# Raies alias Yogendra Singh Yadav v. State of U.P. and others

- **Citation:** (2003) 1 ILRA 187
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-02-17
- **Case number:** Criminal Misc. Habeas Corpus Petition No. 44309 of 2002
- **Bench:** U.S. Tripathi, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raies-alias-yogendra-singh-yadav-v-state-of-u-p-and-others-39950
- **Pages:** 8

## Headnote

Sri Arvind Tripathi
A.G.A.
Sri B.N. Singh
S.C.
Sri R.K. Shukla

National Security Act- Section 3 (2)- the
detention order can be passed even if
the detenue is in jail, provided the
detaining authority has recorded his
satisfaction
that
there
was
every
possibility of his being released on bail
and that after release on bail, he would
indulge in similar activities prejudicial to
the maintenance of public order.

Held ( in Para 21)

In
the
instant
case,
the
detaining
authority has mentioned in the grounds
of
detention
that
at
present
the
petitioner was detained in district jail,
Jhansi in connection with case crime no.
193
of
2002
under
section
364A/395/412
IPC
and
10/12
Dacoity
Affected Area Act relating to P.S. Babina
and he and co-accused Bhaiyan @
Satyapal had moved application for their
bail in the Court of Special Judge
(Dacoity Affected Area), Jhansi and there
was real possibility of being him released
on bail.
Case law referred:
1989 (26) ACC 1 (SC)
1990 (2) SCC, 456
2002 (45) ACC, 998
1990 (27) ACC, 621 (SC)

## Text

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1All] Raies alias Yogendra Singh Yadav V. State of U.P. and others 187
rendered to the customer. It often happens
that a customer goes to a photographer's
shop, the photographer takes him into the
studio and takes his photographs. To this
extent service is rendered. Thereafter
when the photograph is handed over to
the customer there is transfer of goods.
When the photograph is sold to the
customer that is a transfer of the property
in goods and it is not merely rendering of
service as is the case in a barber's shop.

12. In the present case the
commissioner has directed levy of trade
tax only on the material/property which
has been transferred by the petitioners to
the customers.

13. Hence there is no merit in the
contention of the learned counsel for the
petitioner. The petition is dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.2.2003

BEFORE
THE HON'BLE U.S. TRIPATHI, J.
THE HON'BLE D.P. GUPTA, J.

Criminal Misc. Habeas Corpus Petition No.
44309 of 2002

Raies alias Yogendra Singh Yadav

 ...Petitioner
Versus
State of Uttar Pradesh and others

 ...Respondents

Counsel for the Petitioner:
Sri V.S. Singh

Counsel for the Respondents:
Sri Arvind Tripathi
A.G.A.
Sri B.N. Singh
S.C.
Sri R.K. Shukla

National Security Act- Section 3 (2)- the
detention order can be passed even if
the detenue is in jail, provided the
detaining authority has recorded his
satisfaction
that
there
was
every
possibility of his being released on bail
and that after release on bail, he would
indulge in similar activities prejudicial to
the maintenance of public order.

Held ( in Para 21)

In
the
instant
case,
the
detaining
authority has mentioned in the grounds
of
detention
that
at
present
the
petitioner was detained in district jail,
Jhansi in connection with case crime no.
193
of
2002
under
section
364A/395/412
IPC
and
10/12
Dacoity
Affected Area Act relating to P.S. Babina
and he and co-accused Bhaiyan @
Satyapal had moved application for their
bail in the Court of Special Judge
(Dacoity Affected Area), Jhansi and there
was real possibility of being him released
on bail.
Case law referred:
1989 (26) ACC 1 (SC)
1990 (2) SCC, 456
2002 (45) ACC, 998
1990 (27) ACC, 621 (SC)

(Delivered by Hon'ble U.S. Tripathi, J.)

1. The petitioner has filed this writ
petition challenging his detention order
dated
26.7.2002 passed
by
District
Magistrate, Jhansi, respondent no. 2,
under section 3 (2) of National Security
Act.

2. The grounds of detention served
on the petitioner alongwith detention
order
(Annexure
SA-1
to
the
supplementary affidavit) disclosed that on
the night of 4/5.6.2002 at about 12.30
a.m. 10-12 armed persons of Dhan Singh
gang with which the petitioner was
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188 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
associated came to the site of contractor
Jagdish Rai, Driver Sonu Cashier Sanjai
and Foreman Laxmi were sleeping. The
persons of the gang enquired from
Chaukidar Sitaram as to who were
residing there and slapped him. They also
looted cash of Rs.10,000/- by breaking
open the almirah, the money of the
workers and their clothes. They also
kidnapped Sanjai and Gopi Cashier and
worker respectively for purposes of
ransom. The persons of the gang also
removed air of the wheels of the jeep and
also took away its key saying that the
above persons would be released on
payment of Rs. 80 lac and in case report is
lodged, they would kill all of them.
Jagdish
Rai
lodged
report
of
the
occurrence on 5.6.2002 at 12.10 on the
basis of which a case at crime no. 193 of
2002
under
section
364
IPC
was
registered. The persons of the gang took
Gopi and Sanjai in the jungle of Orchcha
and kept the above kidnapees at different
places. The petitioner was visiting the
said gang for negotiating the release of
the kidnapees. Ultimately negotiation
with proprietor of G.S. company was
settled for Rs. 3 lacs. The petitioner and
co-accused Bhaiyan went in the jungle of
Orchcha on 17.6.2002 with ransom
money of Rs.2,10,000/- and negotiated
the release of kidnapees with Dhan Singh
gang.
On
getting
Rs.2,10,000/-
the
kidnpaees were released at about 8 p.m.
near railway station. Baruwa Sagar from
where they were taken on utility vehicle
of G.S. Company.

3. On account of kidnapping of the
workers of the G.S. Company in a dare
devil manner, the persons working in the
Company were terrorised and a sense of
fear and insecurity was created amongst
them. Due to fear of the petitioner and his
gang it could not be mentioned in the
report that a sum of Rs.80,00,000/- was
demanded as ransom for release of the
kindnappes. The police of P.S. Babina
confirmed the kidnapping by petitioner
and his associate gang.

4. On 25.6.2002 the police got
information that some persons of Dhan
Singh gang were present in the house of
Prem Singh situated at village Khirkan.
Believing on above information Sri Nihal
Singh, Station Officer P.S. Babina along
with police force reached village Khirkan
and surrounded the house of Prem Singh
Yadav. On search of the said house the
petitioner and his four associates namely
Papu @ Kishan Lal Dhimar, Kamlesh
Prakash Dimar and Bhaiyan @ Satya
Prakash Yadav were apprehended from
the said house at about 2.10 a.m. On his
personal search, the petitioner was found
in possession of Rs.30,000/- cash, his
associates Pappu @ Kishan Lal, Prakash
Dimar and Bnhaiyan also were found in
possession of Rs.5000/- each while
Kamlesh was found in possession of
Rs.10,000/-. The bundles of currency
notes recovered from the petitioner and
his associates were bearing stamp mark of
Messrs Gurmit Singh and Company (G.S.
Company) on both sides. The petitioner
and his associates also confessed their
guilt before the police.

5. On account of above incident and
subsequent negotiations by petitioner and
his associates, a sense of terror and
insecurity was again created in the public.
The persons started closing their house in
the evening and were feeling insecured
even in performing their daily routine.
The persons working in G.S. Company
started
leaving
their
job
and
the
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1All] Raies alias Yogendra Singh Yadav V. State of U.P. and others 189
construction of government canal was
adversely affected.

6. After rescue of the kidnapees and
recovery of ransom amount from the
possession
of
petitioner
and
his
associates, the case was altered under
Section 364-A, 395 and 412 IPC and
10/12 Dacoity Affected Area Act.

7. The petitioner was detained in jail
in connection with case crime no. 193 of
2002 and had moved bail application
before
the
Special
Judge,
Dacoity
Affected
Area.
There
was
every
possibility of his being released on bail
and after his release on bail, there was
also possibility that he would indulge in
similar
activities
prejudicial
to
the
maintenance of public order.

8. Heard Sri V.S. Singh, learned
counsel for the petitioner and Sri Arvind
Tripathi, learned A.G.A. for respondents
no. 1,2,and 3 and the Standing Counsel
for respondent no. 4 the Union of India.

9. The learned counsel for the
petitioner has challenged the detention
order on the following grounds:

1. The incident regarding which the
petitioner was detained related to only
law and order and had no effect on
public order.

2. That the petitioner was detained in the
jail at the time of passing of detention
order and there was no possibility that
he would be released on bail.

3. There
was
delay
in
deciding
representation of the petitioner.

10. On the first ground it was
contended by the learned counsel for the
petitioner that the incident of kidnapping
for ransom for which, the petitioner was
detained was a solitary incident and the
petitioner had no criminal history. He
further contended that the petitioner was
not even named in the F.I.R. and the
incident in question had no effect on
public order as it was purely law and
order problem. He further contended that
it is alleged that the petitioner was
negotiating the payment of ransom money
and release of kidnapees, but initially
Jagdish had named Bhaiyan @ Satya Pal
Yadav, as the negotiator and by making
interpolation in the case diary, the name
of petitioner was inserted in place of
Bhaiyam @ Satya Pal.

11. Word 'public order' and 'law and
order' have been explained by the Apex
Court in the case of Smt. Angoori Devi
for Ram Ratan v. Union of India and
others, 1989 (26) ACC 1 (SC) as below :-

12. 'The impact on 'public order' and
'law and order' depends upon the nature of
the act, the place where it is committed
and motive force behind it. If the act is
confined to an individual without directly
or indirectly affecting the tempo of the
life of the community, it may be a matter
of law and order only. But where the
gravity of the act is otherwise and likely
to endanger the public tranquility, it may
fall within the orbit of the public order.
This is precisely the distinguishing feature
between the two concepts. Sometimes, as
observed by Venkatachaliah, J. in Ayya
alias Ayub v. State of U.P.,' what might
be an otherwise simple 'law and order'
situation might assume the gravity and
mischief of a ' public order' problem by
reason
alone
of
the
manner
or
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190 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
circumstances in which or the place at
which it is carried out.' Necessarily, much
depends upon the nature of the act, the
place where it is committed and the
sinister significance attached to it. '

13. The Apex Court in the case of T.
Devaki vs. Government of Tamil Nadu
and others (1990) 2 SCC 456 as below :-

'Any disorderly behaviour of a
person in the public or commission of a
criminal offence is bound to some extent
affect the peace prevailing in the locality
and it may also affect law and order but
the same need not affect maintenance of
public order. There is basic difference
between law and order and public order.
The question whether a man has only
committed a breach of law and order or
has acted in a manner likely to cause
disturbance of the public order, is a
question of degree and extent of the reach
of the act upon the society. A solitary
assault on one individual can hardly be
said to disturb public peace or place
public order in jeopardy so much as to
bring the case within the purview of the
Act providing for preventive detention.
Such a solitary incident can only raise a
law and order problem and no more.'

Testing the incident in the light of
above observations it would reveal that no
doubt the petitioner was not named in the
F.I.R. that 10-12 miscreants armed with
guns, out of which two were covering
their faces committed looting by tying the
persons present on the site with the
Charpai and kidnapped Sanjai and Gopi,
Cashier and worker respectively of the
company. However, in his statement
under Section 161 Cr.P.C. Jagdish Rai
told that the miscreants while kidnapping
the two persons had also told that they
would be released only after payment of
Rs. 80 lac as ransom. It is also mentioned
in the grounds of detention that during
investigation it was revealed that the
petitioner and his other associates were
negotiating with the proprietor of G.S.
Company for release of the above persons
and the matter was settled for Rs. 3 lac.
That on 17.6.2002 the petitioner along
with his associate Bhaiyan came in the
jungle of Orchcha and settled with Dhan
Singh gang the release of the above
persons on payment of Rs.2,10,000/- and
that the above persons were released on
payment of above money. It is also
revealed from the grounds of detention
that the petitioner was arrested by the
police on 25.6.2002 at 2.20 a.m. along
with his associates from the house of
Prem Singh Yadav at village Khirkan and
on his personal search he was found in
possession of Rs.30,000/- which was the
ransom
money
of
his
share.
The
participation of the petitioner in the
kidnapping and realisation of ransom
money thus came into light during
investigation and not naming of the
petitioner did not show that the incident
had no effect on public order.

14. The incident of kidnapping,
detaining the kidnapees in jungle of
Orchcha at various places and their
release after payment of Rs. 3 lac by the
negotiation of petitioner came to the
knowledge of workers of G.S. company
and persons of the locality and taking into
consideration the entire incident from
kidnapping to release of kidnapees, it was
a incident, which affected public order. A
sense of terror and insecurity was created
in the workers of G.S. Company and
public at large was feeling insecure.
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1All] Raies alias Yogendra Singh Yadav V. State of U.P. and others 191
15. Even if, it is assumed that the
petitioner was not recognized by the
workers of G.S. Company at the time of
kidnapping, but the action of petitioner
was known to the kidnapees, when he
started negotiating for their release and
realization of ransom money from the
proprietor of G.S. Company.

16. Learned counsel for the
petitioner placed reliance on decision of
this Court in Yuvraj Singh vs. State of UP
and others, 2002 (45) ACC, 998. In the
said case on 29.11.2001 at 3.45 p.m. the
petitioner and three others riding on two
motor cycles opened fire on Satyendra
Singh when he along with two other
persons was traveling in Santro Car. The
above incident had taken place 200 yards
away from the brick kiln of Nepal Singh
on the road. From perusal of F.I.R. it was
born out that the back ground of the
incident was the personal enmity of Vikas
with the deceased and the petitioner was
said to be associated with the said crime
by doing a criminal conspiracy. Held that
the murder which took place over the
enmity between the two sides did not
make out a case of public order. The facts
of the present case are totally different.
The incident was not confined only to
kidnapping, but also release only on
payment of ransom money amounting to
Rs. 3 lac. There was no enmity between
the petitioner or his associates and the
kidnapees or the proprietor of G.S.
Company. The incident in question was
for purposes of realisation of ransom
money. The nature of incident was such
that it had affected public at large as any
one could be kidnapped for purposes of
ransom.

17. The learned counsel for the
petitioner further contended that Jagdish
had told before the I.O. that it was coaccused Bhaiyan, who was negotiating for
release and came to jungle of Orchcha in
that
connection.
But
the
name
of
petitioner was subsequently inserted by
scoring out the name of Bhaiyan and this
fact was also noticed by the Trial Court
while granting the bail. For this purpose,
the original case diary of the case was
summoned. On perusal of the case diary,
we found that Gopi and Sanjai, of G.S.
Company,
the
kidnapees,
were
interrogated by the I.O. on 18.6.2002 and
both of them had disclosed in their
interrogation that petitioner Rais Yadav
used to come for negotiation of their
release. However, Jagdish Rai was
interrogated by I.O. on 25.6.2002 and he
had previously told that Bhaiyan was
involved in the negotiation of release and
kidnapees
and
subsequently
some
interpolation was made and name of
petitioner 'Rais ' was inserted. Assuming
that there was some interpolation in the
statement of Jagdish Rai interrogated on
25.6.2002 the two kidnapees namely
Sanjai and Gopi had already disclosed the
name of petitioner, as the negotiator of
their release.

18. Therefore, the incident in
question and subsequent incident of
negotiation and release of two kidnpaees
for ransom of Rs. Three lac affected
public order and incident cannot be said
to be confined only with law and order
problem.

19. The next point raised by the
learned counsel for the petitioner was that
at the time of passing of the detention
order, the petitioner was detained in jail
and there was no material for the
detaining
authority
to
record
his
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192 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
satisfaction that he would be released on
bail.

20. It is settled law that the detention
order can be passé even if the detenu is in
jail, provided the detaining authority has
recorded his satisfaction that there was
every possibility of his being released on
bail and that after release on bail, he
would
indulge
in
similar
activities
prejudicial to the maintenance of public
order. The Apex Court held in the case of
Kamrunnisa and another vs. Union of
India and others, 1990 (27) ACC, 621
(SC) that in case a person is in custody a
detention order can validly be passed (1)
if the authority passing the order is aware
of the fact that he is actually in custody,
(2) if he has reason to believe on the basis
of reliable material placed before him (a)
that there is a real possibility of his being
released on bail, and (b) that on being so
released he would in all probability
indulge in prejudicial activity, and (3) if it
is felt essential to detain him to prevent
him from so doing. If the authority passes
an order after recording his satisfaction in
this behalf, such an order cannot be struck
down on the ground that the proper course
for the authorities was to oppose the bail
and if bail is granted notwithstanding such
opposition, to question it before a higher
court.

21. In the instant case, the detaining
authority has mentioned in the grounds of
detention that at present the petitioner was
detained
in
district
jail,
Jhansi
in
connection with case crime no. 193 of
2002 under section 364-A/395/412 IPC
and 10/12 Dacoity Affected Area Act
relating to P.S. Babina and he and coaccused Bhaiyan @ Satyapal had moved
application for their bail in the Court of
Special Judge (Dacoity Affected Area),
Jhansi and there was real possibility of
being him released on bail.

22. That there was also possibility
that after release on bail, he would
indulge in similar activities prejudicial to
the maintenance of public order.

23. No doubt in para 18 of the
petition it was mentioned that the
detention order was passed by the District
Magistrate on non application of mind, as
the petitioner was in custody and the
Chief
Judicial
Magistrate
was
not
competent to grant bail to the petitioner,
so there was no likelihood for the
petitioner to be released on bail. It is also
mentioned in paragraph 24 of the said
petition that at that time when the
detention order was passed, no bail
application of the petitioner was pending,
to create apprehension in the mind of
detaining authority to prevent his liberty ,
so there was no occasion for detaining
authority to pass detention order.

24. In paragraph 4 of the counter
affidavit of Sri Shyam Mohan Srivastava,
District Magistrate, Jhansi, detaining
authority,
had
deposed
that
bail
application was moved on behalf of the
petitioner, which was pending when the
order was passed against him and the
copy of bail application has also been
supplied to the petitioner alongwith
grounds of detention. That he has
considered activities of the petitioner and
was satisfied that though the petitioner
was in jail, but he was trying for his
release and his release was a real
possibility. That he was also satisfied on
the basis of relevant and cogent material
that in case the order is not passed against
the petitioner under National Security
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1All] Raies alias Yogendra Singh Yadav V. State of U.P. and others 193
Act, he would repeat the similar activities
in future after getting the bail.

25. The above assertion in the
petition indicated that according to
petitioner he had moved bail application
before the C.J.M. who had no jurisdiction
to grant bail and that no bail application
was moved prior to passing of detention
order before the competent court. As
mentioned above, the above averments
were emphatically denied by the detaining
authority. The original record of the case
of the petitioner was also summoned and
a perusal of it shows that the petitioner
moved his bail application on 27.6.2002
before
the
Special
Judge,
Dacoity
Affected Area, Jhansi. Copy of the bail
application was received by Government
Counsel on 28.6.2002 while detention
order was passed much after it i.e. on
26.7.2002. The copy of above bail
application was also supplied to the
petitioner along with grounds of detention
. Thus, there were sufficient material for
recording his satisfaction by the detaining
authority that there was possibility of
being the petitioner released on bail.

26. The detaining authority has also
deposed in his counter affidavit that he
considered the activities of the petitioner
and was satisfied that after release on bail,
the petitioner would indulge in similar
activities prejudicial to the maintenance
of public order. Perusal of original record
further shows that there were sufficient
material before the detaining authority
which showed that the petitioner was
active member of gang of Dhan Singh and
was indulged in kidnapping and illegally
detaining the kidnapped persons for
ransom and earning money through his
above criminal activities. It is also clear
from the statement of the witnesses of
case crime no. 193 of 2002 that the
petitioner was negotiating for ransom
money with the proprietor of the company
the workers of which were kidnapped.
Thus there were sufficient materials for
the detaining authority to satisfy that after
release on bail, the petitioner would again
indulge in similar activities (kidnapping
for
ransom)
prejudicial
to
the
maintenance of public order.

27. The next and last contention of
the learned counsel for the petitioner was
that the representation of the petitioner
was decided with delay, which rendered
his continued detention invalid.

28. The counter-affidavit of Sri
Rajendra Prasad, Jailor, District Jail,
Jhansi
discloses
that
the
petitioner
submitted his representation to the Jail
Authorities on 5.8.2002 and on the same
day it was sent to the District Magistrate,
Jhansi for further action. The counter
affidavit of Sri Shyam Mohan Srivastava,
District Magistrate, Jhansi shows that
representation of the petitioner was
received in his office on 5.8.2002 and he
considered the said representation and
rejected the same on 6.8.2002. That on the
same day he sent the representation of the
petitioner to the State Government and
Central
Government
through
special
messenger. The State Government has
rejected the said representation and sent
message dated 16.8.2002. The counter
affidavit of Sri C.P. Singh on behalf of the
State
of
U.P.
discloses
that
the
representation of the petitioner dated
5.8.2002 along with parawise comments
there on forwarded by the District
Magistrate, Jhansi, vide his letter dated
6.8.2002 was received in the concerned
Section
on
7.8.2002.
The
State
Government sent copy of representation
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194 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
to the Central Government through letter
dated 8.8.2002. The State Government
examined the representation on 9.8.2002.
The Special Secretary examined it on
12.8.2002. Secretary examined it on
12.8.2002 and submitted to the higher
authorities and after due consideration the
said representation was finally rejected by
the State Government on 12.8.2002. The
counter affidavit of Sri Ramesh Kumar on
behalf of the Union of India shows that
the representation of the petitioner dated
5.8.2002 alongwith parawise comments of
the detaining authority was received by
the Central Government on 7.8.2002. The
representation was immediately processed
for
consideration
and
the
District
Magistrate asked to send parawise report
through Crash wireless message dated
9.8.2002. The report was received on
12.8.2002.
The
representation
was
processed for consideration and was put
up before the Director Ministry of Home
on 13.8.2002 and he along forwarded to
the Union Home Minister on 4.8.2002.
The Union Home Minster considered and
rejected the same on 14..8.2002.

29. In this way the authorities
concerned had decided the representation
without any delay and there is explanation
for each day. As the District Magistrate,
detaining
authority
decided
the
representation of the petitioner on next
day, State Government decided it on
12.8.2002 and the Central Government on
14.8.2002. Thus, there is no delay.

30. In view of our above discussions
and observations on the points raised by
the learned counsel for the petitioner we
find that there is no force in the petition
and the same is liable to be dismissed.

31. The petition is hereby dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MARCH 7, 2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition (Tax) No. 287 of
1998

Hotel Taj Ganges, and another

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Mool Behari Saxena

Counsel for the Respondents:
S.C.

U.P. Entertainment and Betting Tax Act
1979 as Amended by U.P. Act No. 15 of
2001-
Section
3
(7)-
Leavy
of
entertainment tax- Hotel providing
facilities to its customers by providing
telephone and Television set in each
room with facilities of cable channel -
whether is the owner of the Hotel liable
to pay separate cable operation charges
held- No- the management not charging
separate fee, nor it is necessary that
every consumer regularly watching the
television.

Held- Para 12 and 14

We
may
now
examine
the
above
provisions which we have quoted. The
word 'entertainment' means exhibition,
performance, etc. to which persons are
admitted
for
payment.
Hence
the
definition of entertainment itself means
that to be entertainment under the Act
persons
have
to
be
admitted
for
payment. As stated in the petition, the
cable or video service to the petitioner
hotel's room is not made for any