# Parvez v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Habeas Corpus No. 412 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-v-state-of-u-p-ors-47172
- **Pages:** 13

## Headnote

A. National Security Act, 1980 - Section 3(2)
-
Preventive
Detention
-
Scope
of
interference - Public Order - Case of cutting
cow beef in pieces in the secrecy of his own
house - Slaughtering because of poverty or
lack of employment or hunger - No material
to assert repetition of activity in future -
Held, it can at best be described as a matter
affecting law and order and not public order
- An act of slaughtering a cow in the secrecy
of one's own house in the wee hours
probably because of poverty or lack of
employment or hunger, would perhaps only
involve a law and order issue and could not
be said to stand on the same footing as a
situation where a number of cattle have
been slaughtered outside in public view and
the public transport of their flesh or an
incident where aggressive attack is made by
the slaughterers against the complaining
public, which may involve infractions of
public order. (Para 31 and 40)

B. National Security Act, 1980 - Section
3(2) - Preventive Detention - Subjective
Satisfaction of Authority - Judicial Review
- Scope of interference - Held, in
detention
cases,
the
subjective
satisfaction is open to limited judicial
scrutiny - It would be wrong to contend
that there is complete embargo on the
powers of the Court to look at the
sufficiency
of
the
ground
from
any
perspective, although the probative value
of the material adduced for inferring
whether the detenue was engaged in a
particular activity, was a matter primarily
for the satisfaction of the detaining
authority,
and
the
Court
could
not
evaluate it as it would have evaluated
material on an appeal. (Para 34)

C. Constitution of India - Article 226 -
Writ - Sufficiency of evidence - Scope of
interference - Held, normally in exercise
of powers under Article 226 of the
Constitution of India, the High Court has
limitations in considering the sufficiency
of the evidence for ascertaining the
factual involvement of a detenue, but the
Court can certainly see whether the
activities complained of have resulted in
an infringement of public order or only
involve a law and order issue. (Para 36)
Writ petition allowed. (E-1)
Cases relied on :-

## Text

_Characters 0–39,921 of 44,169. This is a partial read: ask again with offset=39921 for what follows._

282 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner,
respondent
no.2.
The
learned
Commissioner
also
without
considering the grounds taken by the
petitioner in the appeal and without giving
opportunity of hearing dismissed the appeal
vide order dated 25.03.2019, thereafter, the
petitioner by means of the present writ
petition challenged both the orders before
this Court for quashing the same on the
ground that both the orders are bad in the
eye of law.

4. Per contra learned AGA has
submitted that the present writ petition has
now become infructuous due to reason that
at present no cause of action survives in the
present writ petition as the externment
order passed against the petitioner was only
for a period of one month and the appeal
against the said order has also been
dismissed, so in the present writ petition
nothing remain to be decided nor there is
any adverse order against the petitioner for
which he is aggrieved.

5. Learned counsel for the petitioner
in rejoinder argued that there is an
apprehension in the mind of the petitioner
that the respondent authorities may take
disadvantage of the impugned orders in
future against the petitioner.

6. I have considered the rival
submissions made by the parties and
perused the record.

7. From the perusal of the externment
order, it is not disputed that the same is
already expired and the appeal filed against
the said externment order before the
Commissioner, respondent no.2, under
section 6 of the Act is also dismissed and
after lapse of so many years, there is no
externment order against the petitioner nor
any fresh order exists in the present case,
which causes any harm to the petitioner. In
the present writ petition nothing remains to
be decide on merit, as no cause of action
survives in the present writ petition at
present nor there is any adverse order
against the petitioner, for which he is
prejudiced.

8. The apprehension of the petitioner
that the authorities may take disadvantage
of the impugned orders in future against
him is also not justified unless he is not
involved in any other criminal case. If he is
aggrieved by any other order passed by the
respondents
he
may
approach
the
competent court of law for redressal of his
grievances.

9. With the above observations, the
present writ petition is disposed of.

10. No order as to cost.
----------
(2021)08ILR A282
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2021

BEFORE

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

Habeas Corpus No. 412 of 2021
connected with
Habeas Corpus No. 414 of 2021
with
Habeas Corpus No. 416 of 2021

Parvez ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Narendra Gupta

Counsel for the Respondents:
8 All. Parvez Vs. State of U.P. & Ors.
283
Govt. Advocate

A. National Security Act, 1980 - Section 3(2)
-
Preventive
Detention
-
Scope
of
interference - Public Order - Case of cutting
cow beef in pieces in the secrecy of his own
house - Slaughtering because of poverty or
lack of employment or hunger - No material
to assert repetition of activity in future -
Held, it can at best be described as a matter
affecting law and order and not public order
- An act of slaughtering a cow in the secrecy
of one's own house in the wee hours
probably because of poverty or lack of
employment or hunger, would perhaps only
involve a law and order issue and could not
be said to stand on the same footing as a
situation where a number of cattle have
been slaughtered outside in public view and
the public transport of their flesh or an
incident where aggressive attack is made by
the slaughterers against the complaining
public, which may involve infractions of
public order. (Para 31 and 40)

B. National Security Act, 1980 - Section
3(2) - Preventive Detention - Subjective
Satisfaction of Authority - Judicial Review
- Scope of interference - Held, in
detention
cases,
the
subjective
satisfaction is open to limited judicial
scrutiny - It would be wrong to contend
that there is complete embargo on the
powers of the Court to look at the
sufficiency
of
the
ground
from
any
perspective, although the probative value
of the material adduced for inferring
whether the detenue was engaged in a
particular activity, was a matter primarily
for the satisfaction of the detaining
authority,
and
the
Court
could
not
evaluate it as it would have evaluated
material on an appeal. (Para 34)

C. Constitution of India - Article 226 -
Writ - Sufficiency of evidence - Scope of
interference - Held, normally in exercise
of powers under Article 226 of the
Constitution of India, the High Court has
limitations in considering the sufficiency
of the evidence for ascertaining the
factual involvement of a detenue, but the
Court can certainly see whether the
activities complained of have resulted in
an infringement of public order or only
involve a law and order issue. (Para 36)
Writ petition allowed. (E-1)
Cases relied on :-
1. Habeas Corpus Writ Petition No. 319 of 2019,
Mehboob Ali Vs U.O.I.. & 3 ors., decided on
31.05.2019
2. Ramveer Jatav Vs St.of U.P. & ors., (1986) 4
SCC 762
3. S.R. Bommai Vs U.O.I., AIR 1994 SC 1918
4. T. Devaki Vs Govt. of T.N. & ors., (1990) SCC
456
5. Ramesh Yadav Vs D.M. , Etah & ors., AIR
1986 SC 315
6. Sama Aruna Vs St. of Telangana & anr.,
(2018) 12 SCC 150

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

1. At the outset, Sri Narendra Gupta,
learned
Counsel
for
the
detenues/petitioners have submitted that
applications for amendment, bearing C.M.
Application No. 53220 of 2021 in re:
Habeas Corpus No. 412 of 2021, C.M.
Application No. 53294 of 2021 in re:
Habeas Corpus No. 414 (H/C) of 2021 and
C.M. Application No. 53175 of 2021 in re:
Habeas Corpus Petition No. 416 of 2021,
are pending.

2. On due considerations, we allow
aforesaid amendment applications and
permit the learned Counsel for the
petitioners to make necessary amendment
in the memo of the writ petition during the
course of the day.

3. Questioning the legality and
validity of the orders dated 14.08.2020
passed by the District Magistrate, Sitapur
284 INDIAN LAW REPORTS ALLAHABAD SERIES
(respondent no.3), directing detention of
Parvez, Irfan and Rahamtullah in exercise
of its power under Section 3 (2) of the
National Security Act, 1980 (hereinafter
referred to as the 'Act, 1980'), which was
subsequently confirmed by Uttar Pradesh
Advisory Board under Section 11 of the
Act, 1980 and on the basis of same, the
orders for confirmation dated 05.10.2020
and 06.11.2020 have been passed by the
Under Secretary, Home (Confidential)
Department, Government of Uttar Pradesh
(respondent
no.2),
petitioner/detenue
Parvez has preferred Habeas Corpus
Petition
No.
412
of
2021,
petitioner/detenue Irfan preferred Habeas
Corpus Petition No. 414 of 2021 and
petitioner/detenue Rahamtullah preferred
Habeas Corpus Petition No. 416 of 2021,
through his brother Imran.

4. In addition to the aforesaid, by means
of the amendment, the detenues/petitioners is
also seeking a writ of certiorari to quash the
order dated 10.02.2021 passed by the
respondent no.2-Under Secretary, Home
(Confidential) Department, Government of
Uttar Pradesh, by which the detention period
of the detenues/petitioners has been extended
for a period of nine months from the date of
detention i.e. 14.08.2020.

5. Since the above-captioned Habeas
Corpus petitions arise out of a common
factual matrix and law, we are disposing
them of by a common judgment.

6. Shorn off unnecessary details, the
facts giving rise to the controversy
involved in the above Habeas Corpus
petitions are as under :-

While
Incharge
Inspector
Ranvir
Singh
along
with
Sub-Inspector
Sri
Tribhuwan Kumar Yadav, S.I. Ramesh
Kumar Kannaujia, Head Constable Sanjay
Pratap, Head Constable Satya Prakash,
Constable Akhilesh Kumar, Constable
Harendra Kumar, Constable Shyam Singh,
Constable Dipak Shukla were on duty for
maintaining law and order in the area as
well as searching and checking the wanted
persons/vehicles within the area of the
police station Talgaon, district Sitapur on
12.07.2020 through Government Vehicle
(Tata Sumo), bearing registration no. U.P.
34 G 0660 and in private vehicle, bearing
registration no. U.P. 34 G 0505, and
reached Emalia Chauraha via village
Angrashi, an informer had told them that
two butchers of the Vishwan, after
slaughtering a cow elsewhere, have brought
beef in the house of Rahmatullah in village
Emalia and in the house, Rahmatullah and
his brother as well as two butchers of the
Vishwan have made small pieces of beef
for selling and if quickness be made, then,
they can be caught at home. On believing
the aforesaid information of the informer,
the police party raided the house of
Rahmatullah and found that five persons
were cutting the lump of the beef in small
pieces by banka and as soon as the police
party entered into the house, all persons
started running away. However, two
persons, namely, Irfan (petitioner of
Habeas Corpus No. 414 of 2021) and
Parvez (petitioner of Habeas Corpus No.
412 of 2021) were arrested on spot, who
disclosed
the
name
of
Rahamtullah
(petitioner of Habeas Corpus No. 416 of
2021) and two others, namely, Kurban and
Rafi. Thereafter, beef was kept in a white
bag and with the help of the aforesaid two
accused persons, one banka, a piece of
wood, one knife and one spear were seized
and for testing the recovered beef, it was
sent to Veterinary Doctor, Parsendi, who,
after verifying the same, reported that the
recovered beef was of cow.
8 All. Parvez Vs. State of U.P. & Ors.
285

7. For the aforesaid incident, a case,
bearing First Information Report No. 0235,
under Sections 3/5/8 of the U.P. Prevention
of Cow Slaughter Act, 1955 and Section 7
of the Criminal Law Amendment Act,
2013, was lodged against accused Parvez
and Irfan, Rahamtullah (detenue/petitioners
herein), Rafi and Kurban at Police Station
Talgaon,
District
Sitapur
and
detenue/petitioners Parvez and Irfan were
arrested on the same day of the incident i.e.
on 12.07.2020, whereas detenue/petitioner
Rahamtullah was arrested on 13.07.2020.
and were sent to jail. Later on, while the
detenue/petitioners
were
in
jail
in
connection with the aforesaid F.I.R.,
another F.I.R., bearing No. 0250 of 2020,
under Section 2 (kha)(17)/3 of the UP
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986 have been lodged
against the detenue/petitioners as well as
other co-accused persons, namely, Rafi,
Kurban, Mohd. Safiq and Jamil on the basis
of single criminal case.

8. While the detenues/petitioners were
in jail in connection with the aforesaid
criminal cases, the Station House Officer,
Police Station Talgaon, District Sitapur had
submitted a report dated 01.08.2020 that
due to cow slaughtering, a large number of
Hindu Community had gathered due to
which the public order was badly disturbed
and further on account of the act of the
detenues/petitioners and co-accused, the
sense of insecurity and terror had spread in
the whole area. It was also reported that the
fallout of the incident had culminated in the
chaos, disturbing congenial atmosphere,
flaring horrific
feeling, affecting the
maintenance of public order and anyhow
the peace was maintained even though the
situation was tense for a period of three
days in the village and surrounding
villages. Further, the bail application of the
detenue/petitioners were rejected by the
learned Magistrate-I, Sitapur vide orders
dated 22.07.2020, against which they had
moved an application before the District &
Sessions Judge, Sitapur on 24.07.2020,
wherein the hearing date was fixed for
14.08.2020. In these backgrounds, it was
reported that under Article 48 of the
Constitution of India, it is the duty of the
State Government to protect the cow and if
the petitioners would be enlarged on bail,
he would again indulge in criminal activity
of cow slaughtering which is prejudicial to
public order.

9. On receipt of the aforesaid report
dated 01.08.2020 of the Station House
Officer, Police Station Talgaon, District
Sitapur
(respondent
no.5),
the
Superintendent
of
Police,
Sitapur
(respondent no.4) had referred the matter to
the District Magistrate, Sitapur (respondent
no.3) for invoking the provisions of Act,
1980 while exercising the power under
Section 3 (2) of the Act, 1980. On receipt
of the aforesaid report of the respondent
nos.4 and 5, the District Magistrate, Sitapur
has invoked the provisions of Section 3 (2)
of the Act, 1980 and passed the impugned
order of detention dated 14.08.2020 against
the
deteneues/petitioners
and
also
forwarded the copies of the impugned
detention order dated 14.08.2020, the
grounds of detention as well as other
connected papers to the State Government
as per the provisions of Section 3 (4) of the
Act,
1980.
Thereafter,
the
State
Government has placed the matter before
the U.P. Advisory Board (Detention) under
Section 10 of the Act, 1980 and after
confirmation of the impugned order of
detention by the U.P. Advisory Board
(Detention) under Section 11 of the Act,
1980,
the
State
Government,
while
exercising the powers under Section 3 (3)
286 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Act, 1980, has also confirmed the
impugned
order
of
detention
dated
14.08.2020 vide order dated 05.10.2020 for
a period of three months. Thereafter, the
State
Government,
vide
order
dated
06.11.2020, extended the detention of the
detenues/petitioners for a period of six
months.

10. It has been stated by the
petitioners that during pendency of the
aforesaid process, the detenues/petitioners
were released on bail in F.I.R. No. 235 of
2020, under Sections 3/5/8 of the U.P.
Prevention of Cow Slaughter Act, 1955 and
Section 7 of the Criminal Law Amendment
Act, 2013 by the IV Additional District and
Sessions Judge/Special Judge (Essential
Commodities) Act, Sitapur vide order dated
27.08.2020 in Bail Application No. 997 of
2020.
Subsequently,
the
detenues/
petitioners were also enlarged on bail in
F.I.R. No. 250 of 2020, under Sections 2
(kha) 17/3 of the U.P. Gangsters and Anti
Social Activities (Prevention) Act, 1986 by
this Court vide order dated 11.11.2020 in
Criminal Misc. Case No. 8724 (B) of 2020.

11. It has also been stated by the
petitioners that they have preferred a
representation dated 24.08.2020 against the
impugned
order
of
detention
dated
14.08.2020 to the District Magistrate,
Sitapur through the Superintendent of Jail,
District Jail, Sitapur but neither the same
was rejected nor any order has been passed.

12. Feeling aggrieved by the aforesaid
action
of
the
respondents,
the
detenues/petitioners have filed the abovecaptioned habeas corpus petitions.

13. Heard Sri Narendra Gupta,
learned
Counsel
for
the
detenues/petitioners, Sri S.P. Singh, learned
Additional Government Advocate for the
State/respondents and perused the material
brought on record.

14.

Learned
Counsel
for
the
petitioners argued that it is an admitted fact
that co-accused Kurban and Rafi have
brought
the
beef
in
the
house
of
Rahamtullah,
which
shows
that
the
petitioners
have
no
role
in
cow
slaughtering. He argued that there was
absolutely no material before the detaining
authority, which could justify the belief the
detaining authority that the acts allegedly
committed by the detenues/petitioners were
in any way prejudicial to the public order.

15. Elaborating his submission,
learned counsel for the petitioner argued
that the impugned order of preventive
detention was passed by the respondent no.
3 against the detenues/petitioners while
they were in prison under judicial custody
on account of they being involved in F.I.R.
No. 235 of 2020, under Sections 3/5/8 of
the U.P. Prevention of Cow Slaughter Act,
1955 and Section 7 of the Criminal Law
Amendment Act, 2013. He further argued
that there was no material placed before the
detaining authority for recording his
satisfaction about the release of the
petitioners from the jail in near future. In
paragraph 06 of the grounds of detention, it
has been mentioned that the petitioners,
who were confined in District Jail, Sitapur,
was
making
continuous
efforts
for
obtaining bail and there was strong
possibility of the petitioners being released
on bail and upon being release on bail,
there was all likelihood of the petitioners
indulging in activities which would disturb
the public order. He argued that the bald
observation of the detaining authority that
there is likelihood of the petitioner being
released on bail and on his being released
8 All. Parvez Vs. State of U.P. & Ors.
287
on bail, he would again indulge in similar
activities disturbing the public peace and
order and keeping the petitioners in
captivity, is contrary from the facts and
circumtances of the case and also in
contravention
of
fundamental
rights
enshrined
under
Article
21
of
the
Constitution of India.

16. Lastly, learned Counsel for the
detenues/petitioners has pointed out that
during pendency of the aforesaid petitions,
the respondent no.2 has passed the order
dated 10.02.2021 by which the detention
period has been extended for a period of
nine month from the date of detention i.e.
14.08.2020.

17. To strengthen his submission,
learned Counsel for the petitioners has
drawn our attention towards a decision
rendered by a Co-ordinate Bench of this
Court at Allahabad in Habeas Corpus
Writ Petition No. 319 of 2019 : Mehboob
Ali Vs. Union of India and 3 others,
decided on 31.05.2019, dismissing the
habeas corpus writ petition and has argued
that against the judgment and order dated
31.05.2019, Mahboob Ali (detenue/ writ
petitioner)
approached
the
Hon'ble
Supreme Court by filing Special Leave to
Appeal (Crl.) No. 6921 of 2019, wherein
the Hon'ble Supreme Court, vide order
dated 30.08.2019, while issuing notice,
stayed the preventive detention order and
extension thereof. Hence, he prays that the
impugned order of detention as well as
consequential orders are liable to be
quashed.

18. A short counter has been filed by
Superintendent of Jail, District Jail, Sitapur,
wherein it is stated that the grounds of
detention along with all documents have
been furnished to the detenues on the date
of passing the impugned order of detention
i.e. 14.08.2020. Thereafter, information for
invocation of NSA against the detenues
have also been furnished by the detaining
authority to the Central Government, State
Government and other authorities through
Radiogram
dated
14.08.2020.
On
20.08.2020, the State Government had
approved the impugned order of detention
and the same was also served upon the
detenues on 20.08.2020 and an information
to this effect was also sent to the State
Government
on
21.08.2020.
The
representation submitted by the detenues
was forwarded on the same day vide letter
dated
24.08.2020
to
the
concerned
authority.
The
approval
order
dated
20.08.2020, which was passed by the State
Government, had been sent to by the
detaining authority along with letter dated
02.09.2020, was also served upon the
detenues on 02.09.2020 and information to
this effect was also served upon the
detaining
authority.
The
District
Magistrate, vide order dated 03.09.2020,
has rejected the representation of the
detenues/petitioners and same was also
communicated to the detenues/petitioners
on 03.09.2020.
Thereafter,
the
State
Government, vide order dated 14.09.2020,
rejected
the
representation
of
the
detenues/petitioenrs,
which
was
also
communicated through radiogram dated
14.09.2020. The rejection order dated
14.09.2020
was
received
by
the
Superintendent of Jail, District Jail, Sitapur
on 15.09.2020 and the same was served
upon the petitioner on 15.09.2020. On
22.09.2020, the detenues/petitioners were
produced before the Advisory Board on
22.09.2020 through Video Conferencing in
compliance of the order dated 18.09.2020
passed
by
the
State
Government.
Thereafter, on receipt of the report of the
Advisory Board, the State Government has
288 INDIAN LAW REPORTS ALLAHABAD SERIES
passed
the
impugned
order
dated
05.10.2020, whereby the detention under
NSA was confirmed tentatively for three
months, which was also served upon the
detenues/petitioners.
Vide
order dated
26.10.2020, the Central Government had
rejected
the
representation
dated
24.08.2020
submitted
by
the
petitioners/detenues and the same was also
communicated to the detenues/petitioners
on 26.10.2020. Thereafter, vide order dated
06.11.2020, the State Government has
extended the detention order for further six
months tentatively and the same was also
served upon the detenues/petitioners on
06.11.2020.

19. A counter affidavit has also been
filed
by
the
respondent
no.2/Under
Secretary, Home (Confidential), State of
U.P., reiterating the contents of the short
counter
affidavit
filed
by
Jail
Superintendent, District Jail, Sitapur. In the
counter affidavit filed on behalf of the
District Magistrate, Sitapur, it has been
contended that the petitioner and other coaccused had committed heinous crime and
annoyed the Hindu Community because
they were involved in slaughter of cow and
from them recovery of beef was made and
due to this reason, it had disturbed the
public order, which was brought under
control because the prompt action taken by
the district administration. It has also been
stated that when the accused Irfan and
Parvez was arrested, cow beef was
recovered from their possession and as the
news spread, the situation became tense,
communal harmony was disturbed and a
large police contingent was deployed in the
area from various Police Stations to control
the situation. In this way, the public order
was disturbed. It has also been stated that
the decision for invocation of National
Security
Act
against
the
detenues/petitioners and other co-accused
has been taken on the basis of the police
report and nature of crime committed by
them as they had disturbed the communal
harmony,
which
resulted
in
serious
disturbance of the law and order situation,
which was ultimately controlled after
deploying number of police force. Thus,
the act of the petitioner and other coaccused had adversely affected the public
order.

20. In the rejoinder affidavit, the
detenues/petitioners
have
refuted
the
contents made in the counter affidavit and
have stated that the impugned order of
detention and its extension have been
passed only on account of pendency of one
criminal case relating to Cow Slaughtering
Act. During the pendency of the aforesaid
criminal case, Gangster Act was also
slapped upon the detenues/petitioners. It
has also been stated that the extended
period of the detention order dated
10.02.2021 is illegal as the same has been
passed ignoring the fact that other coaccused, Rafi and Kurban against whom
the National Security Act was slapped and
against them number of criminal cases are
pending as has been reflected from the
ground of detention itself and have also
brought cow beef in the house of
detenues/petitioners, have been released on
21.01.2020 while the detenues /petitioners,
who neither brought the beef nor was
involved in slaughtering, his detention
period has been extended for further three
months. It has also been stated that the
detention period has been extended only on
the
ground
for
preventing
the
petitioners/detenues from releasing on bail
and there is no evidence that after releasing
on bail, the petitioners/detenues will
indulge in activities prejudicial to the
public order. It has also been stated that
8 All. Parvez Vs. State of U.P. & Ors.
289
before extension of period for detention by
the authorities concerned, the same was not
sent before the Advisory Board as has been
provided under para-21 of the General
Clauses Act, wherein it has been provided
that the decision can be amended or
changed by the same process as it was got
done earlier and the detention period has
been extended without following the due
process of law and without approval of the
Advisory Board, hence the extension
period of detention is itself illegal.

21.

We
have
examined
the
submissions advanced by the learned
Counsel for the parties and gone through
the pleadings on record.

22. It transpires from the record that
the impugned order of detention together
with the grounds of detention were served
on the detenues/petitioners on the same
day,
i.e.
on
14.08.2020
when
the
detenues/petitioners were confined in the
District Jail, Sitapur in connection with a
case registered as First Information Report
No. 0235 of 2020, under Sections 3/5/8 of
the U.P. Prevention of Cow Slaughter Act,
1955 and Section 7 of the Criminal Law
Amendment Act, 2013, against accused
Parvez
and
Irfan,
Rahamtullah
(detenue/petitioners
herein),
Rafi
and
Kurban at Police Station Talgaon, District
Sitapur.

23. It is pertinent to mention here that
after lodging the First Information Report
No. 0235 of 2020, under Section 3/5/8 of
the U.P. Prevention of Cow Slaughter Act,
1955 and Section 7 of the Criminal Law
Amendment Act, 2013, another F.I.R.,
bearing No. 0250 of 2020, under Section 2
(kha)(17)/3 of the UP Gangsters and AntiSocial Activities (Prevention) Act, 1986
have
been
lodged
against
the
detenues/petitioners as well as other coaccused persons on the basis of single
criminal case and, thereafter, impugned
detention order has been passed by the
detaining authority but from perusal of the
grounds of the detention reflects that the
filing of FIR No. 0250 of 2020 under
Sections 2(kha)(17)/3 of the U.P. Gangsters
and Anti-Social Activities (Prevention)
Act, 1986 has not been mentioned in the
grounds of detention. It appears that the
factum of lodging FIR No. 0250 of 2020
under Sections 2(kha)(17)/3 of the U.P.
Gangsters
and
Anti-Social
Activities
(Prevention)
Act,
1986
against
the
detenues/petitioners has not been brought
to the notice of the detaining authority by
the sponsoring authority i.e. Station House
Officer, Police Station Talgaon, District
Sitapur and Superintendent of Police,
Sitapur and the detaining authority has
passed the impugned order of detention
only on the basis of single case i.e. F.I.R.
No. 0235 of 2020.

24. The basic grounds for detaining
the detenues/petitioners were that on
receipt of information from the informer
that the detenues/petitioners Parvez, Irfan
and Rahmatullah along with two butchers
of village Biswan, namely, Rafi and
Kurban were cutting the beef for the
purposes to sell it, the Incharge Inspector
along with other police personnels of police
station
Talgaon,
district
Sitapur
visited/raided
the
house
of
the
detenues/petitioners at 5.30 A.M. and the
petitioners/detenues Parvez and Irfan were
arrested on the spot along with beaf and
weapons for cutting the beaf, however,
their associates Rahmatullah, Karim and
Rafi were fled away from the spot. The
recovered beef was examined by the
Veterinary Doctor, Parsendi and after
examining, it was verified that the
290 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered meat was of beef. Thereafter, the
aforesaid F.I.R. i.e. F.I.R. 0235 of 2020,
against the petitioners/detenues and coaccused Karim and Rafi were lodged at
Police Station Talgaon, District Sitapur. On
13.07.2020, petitioner/detenue Rahmatullah
and other two co-accused persons, namely,
Karim and Rafi were arrested and sent to
jail. When the aforesaid news spread in the
area,
villagers
of
Hindu
community
gathered
near
the
house
of
the
petitioners/detenues and all of them were
excited
and
communal
amity
was
disturbed. After great efforts, the police
succeeded in assuaging the general public
and taking steps for restoring public order.
It is further clarified in the grounds of
detention that as a result of the acts of the
petitioners/detenues and co-accused, the
sentiments of the Hindu community were
hurt and Hindu-Muslim harmony was
adversely affected and an atmosphere of
fear and terror was generated, public order
was disturbed and the crowd became
belligerent. As the relationship between the
two communities was adversely affected
and
disturbed
due
to
the
petitioners/detenues'
action,
hence
the
detention order was passed as aforesaid.

25. It also transpires from the ground
of detention that as a result of the act of the
detenues/petitioners, the normal course of
the general public was disturbed. On being
satisfied by the report of the Superintendent
of Police, Sitapur and Station House
Officer, Police Station Talgaon, District
Sitapur and further on being satisfied that
in order to maintain public order and that
there
was
a
likelihood
of
the
petitioners/detenues being released on bail,
the
detaining
authority
passed
the
impugned
order
detaining
the
petitioners/detenues under Section 3(2) of
the Act, 1980.

26. The main plank of the argument
of the learned counsel for the detenues is
that since the detenues were in custody of
the police authorities for a substantive
offence and during that period, another
F.I.R. No. 250 of 2020 was registered
under the Gangsters Act, therefore, there
was no need to direct their preventive
detention merely on the basis of a solitary
incident of cutting beef in pieces to sell it,
which was carried out in the secrecy of
their home and that when the said beef was
brought by co-accused, Rafi and Karim in
the house of the petitioners /detenues, it
could
not
be
inferred
that
the
detenues/petitioners on being released from
jail would repeat the activities that might be
prejudicial to maintenance of public order.
Further since the grounds of detention
mentioned
that
the
friends
of
petitioners/detenues had a bad reputation as
against them henious crimes have been
registered at police station Vishwan district
Sitapur,
therefore,
because
of
these
extraneous considerations where only a
solitary incident of cutting beef was only
involved, the impugned order of detention
was a mala fide exercise of jurisdiction. It
was further contended that the solitary
incident of cutting beef in pieces could not
have disturbed public order as there was no
material to show that any untoward
incident had taken place in the village. In
fact the report itself mentioned that the
public, which had gathered at the spot, was
disbursed after being pacified by the police.

27. On the other hand, learned
Additional Government Advocate urged
that only the subjective satisfaction of the
detaining authority that the action of the
detenues/petitioners could have disturbed
even the tempo of life was sufficient for
clamping an order of preventive detention
and the same could not be subject to
8 All. Parvez Vs. State of U.P. & Ors.
291
judicial review as the said order was
necessary for the protection of society and
a balance has to be struck between the
needs of the community and the liberty of a
citizen.
A
habeas
corpus
petition
challenging the preventive action by the
District Magistrate cannot proceed like an
appeal against the detention order and the
Court cannot look into the probative value
of the evidence available against the
petitioners/detenues, nor was the Court
empowered to substitute its opinion for the
subjective satisfaction of the authority. The
cutting of beef to sell it offends religious
faith and feelings of a section of the
society, which certainly disturbs public
tranquility, peace and communal harmony
and hence it is a clear cut case of breach of
public order which affected the even tempo
of society.

28. We have examined the writ
petition,
counter
affidavits,
rejoinder
affidavit and also considered the rival
submissions of the parties as well as
perused the impugned orders passed under
Sub-section (2) of Section (3) of the Act,
1980.

29. We note that the grounds of
detention clearly indicate that the incident
had taken place in the secrecy of the
petitioners/ detenues' house at 5.30 in the
morning. It was a solitary incident of
cutting cow beef in pieces away from the
public eye. There was no resistance when
the petitioners/detenues Parvez and Irfan
and the other co-accused were being
arrested by the police at that time. Further,
to the specific averment in the writ petition
that
the
petitioners/detenues
had
no
criminal history and there was no material
to indicate that the petitioners /detenues on
being released from jail, would again
indulge in the activity of cutting cow beef
in pieces to sell, there was no specific
denial in the counter affidavit of the
District
Magistrate,
which
simply
mentioned that on the basis of the solitary
incident the petitioners/detenues could be
preventively detained. Further in the
counter affidavit, it has been mentioned
that the nature of the activity of the
petitioners/detenues itself suggested that
the petitioners/detenues may have been
involved in slaughtering of a cow. It was
also mentioned that so far as the allegation
of discriminatory treatment against the
petitioners/detenues for being singled out
for detention under the National Security
Act was concerned, it was refuted by the
petitioners to the fact that the house
belonged to the petitioners, and the other
co-accused had brought the beef in the
house of the petitioners but they were
released from the charges levelled against
them.

30. In Ramveer Jatav Vs. State of
U.P. and others : (1986) 4 SCC 762, the
Apex Court has held that it is possible for
the detaining authority to assume that the
accused could repeat the action, but for
reaching that conclusion there must be
some material and circumstances on record,
to justify such a conclusion. Ramveer Jatav
(Supra) was a case of broad day-light
murder and it was observed by the Apex
Court that it was difficult to infer from a
solitary incident that such an act would
disturb public order or that if the petitioner
was not detained, he would be likely to
indulge in such an activity in future.

31. In the instant case, the case of the
petitioners/detenues, which are a case of
cutting cow beef in pieces in the secrecy of
his own house, can at best be described as a
matter affecting law and order and not
public order. Moreover, there was no
292 INDIAN LAW REPORTS ALLAHABAD SERIES
material for reaching the conclusion that
the petitioners/detenues would repeat the
activity in future.

32. The contention of the learned
Additional Government Advocate that this is a
matter for the subjective satisfaction of the
detaining authority and the Court has no
jurisdiction to adjudicate on the probative
value, and the propriety or sufficiency of the
ground of the ground of detention of the
detaining authority is immune from judicial
review is a proposition which cannot be
accepted when stated so broadly.

33. In the case of S.R. Bommai Vs.
Union of India : AIR 1994 SC 1918, the
Apex Court has held that even the
Presidential satisfaction under Article 356 of
the Constitution to impose emergency is not
completely immune from judicial challenge
although Presidential satisfaction and the
satisfaction of the Constitutional machinery is
capable of being objectively determined only
to a very limited extent. Therefore, in certain
cases specially where mala fide exercise of
power or action on extraneous consideration
was concerned, a limited power of judicial
review has been conferred even when the
President was exercising his powers under
Article 356 of the Constitution. But as
mentioned by Hon'ble K. Ramaswamy, J in
paragraph 150 of S.R. Bommai's case
(Supra), the satisfaction of the President
cannot be equated with the discretion
conferred upon an administrative agency
which can be tested on objective material to
some extent:

"The satisfaction of the President
cannot be equated with the discretion
conferred upon an administrative agency, of
his subjective satisfaction upon objective
material like in detention cases, administrative
action or by subordinate legislation."

34. Thus, it is crystal clear that in
detention cases, the subjective satisfaction
is open to limited judicial scrutiny.
Therefore, it would be wrong to contend
that there is complete embargo on the
powers of the Court to look at the
sufficiency of the ground from any
perspective, although the probative value of
the material adduced for inferring whether
the detenue was engaged in a particular
activity, was a matter primarily for the
satisfaction of the detaining authority, and
the Court could not evaluate it as it would
have evaluated material on an appeal.

35. In the present case, we find that
learned counsel for the petitioners has not
raised any question of fact and has not
disputed that no such incident has taken
place. His basic contention was that the
incident took place in the secrecy of the
home of the petitioners and it was not an
act, which was intended to cause a
conflagration or an act of confrontation
where number of cows may have been
slaughtered or assault made on persons,
who protested against the slaughtering.
Furthermore, there is no suggestion that
any witness has turned hostile and it has
not even been argued by the learned
counsel for the petitioners that either the
accused has been discharged, acquitted or
that the case would end in discharge or
acquittal or that there is want of evidence in
the case.

36. At this juncture, it would be apt to
mention that it cannot be denied that
normally in exercise of powers under
Article 226 of the Constitution of India,
this Court has limitations in considering the
sufficiency of the evidence for ascertaining
the factual involvement of a detenue, but
this Court can certainly see whether the
activities complained of have resulted in an
8 All. Parvez Vs. State of U.P. & Ors.
293
infringement of public order or only
involve a law and order issue.

37. The only submission that learned
petitioners' counsel has advanced is that on
the basis of a solitary incident, where there
was no material to infer that repetition was
likely, the order of detention was not
justified.

38. At the cost of repetition, it would
be relevant to mention here that the
petitioners and co-accused were mutely
arrested when they were found cutting a
beef in the wee hours of the morning in the
house of the petitioners. We also do not
know whether the cause was poverty, lack
of employment or hunger, which may have
compelled the petitioners and the other coaccused to take such a step. It is thus, a
matter of quality and degree whether the
act has been done in public gaze and in an
aggressive manner with scant regard to the
sentiments of the other community or
whether it has been done in a concealed
manner, which can resolve the question
whether the case is one involving public
order, or is only a matter affecting law and
order.

39. In the case of T. Devaki Vs.
Government of Tamil Nadu and others,
(1990) SCC 456, the Apex Court observed
that merely making averments in the
grounds of detention that as a result of an
offence in public and in broad day light
alarm, fear and a sense of insecurity was
generated in the minds of the public of the
area and thereby the detenue could be said
to have acted in a manner prejudicial to the
maintenance of public order which affected
the even tempo of life of the community,
was not sufficient. Repetition of these
words in the grounds are not sufficient to
inject the requisite degree of quality and
potentiality in the incident in question, but
there must be some substantive material to
indicate that public order has been
jeopardized.

40. In the present case, to the contrary
we find that on the arrival of the police in
the wee hour, the public had been pacified
and disbursed and that the beef and
weapons of cutting beefs i.e. banka, wood
and knife were recovered and sent to
Veterinary Doctor for test.