressed to the
Superintendent of Police, Bijnor. The
recommendation runs into 65 pages.
Specific reference is made in it to the
incident of 18.5.2021 in which the
petitioners alongwith Ajab Singh and other
accused persons came to the house of the
deceased Sanjay armed with Tamancha
(countrymade pistol) and Bandook (gun)
and resorted to indiscriminate firing, which
allegedly caused an atmosphere of terror in
the village and the public order was
disturbed. Reference has also been made to
the materials collected during the course of
656 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation, on the basis of which
chargesheet has been submitted in the
matter against the petitioners. Further
materials
forming
part
of
the
recommendation
by
the
sponsoring
authority includes the statements recorded
of various persons, even after submission
of chargesheet, on the basis of which it is
alleged that in the event petitioners are
released on bail, they are likely to indulge
in activities prejudicial to public order.

14. The orders impugned have been
passed in exercise of powers under the Act
of 1980. The Act of 1980 came to be
introduced with an intent that law and order
situation in the country is tackled in a most
determined and effective way by containing
social and antisocial elements. The object
was to ensure security and defence of State
as also the public order and ensure that
other services essential to the community
are
not
disrupted.
The
appropriate
Government i.e. Central Government or the
State Government was thus conferred
authority to pass orders of preventive
detention against a person with a view to
prevent 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. The order of
detention purportedly is alleged to have
been passed by the District Magistrate
exercising his jurisdiction under sub section
(3) of Section 3 of the Act of 1980, upon
being satisfied that exigency stipulated in
sub-section (2) of Section 3 exists in the
facts of the case. Section 3(2) and (3) of the
Act of 1980 are reproduced hereinafter:-

"3(2) The Central Government or the
State Government may, if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the security of the State or
from acting in any manner prejudicial to
the maintenance of Public order or from
acting in any manner prejudicial to the
maintenance of supplies and services
essential to the community it is necessary
so to do, make an order directing that such
person be detained.

Explanation.--For the purposes of this
sub-section,
"acting
in
any
manner
prejudicial to the maintenance of supplies
and services essential to the community"
does not include "acting in any manner
prejudicial to the maintenance of supplies
of
commodities
essential
to
the
community" as defined in the Explanation
to sub-section (1) of section 3 of the
Prevention
of
Blackmarketing
and
Maintenance of Supplies of Essential
Commodities Act, 1980 (7 of 1980), and
accordingly, no order of detention shall be
made under this Act on any ground on
which an order of detention may be made
under that Act.

(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 that the period specified in
an order made by the State Government
under this sub-section shall not, in the first
instance, exceed three months, but the State
Government may, if satisfied as aforesaid
that it is necessary so to do, amend such
4 All. Parvendra Kumar Vs. Union of India & Ors.
657
order to extend such period from time to
time by any period not exceeding three
months at any one time."

15. Sub-section (4) of Section 3 of the
Act of 1980 is also relevant, which is
reproduced hereinafter:-

"3(4) When any order is made under
this section by an officer mentioned in subsection (3), he shall forthwith report the
fact to the State Government to which he is
subordinate together with the grounds on
which the order has been made and such
other particulars as, in his opinion, have a
bearing on the matter, and no such order
shall remain in force for more than twelve
days after the making thereof unless, in the
meantime, it has been approved by the
State Government:

Provided that where under section 8
the grounds of detention are communicated
by the officer making the order after five
days but not later than ten days from the
date of detentions, this sub-section shall
apply subject to the modification, that, for
the words "twelve days", the words "fifteen
days" shall be substituted."

16. Power of preventive detention,
therefore, is conferred on the appropriate
Government only to prevent a person from
acting in any manner prejudicial to the
security of the State or from acting in any
manner prejudicial to maintenance of
public order or from acting in any manner
prejudicial to the maintenance of supplies
and services essential to the community.

17. The power under sub-section (3)
of Section 3 can also be exercised by the
District Magistrate or the Commissioner of
Police in respect of areas falling within
their limits of jurisdiction. Where such an
order is passed by the District Magistrate,
he must satisfy himself with regard to
existence of conditions referred to in subsection (2) of Section 3 of the Act of 1980.
The exercise of power by the District
Magistrate under sub-section (3), therefore,
is dependent upon the existence of
conditions stipulated in sub-section (2) of
Section 3 of the Act of 1980 and such
satisfaction has to be of the District
Magistrate or the Commissioner of Police,
as the case may be. The first argument
advanced in the matter is that such
satisfaction on part of the authority
concerned i.e. detaining authority/District
Magistrate, is missing in the facts of the
case which initiates the order of detention
as well as all other consequential orders
challenged in the writ petitions.

18.

We
have
perused
the
recommendation
of
the
sponsoring
authority as also the grounds of detention
passed by the District Magistrate and we
find substance in the argument advanced on
behalf of the petitioners that independent
satisfaction with regard to existence of
conditions under Section 3(2) of the Act of
1980 is wanted on part of the District
Magistrate.

19. The order of the District
Magistrate is in two parts. The first part is
the operative portion which directs the
petitioners to be detained in District Jail
Bijnor, by invoking his jurisdiction under
sub-section (3) of Section 3 as conditions
exists for exercise of power under subsection (2) of Section 3 of the Act of 1980.
This part of order is contained in the
standard format in which the only details of
detenue as also the date of order varies. It is
the second part of the order that contains
the grounds of detention and contains the
satisfaction of detaining authority about
existence of conditions referred to in sub-
658 INDIAN LAW REPORTS ALLAHABAD SERIES
section (2) of Section 3 of the Act of 1980
so as to justify his order passed under subsection (3). The grounds of detention starts
at page 121-A of the paper book by
mentioning that the petitioner is a man of
desperate and cunning nature and goes on
to refer to the incident of 18.5.2021 in
respect of which FIR is registered as Case
Crime No. 291 of 2021. The order then
proceeds to virtually copy, page by page,
line by line the contents of the proposal of
the sponsoring authority. Page 1 to 55 of
the grounds of detention, therefore, are
copied from the recommendations of the
sponsoring authority. The contribution of
District Magistrate in the entire 55 pages is
his satisfaction that petitioners release is
detrimental to maintenance of public order
and his preventive detention is required.

20. Contentions are advanced by
respective counsels on the aspect relating to
application of mind on part of the District
Magistrate, as also the manner of its
ascertainment, for the purposes of arriving
at his independent satisfaction with regard
to existence of conditions referred to in
sub-section (2) of Section 3 of the Act of
1980 so as to justify invocation of
jurisdiction under sub-section (3).

21. Sri Ali Murtaza, learned AGA
submits that the material on the basis of
which such satisfaction is to be recorded by
the District Magistrate remains the same, as
is referred to by the sponsoring authority in
his report and, therefore, the District
Magistrate has done no wrong while
copying facts from the recommendation of
the sponsoring authority.

22. While we do agree that facts and
circumstances which have led to the
recommendation
by
the
sponsoring
authority for preventing detention of
petitioners remains the same on which
satisfaction of the District Magistrate is to
be based, but from the phraseology of the
order and reference of material relied upon
by the District Magistrate in the order of
detention the application of mind on part of
the District Magistrate must be reflected or
else the satisfaction itself of the detaining
authority would be vitiated.

23. Page by page we are shown that
grounds of detention contained in the order
of the District Magistrate is virtual copy of
the recital contained in the recommendation
of the sponsoring authority. Language as
well as phraseology of facts remains
unaltered and clearly suggests lack of
independent application of mind on part of
the District Magistrate.

24. Except for the satisfaction
recorded by the District Magistrate in one
sentence that on the basis of materials
referred to in the grounds of detention, he is
satisfied about existence of conditions
warranting petitioners' preventive detention
there is nothing on record which may even
remotely suggest that District Magistrate
has cared to read the recommendation of
the sponsoring authority or satisfy himself
about existence of conditions which justify
the
passing
of
order
of
preventive
detention.

25. The satisfaction that conditions
exist to detain a citizen with a view to
preventing him from acting in any manner
prejudicial to the maintenance of public
order has to be of the District Magistrate or
the Commissioner of Police, as the case
may be. Such satisfaction on part of the
sponsoring authority would not suffice.
While District Magistrate is entitled to go
through the recommendation made by the
sponsoring authority for exercise of power
4 All. Parvendra Kumar Vs. Union of India & Ors.
659
under sub-section (3) of Section 3, but the
satisfaction with regard to existence of
necessary conditions has to be of the
designated authority i.e. District Magistrate
alone, which must be reflected in his own
order.

26. The satisfaction of the detaining
authority is sine qua non for exercise of
jurisdiction
under
sub-section
(3)
of
Section 3 of the Act of 1980. Recording of
satisfaction
by
the
District
Magistrate/detaining authority in his own
language would be necessary to indicate
application of mind on part of the detaining
authority. The satisfaction of the detaining
authority may not be as exhaustive as is
contained in the proposal of the sponsoring
authority
but
he
must
record
his
independent satisfaction with regard to
existence
of
conditions
justifying
invocation of power under Section 3(3) of
the Act of 1980. His satisfaction need not
be a virtual reproduction of all facts
narrated in the recommendation of the
sponsoring authority but must concisely
refer to the materials on record on the basis
of which he has come to the conclusion
about existence of conditions justifying
preventive detention of the detenue.

27. Importance of application of mind
on part of the detaining authority and his
independent satisfaction about existence of
necessary conditions has been emphasised
by the Supreme Court in Jai Singh and
Others Vs. State of Jammu & Kashmir,
(1985) 1 SCC 561, wherein the Supreme
Court has observed as under:-

"These seven writ petitions under
Article 32 of the Constitution have to be
allowed on the sole ground that there has
been a total non-application of the mind by
the
detaining
authority,
the
District
Magistrate of Udhampur. We had called for
the records and the learned counsel for the
State of Jammu & Kashmir has produced
the same before us. First taking up the case
of Jai Singh, the first of the petitioners
before us, a perusal of the grounds of
detention shows that it is a verbatim
reproduction of the dossier submitted by
the
senior
Superintendent
of
Police,
Udhampur to the District Magistrate
requesting that a detention order may
kindly be issued. At the top of the dossier,
the name is mentioned as Sardar Jai Singh,
father's name is mentioned as Sardar Ram
Singh and the address is given as village
Bharakh, Tehsil Reasi. Thereafter it is
recited "The subject is an important
member of...." Thereafter follow various
allegations against Jai Singh, paragraph by
paragraph. In the grounds of detention, all
that the District Magistrate has done is to
change the first three words "the subject is"
into "you Jai Singh, s/o Ram Singh,
resident of village Bharakh, Tensil Reasi".
Thereafter word for word the police dossier
is repeated and the word "he" wherever it
occurs referring to Jai Singh in the dossier
is changed into 'you' in, the grounds of
detention. We are afraid it is difficult to
find greater proof of non-application of
mind. The liberty of a subject is a serious
matter and it is not to be trifled with in this
casual, indifferent and routine manner. We
also notice that in the petition filed by the
detenu, he had expressly alleged that he
and the others had already been taken into
custody in connection with a criminal case
on July 6, 1984 itself and all of them were
in custody since then. The detenu has given
details of where he was taken and when. He
has also referred to the circumstance that an
application for bail was moved on his
behalf on the 18th before the High Court
and it was only thereafter that the order of
detention was made. These facts have not
660 INDIAN LAW REPORTS ALLAHABAD SERIES
been denied in the counter-affidavit filed
by the respondents. In fact we are unable to
find anything in the records produced
before us, either in the police dossier
submitted to the District Magistrate for
action or in any other document forming
part of the record that the District
Magistrate was aware that the petitioner
was already in custody. There is nothing to
indicate that the District Magistrate applied
his mind to the question whether an order
of detention under the Jammu & Kashmir
Safety Act was necessary despite the fact
that the petitioner was already in custody in
connection with the criminal case. The
cases of the other six petitioners are
identical and in the circumstances, we have
no option, but to direct their release
forthwith, unless they are wanted in
connection with some other case or cases."

28. Judgment in Jai Singh (supra) has
been followed in Rajesh Vashdev Adnani
Vs. State of Maharashtra and others, (2005)
8 SCC 390, wherein the Supreme Court
observed as under in para 9 to 13:-

"9. Perusal of the proposal made by
the sponsoring authority and the order of
detention passed by the detaining authority
would show that except by substituting
word "he" by "you" no other change was
effected.

10. But for the said change the
proposal and the order of detention is
verbatim the same.

11. Mr Naphade, learned Senior
Counsel appearing for the respondent
submitted that from the records produced
before us it would be evident that there had
been due application of mind on the part of
Respondent 2 in passing the order of
detention. This may be so but keeping in
view the safeguards envisaged under
Article 22 of the Constitution it was
absolutely
essential
for
the
second
respondent herein to apply her mind not
only at the time of grant of approval to the
proposal for detention but also when the
actual order of detention and grounds
thereof
are
prepared.
To
the
aforementioned extent there has been no
application of mind on the part of the
second respondent herein, and, thus, we are
of the opinion that the impugned order of
detention dated 3-11-2004 cannot be
sustained.

12. The views we have taken derive
support from the judgment of this Court in
Jai Singh v. State of J&K, (1985) 1 SCC
561, wherein the Division Bench held:
(SCC pp. 561-62, para 1)

"We had called for the records and the
learned counsel for the State of Jammu &
Kashmir has produced the same before us.
First taking up the case of Jai Singh, the
first of the petitioners before us, a perusal
of the grounds of detention shows that it is
a verbatim reproduction of the dossier
submitted by the Senior Superintendent of
Police, Udhampur to the District Magistrate
requesting that a detention order may
kindly be issued. At the top of the dossier,
the name is mentioned as Sardar Jai Singh,
father's name is mentioned as Sardar Ram
Singh and the address is given as Village
Bharakh, Tehsil Reasi. Thereafter it is
recited ''The subject is an important
member of....' Thereafter follow various
allegations against Jai Singh, paragraph by
paragraph. In the grounds of detention, all
that the District Magistrate, has done is to
change the first three words ''the subject is'
into ''you Jai Singh, s/o Ram Singh,
resident of Village Bharakh, Tehsil Reasi'.
Thereafter word for word the police dossier
is repeated and the word ''he' wherever it
occurs referring to Jai Singh in the dossier
is changed into ''you' in the grounds of
detention. We are afraid it is difficult to
4 All. Parvendra Kumar Vs. Union of India & Ors.
661
find greater proof of non-application of
mind. The liberty of a subject is a serious
matter and it is not to be trifled with in this
casual, indifferent and routine manner."

13. For the reasons aforementioned the
order of detention passed against the detenu
Vashdev Gobardhan as also the impugned
judgment cannot be sustained. It is quashed
accordingly. He is directed to be released if
not wanted in connection with any other
case."

29. Constitutional safeguards and
legislative scheme of the Act of 1980 has
been referred to in a recent judgment of the
Supreme Court in Sarabjeet Singh Mokha
Vs. District Magistrate, Jabalpur and
others, 2021 SCC OnLine SC 1019.
Though the aspect for examination was
distinct there i.e. delay in disposal of
representation,
but
the
constitutional
safeguards in such matters have been
emphasised by the Court in following
words:-

"17. Article 22 of the Constitution
provides specific protections to undertrials
and detainees in India. The framers of the
Constitution, who were also our freedom
fighters, were conscious of founding a
polity that secured civil and political
freedoms to its
citizens. Dr. B R
Ambedkar, while proposing the article,
noted the necessity of retaining the concept
of preventive detention "in the present
circumstances of the country". However,
the discontinuity from the colonial regime
lay
in
the
introduction
of
strict
countervailing measures that ensured that
"exigency of liberty of the individual [is
not] placed above the interests of the State"
in all cases.

18. The specific provisions relating to
preventive detention under Article 22 were
framed in the following terms:

"(4) No law providing for preventive
detention shall authorise the detention of a
person for a longer period than three
months unless-

(a) an Advisory Board consisting of
persons who are, or have been, or are
qualified to be appointed as, Judges of a
High Court has reported before the
expiration of the said period of three
months that there is in its opinion sufficient
cause for such detention:

Provided that nothing in this subclause shall authorise the detention of any
person beyond the maximum period
prescribed by any law made by Parliament
under sub-clause (b) of clause (7); or

(b) such person is detained in
accordance with the provisions of any law
made by Parliament under sub-clauses (a)
and (b) of clause (7).

(5) When any person is detained in
pursuance of an order made under any law
providing for preventive detention, the
authority making the order shall, as soon as
may be, communicate to such person the
grounds on which the order has been made
and
shall
afford
him
the
earliest
opportunity of making a representation
against the order.

(6) Nothing in clause (5) shall require
the authority making any such order as is
referred to in that clause to disclose facts
which such authority considers to be
against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which,
and the class or classes of cases in which, a
person may be detained for a period longer
than three months under any law providing
for preventive detention without obtaining
the opinion of an Advisory Board in
accordance with the provisions of subclause (a) of clause (4);

(b) the maximum period for which any
person may in any class or classes of cases
662 INDIAN LAW REPORTS ALLAHABAD SERIES
be detained under any law providing for
preventive detention; and

(c) the procedure to be followed by an
Advisory Board in an inquiry under subclause (a) of clause (4)."

(emphasis supplied)

19. The text of Article 22 enshrines
certain procedural safeguards, many of
which are otherwise available in the CrPC.
In
elevating
these
safeguards
to
a
constitutional status, the framers imposed a
specific "limitation upon the authority both
of Parliament as well as [State] Legislature
[to]
not
abrogate"
rights
that
are
fundamental to India's constitution. Dr
Bakshi
Tek
Chand,
a
conscientious
dissenter
to
preventive
detention
in
peaceful
times,
proposed
a
further
safeguard in the provision of a right to
make representation to the detenu, which
was eventually accepted by the Constituent
Assembly as a reasonable compromise43
Therefore,
preventive
detention
in
independent India is to be exercised with
utmost regard to constitutional safeguards.

20. This history of the framing of
Article 22 is critical for the judiciary's
evaluation of a detenu's writ petition
alleging, inter alia, a denial of the timely
consideration of his representation.