# Rakesh Singh v. U.O.I. & Ors

- **Citation:** (2021) 2 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Habeas Corpus Writ Petition No. 317 of 2020
- **Bench:** Pritinker Diwaker, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-singh-v-u-o-i-ors-46743
- **Pages:** 11

## Headnote

A. Constitution of India ,1950-Article 226
&
National
Security
Act,1980-Section
3(2)-challenge to -validity of detention
order
passed
by
District
Magistrategrounds of detention is not communicated
to the detenu while communicated to the
petitioner-petitioner were prejudicial to
the maintenance of public order and had
disturbed the normalcy of the societythere was enmity between the parties
over the defeat of election of Chairman,
Nagar panchayat-they opened fire to the
deceased-there
were
seven
criminal
history of the petitioner-at the time of
incident all shopkeepers located nearby
shut their shops immediately-people were
in fear and felt unsafe, they closed their
doors since this was the murder of present
Chairman-the atmosphere remained panic
for
few
days-Hence,the
apprehension
entertained by the detaining authority is
genuine and well founded-no illegality
found in the impugned orders.(Para 1 to
22)

The petition is dismissed. (E-5)

List of Cases cited:-

## Text

34 INDIAN LAW REPORTS ALLAHABAD SERIES
jurisdiction and may direct the parties to
approach the appropriate court.

39. In the facts of the present case, the
respondent no.4 alongwith her minor son
who was an infant of about four months (at
that relevant point of time i.e. in October,
2016), is stated to have left her matrimonial
home and since then the minor is said to be
in the custody of his mother.

40. The two parents are admittedly
living separately since the time that the
respondent no.4 is stated to have left her
matrimonial
home,
and
matrimonial
disputes are pending between the parties, in
the form of an application filed by the
petitioner no.2 seeking restitution of
conjugal rights under Section 9 of the
HMA and the respondent no.4 (wife)
seeking a divorce by filing a petition under
Section 13 of the HMA.

41. Admittedly, the relief sought in
the present writ petition is restricted to a
claim for visitation rights.

42. The petitioner no.1, who is
presently less than five years of age, is
stated to be exclusively in the care and
custody of his mother, ever since he was an
infant of four months of age.

43. In terms of the provisions under
Section 6(a) of the HMGA, the custody of a
minor who has not completed the age of
five years is to be ordinarily with the
mother, and in view thereof the custody of
the petitioner no.1 (minor son) with the
respondent no.4 (mother) prima facie
cannot be said to be illegal.

44. A writ of habeas corpus, as has
been consistently held, though a writ of
right is not to be issued as a matter of
course, particularly when the writ is sought
against a parent for the custody of a child.

45. Insofar as a claim with regard to
visitation rights is concerned, it is always
open to the parties concerned to avail the
remedy
by
moving
an
appropriate
application before the Family Court where
proceedings with regard to the matrimonial
disputes between the parties are stated to be
pending.

46. It is made clear that the
observations made, herein above, are prima
facie in nature and the same are without
prejudice to the rights and contentions of
the parties, which may be agitated in the
proceedings before the court below.

47. Having regard to the aforesaid,
this Court is not inclined to exercise its
extraordinary prerogative jurisdiction for
issuance of a writ of habeas corpus, in the
facts of the case.

48.

The
writ
petition
stands
accordingly dismissed.
----------

(2021)02ILR A34
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Habeas Corpus Writ Petition No. 317 of 2020

Rakesh Singh ...Petitioner
Versus
U.O.I. & Ors. ...Respondents
2 All. Rakesh Singh vs. U.O.I. & Ors.
35
Counsel for the Petitioner:
Sri Vinay Kumar Singh, Sri Mohd. Raghib
Ali, Sri Saghir Ahmad(Senior Advocate)

Counsel for the Respondents:
A.S.G.I., G.A., Sri Surendra Nath Chauhan

A. Constitution of India ,1950-Article 226
&
National
Security
Act,1980-Section
3(2)-challenge to -validity of detention
order
passed
by
District
Magistrategrounds of detention is not communicated
to the detenu while communicated to the
petitioner-petitioner were prejudicial to
the maintenance of public order and had
disturbed the normalcy of the societythere was enmity between the parties
over the defeat of election of Chairman,
Nagar panchayat-they opened fire to the
deceased-there
were
seven
criminal
history of the petitioner-at the time of
incident all shopkeepers located nearby
shut their shops immediately-people were
in fear and felt unsafe, they closed their
doors since this was the murder of present
Chairman-the atmosphere remained panic
for
few
days-Hence,the
apprehension
entertained by the detaining authority is
genuine and well founded-no illegality
found in the impugned orders.(Para 1 to
22)

The petition is dismissed. (E-5)

List of Cases cited:-

1. Ashok Kumar Vs Delhi Administration, (1982)
AIR SC 1143

2. Victoria Fernandes Vs Lalmal Sawma, (1992)
AIR SC 687

3. St. of U.P & anr. Vs Sanjay Pratap Gupta @
Pappu & ors. (2004) 8 SCC 591

4. Kuso Sah Vs St. of Bih. (1974) 1 SCC 185

5. Harpreet Kaur Vs St. of Mah.(1992) 2 SC 177

6. T.K Gopal @ Gopi Vs St. of Karn. (2000) 6
SCC 168

7. St. of Mah. Vs Mohd. Yakub (1980) 2 SC 1158

8. Mustakmiya Jabbarmiya Shaikh Vs. M.M
Mehta , (1995) 3 SCC 237

9. Amanulla Khan Kudeatalla Khan Pathan Vs.
St. of Guj., (1999) 5 SCC 613

10. Hasan Khan Ibne Haider Khan Vs R.H.
Mendonca, (2000) 3 SCC 511.

11. Smt Bimla Rani Vs U.O.I. (1989) 26 ACC 589
SC

12. Alijan Mian Vs DM, Dhanbad,(1983) 3 SCR
930 AIR 1983 SC 1130

13. Attorney General of India Vs Amratlal
Prajivandas ,(1994) AIR SC 2179

14. Kamarunnissa & ors. Vs. UOI (1991) 1 SCC
128

15. Champion R. Sangma Vs St. of Meghalaya
(2015) 16 SCC 253

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Heard Sri Saghir Ahmad, learned
Senior Advocate assisted by Sri Vinay
Kumar Singh, learned counsel for the
petitioner, Ms. Kumari Meena, learned
A.G.A. for the State-respondents and Sri
Surendra Nath Chauhan, for Union of
India.

2. By this writ petition under Article
226 of the Constitution of India petitioner
Rakesh Singh prays for issuance of a writ,
order or direction in the nature of Habeas
Corpus
challenging
the
validity
and
constitutionality of the impugned detention
order dated 15.01.2020 passed by District
Magistrate, Sonebhadra/respondent no.3
(hereinafter referred to as ' the detaining
authority') under sub section (2) of Section
3 of National Security Act, 1980 (for short
36 INDIAN LAW REPORTS ALLAHABAD SERIES
the
'NSA')
on
being
satisfied
that
petitioner's detention was necessary with a
view to prevent him from acting in any
manner prejudicial to the maintenance of
public order as well as confirmation order
dated 23.01.2020 passed by the Under
Secretary
Home
(Confidential)
Department,
Government
of
U.P.,
Lucknow/respondent no.2. Petitioner has
also prayed for a direction to the
respondents to set him at liberty and to
award cost to him.

3. The order of detention alongwith
the grounds of detention was served upon
the petitioner on 15.01.2020. Against the
said
order,
the
petitioner
made
a
representation dated 24.01.2020 to the
Detaining
Authority,
the
Secretary,
Department
of
Home
and
another
representation to the Advisory Board
constituted under Section 9 of the N.S.A.
The case of the petitioner alongwith his
representation was placed before the
Advisory Board who opined that there was
sufficient cause for the detention of the
petitioner. Accordingly, in exercise of
powers conferred under Section 12 (1) of
the NSA, the State Government confirmed
the aforesaid order of detention and
directed that the petitioner be detained for a
period of three months from the date of
detention vide order dated 24.02.2020
which was communicated to the petitioner
on 29.02.2020.

4. According to the grounds of
detention the activities of the petitioner
were prejudicial to the maintenance of
public order and had disturbed the
normalcy of the society. An F.I.R. was
lodged against him on 01.10.2019 at 5:30
O'clock as Crime No.180/2019 under
Sections 147, 148, 149, 302, 506 & 120B
I.P.C. at Police Station Pipri, District
Sonebhadra. While petitioner was in jail in
that case, the in-charge of Police Station
Pipri sent a report to Superintendent of
Police,
Sonebhadra
alleging
that
on
30.09.2019 at about 10:00 P.M. Chairman
Renukoot, Shiv Pratap Singh aged about 38
years R/o Hanuman Singh Katra Renukoot
was present in his residential office. Ajit
Kushwaha, Dilip Pareeda and Rinku were
also there. Younger brother of Shiv Pratap
Singh @ Dablu Singh was sitting out of
office. While Shiv Pratap Singh was
hearing the problems of public, all of a
sudden two boys on motorcycles arrived at
opposite side of the road and getting their
motorcycles stood there, came towards the
office. One of the boy was standing out of
office and other boy entered into the room.
He bade namaste to Chairman Shiv Pratap
Singh. He could not heed towards the boy
on account of talk on phone. That boy
opened fire upon him which pierced on the
left side chest of Shiv Pratap Singh.
Meanwhile, other boy also opened fire
which stroke at the door. People present
there tried to catch them but failed and
culprits having reached at the divider on the
road, fired in the air and fled away. Shiv
Pratap Singh was brought to the Hospital at
Hindalco from where he was referred to
Trauma Center, Varanasi. On 01.10.2019 at
about 2:30 A.M. he succumbed to injuries.

5. During investigation, it came into
light that Anil Singh brother of petitioner
was
Ex-Chairman
of
Renukoot
and
deceased Shiv Pratap Singh was present
Chairman. There was enmity because
brother of petitioner was defeated in
election of Chairman, Nagar Panchayat.
Shiv Pratap Singh and members of his
family caused injuries to the brother of
petitioner and Jamuna Singh with danda,
knife and sword in which Jamuna Singh
and one Rohit Singh got injured. Jamuna
2 All. Rakesh Singh vs. U.O.I. & Ors.
37
Singh said to take revenge instead of
lodging F.I.R., but uncle of Jamuna Singh
namely Santosh Singh lodged F.I.R. at
Police Station Pipri as Crime No.12/2019,
under Sections 147, 148, 149, 506, 307 & 7
Criminal
Law
Amendment
Act.
Meanwhile, there was altercation between
petitioner's brother & Vijay Pratap Singh,
brother of the deceased. As a result,
petitioner engaged himself in conspiracy to
murder Shiv Pratap Singh through Rakesh
Prasad Maurya. Brajesh Singh brother of
petitioner continued to talk to Jamuna
Singh who was told to arrange shooters. On
whose instance Bhagwan Singh arranged
and sent Gandhi Yadav, Lav Singh,
Sudhanshu Singh, Ravi Singh, Anda,
Manish and other 12 people to Renukoot.
They were stayed at Hotel Glory on
07.09.2019
by
Brajesh,
brother
of
petitioner on the I.D. of his driver Ramjaan.
Brajesh Singh and shooters were seen
together in C.C.T.V. Rakesh Singh was in
contact with Jamuna Singh & Anil Singh
during this period. The shooters lived in
Hotel
Glory
from
07.09.2019
to
09.09.2019. Meanwhile, deceased Shiv
Pratap Singh was got identified by the
shooters. Again on 28.09.2019, shooters
were called through phone by Jamuna
Singh on the instance of Brajesh Singh and
Anil Singh, brothers of petitioner. On
29.09.2019
shooters
were
stayed
in
Jwalamukhi Guest House. Brajesh Singh
also provided Rs.25,000/- for purchasing
motorcycle to Gandhi Yadav. In this way,
on 30.09.2019 the incident was got caused
by the petitioner as a result of long hatched
conspiracy with other accused persons and
after the commission of incident, vehicle
Scorpio, Bearing No. UP 67 F 4444 owned
by Anil Singh brother of petitioner and
driven by Ramjaan was deployed to escort
the shooters. Investigating Officer recorded
statements of witnesses and collected other
evidence
in
which
involvement
of
petitioner was found established and on
02.10.2019 he was arrested by police.
There is criminal history of the petitioner
i.e. ten criminal cases are registered at
Police Station and all are pending before
the Court after charge-sheet. This incident
took place at 10:00 P.M. in the mid of
Renukoot market. All shop-keepers located
nearby shut their shops immediately.
People were in fear and they closed their
doors since this was a murder of Chairman
so people were affected adversely and felt
unsafe. The atmosphere remained panic for
few days. Even students did not attend their
schools due to fear. Public order was totally
disturbed. Extra Forces and P.A.C. were
also deployed to bring the situation under
control. On 20.12.2019, he applied for bail
before the Court which created possibility
of petitioner being released on bail and
again to indulge himself in such activities
those were likely to affect adversely public
order, therefore, his detention became
necessary under the N.S.A.

6.

In
the
aforementioned
circumstances, Station House Officer, Pipri
sent a report with relevant papers to
Superintendent of Police, Sonebhadra for
detaining the petitioner under Section 3(2)
of N.S.A. Thereupon, Superintendent of
Police, Sonebhadra, after considering the
matter became satisfied with the report sent
by Station House Officer and submitted his
report to District Magistrate, Sonebhadra
for detaining the petitioner under Section
3(2) of N.S.A. to prevent him from
indulging
in
such
activities
causing
disturbance of public order.

7. On the basis of material placed
before him, as briefly referred to above,
Detaining Authority came to the conclusion
that petitioner's activities are prejudicial to
38 INDIAN LAW REPORTS ALLAHABAD SERIES
the maintenance of public order and his
activities have disturbed the normalcy of
the society. Thus, keeping in view his
criminal
record
and
activities,
the
Detaining Authority felt satisfied that there
was
every
apprehension/imminent
possibility that just after his release from
jail he will again indulge in such type of
activities which will adversely affect the
maintenance of public order and, therefore,
to prevent him from committing similar
activities prejudicial to the maintenance of
public order it became necessary to detain
him with immediate effect under Section
3(2) of the N.S.A. Hence, the Detaining
Authority passed impugned order dated
15.01.2020 for detaining the petitioner
under Section 3(2) of the N.S.A. The
Detaining Authority communicated the
grounds of detention to petitioner on
15.01.2020. On 24.01.2020, petitioner has
sent
his
representation
through
Jail
Superintendent, Sonebhadra to Detaining
Authority
which
was
rejected
on
24.01.2020 by the Detaining Authority and
other representation was sent to State,
which was also rejected on 31.01.2020.

8. We have also gone through the record
including counter-affidavits of respondents and
rejoinder affidavits of petitioner. The petitioner
has challenged the impugned order on
following grounds :-

(I) Because since 03.10.2019, the
petitioner is languishing in jail in connection
with F.I.R. No.180/2019 dated 01.10.2019
whereas he is quite innocent and has committed
no offence at all.

(II) Because since 15.01.2020, the
petitioner has been detained in pursuance to the
detention order and in as much as also detention
extension order dated 11.04.2020 for a period
of 6 months w.e.f 15.01.2020 to 13.07.2020 in a
District Jail, Sonebhadra at Robertsganj.

(III) Because, in any manner there is
no prejudice to the security of the state or from
acting in any manner prejudicial of the
maintaining of the public order, if the petitioner
wouldn't be detained so as such there is no
necessity to make an order directing to the
petitioner to detain him into jail.

(IV) Because, there is no credible
information or cogent reason apparent on
record to believe that either the petitioner would
be released from jail or he would act prejudicial
to the maintenance to the security of the State or
to maintenance of the public order.

(V) Because, there is only bald
statement and stale ground. It is further
submitted that mere ipse dixit of the detaining
authority is not sufficient to pass the detention
order.

(VI) Because, the petitioner has
neither taken law and order in his own hand nor
disturbed the public tranquility. It is further
submitted, the alleged so called apprehension is
the creation of the mind of the sponsoring
recommending/authorities.

(VII) Because, the intent of the
legislation to enact the National Security Act is
preventive not punitive. But the respondent no.3
by misusing his power has passed the detention
order, in order to punish the petitioner.

(VIII) Because, the continuous
detention of the petitioner is against the intent of
the Section 3(2), (4), (5) and 8 to 12 of the Act
and in as much as also contrary to the Article
22(5) readwith Article 21 and 14 of the
Constitution of India.

(IX) Because, in this case the
constitutional safeguard embodied in the Article
22(5) of the Constitution of India has not been
followed.

(X)
Because,
either
in
the
detention order dated 15.01.2020 and
approval order dated 23.01.2020 the period
of detention has not been disclosed.

(XI) Because, the detention order
dated 15.01.2020 and in as much as also
2 All. Rakesh Singh vs. U.O.I. & Ors.
39
detention extension order dated 11.04.2020
are illegal and unconstitutional and without
application of independent mind, hence not
sustainable and the petitioner deserves to
be set at liberty forthwith from the District
Jail, Sonebhadra at Robertsganj, in the
interest of justice, so the justice may be
done.

9. The respondents have filed counteraffidavits wherein they have denied the
points
raised
by
the
petitioner
and
reiterated their claim that the activities of
the petitioner were prejudicial to the
maintenance of public order, his activities
have disturbed the normalcy of the society
and then there was every possibility that
just after his release from jail, he will again
indulge in such activities which will
adversely affect the public orders and
therefore, to prevent him from further
committing
similar
criminal
activities
prejudicial to the maintenance of public
order, the impugned orders were justified.

10. It is strenuously urged by learned
counsel for the petitioner that the impugned
orders are wholly arbitrary and the
petitioner has been illegally detained by
misusing the provisions of the N.S.A. on
the basis of unfounded apprehension that if
the detenue was released on bail, he would
again carry on criminal activities in the
area. Except the alleged criminal cases,
there was no criminal record of the
petitioner and petitioner did not indulge in
any such activity which may form the basis
for satisfaction of the Detaining Authority
to come to a conclusion that he is likely to
disturb the public order. At the best, it
could be a matter of law and order and not
disturbance of public order. The reliance on
the alleged criminal case is misplaced. In
nutshell, the case of the petitioner is that
there was absolutely no cogent material
before the Detaining Authority to form the
requisite belief that the petitioner was
indulging in criminal activities which were
prejudicial to the maintenance of public
order and unless prevented, he would
indulge in similar activities in future.
Learned counsel for the petitioner also
contended
that
even
if
the
allegation/instances relied upon by the
Detaining Authority are taken a face value,
still at best, these may tantamount "to law
and order" and by no stretch of imagination
can be construed as activities prejudicial to
the maintenance of public order within the
meaning of sub section (2) of Section 3 of
N.S.A. It is alleged that the detention order
against the petitioner has been passed only
with a view to frustrate the bail. It is urged
that instead of clamping the impugned
order on the petitioner, the best course open
to the respondents was to oppose the bail
application. It is urged that the detention
order as well as it's confirmation order are
mala fide inasmuch as they were made
merely to circumvent the petitioner's
enlargement on bail. It is also urged by the
learned counsel that the grounds of order of
detention and further extension thereof
were not communicated to him, which
caused prejudice to the petitioner. In this
way, the impugned order becomes arbitrary
and suffers from illegality and material
irregularity, therefore, the same are liable
to be interfered with and quashed by this
Hon'ble Court.

11. Per contra, learned counsel for the
State, while supporting the order of
detention and denying the allegation that it
has been passed only with a view to
frustrate the bail order, has submitted that
the activities of the petitioner were directed
against the public at large and were
sufficient to bring them within the ambit of
public order. The satisfaction of the
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Detaining Authority is based on reliable
and relevant material and that there was no
illegality in the impugned orders. It is
urged that if the Detaining Authority
arrives at the subjective satisfaction that the
activities of the detenue are prejudicial to
the maintenance of public order and passes
the detention order, that cannot
be
interfered by this Hon'ble Court. The
grounds
of detention
were
promptly
communicated to the petitioner within the
stipulated time and there is no need of
supplying the grounds of extension of such
detention order to the detenue. In addition
to this, there is a long criminal history of
the petitioner.

12. Thus, the main question for
consideration before this Court is whether
the activities of the petitioner highlighted in
the grounds of detention fall within realm
of public order or law and order.

13. The distinction between the two
concepts of "public order" and "law and
order" has been lucidly explained by the
Apex Court in Ashok Kumar Vs. Delhi
Administration, AIR 1982 SC 1143. Inter
alia, observing that the true distinction
between the areas of "public order" and
"law and order", being fine and sometimes
overlapping, does not lie in the nature or
quality of the act but in the degree and
extent of its reach upon society, their
Lordships said that the act by itself is not
determinant of its own gravity. It is the
potentiality of the act to disturb the even
tempo of the life of the community which
makes it "prejudicial to the maintenance of
public order". If the contravention in its
effect is confined only to a few individuals
directly involved, as distinct from a wide
spectrum of public, it would raise the
problem of "law and order" only. It is the
length, magnitude and intensity of the
terror wave unleashed by a particular act or
violence
creating
disorder
that
distinguishes it as an act affecting "public
order" from that concerning "law and
order". On the facts of that case the Court
held that whenever there is an armed hold
up by gangsters in a residential area of the
city and persons are deprived of their
belongings at the point of knife or revolver
they become victims of organised crime
and such acts when enumerated in the
grounds of detention, clearly show that the
activities of a detenu cover a wide field
falling within the ambit of the concept of
"public order".

14. To the same effect are the
observations of the Apex Court in Victoria
Fernandes Vs. Lalmal Sawma, AIR 1992
SC 687, wherein, relying on its earlier
decisions, including Ashok Kumar's case
(supra), it was reiterated that while the
expression "law and order" is wider in
scope, in as much as contravention of law
always affects order, "public order" has a
narrower ambit and public order would be
affected by only such contravention which
affects the community and public at large.

15. The distinction between violation
of 'law and order' and an act that would
constitute disturbing the maintenance of
'public
order'
had
also
fallen
for
consideration of the Hon'ble Supreme
Court in State of U.P. & Anr. V. Sanjay
Pratap Gupta @ Pappu and others
reported in 2004 (8) SCC 591, where the
Apex Court after an extensive survey of
authority on the issue brought out the
distinction in fine detail thus :-

"12. The true distinction between
the areas of law and order and public order
lies not merely in the nature or quality of
the act, but in the degree and extent of its
2 All. Rakesh Singh vs. U.O.I. & Ors.
41
reach upon society. Acts similar in nature,
but committed in different contexts and
circumstances,
might
cause
different
reactions. In one case it might affect
specific individuals only, and therefore
touches the problem of law and order only,
while in another it might affect public
order. The act by itself, therefore, is not
determinant of its own gravity. In its
quality it may not differ from other similar
acts, but in its potentiality, that is, in its
impact on society, it may be very different.

13. The two concepts have welldefined contours, it being well established
that stray and unorganized crimes of theft
and assault are not matters of public order
since they do not tend to affect the even
flow of public life. Infractions of law are
bound in some measure to lead to disorder
but every infraction of law does not
necessarily result in public disorder. Law
and order represents the largest scale within
which is the next circle representing public
order and the smallest circle represents the
security
of
State.
"Law
and order"
comprehends disorders of less gravity than
those affecting "public order" just as
"public order" comprehends disorders of
less gravity than those affecting "security
of State". (See Kuso Sah v. State of Bihar
1974 1 SCC 185, Harpreet Kaur v. State
of Maharashtra 1992 2 SCC 177, T.K
Gopal Alias Gopi v. State Of Karnataka
2000
6
SCC
168
and
State
of
Maharashtra v. Mohd. Yakub 1980 2 SC
1158).

14. The stand that a single act
cannot be considered sufficient for holding
that public order was affected is clearly
without substance. It is not the number of
acts that matters. What has to be seen is the
effect of the act on the even tempo of life,
the extent of its reach upon society and its
impact."

16. The issue has also been dealt with
in the case of Sant Singh vs. District
Magistrate, Varanasi reported in 2000 Cri
LJ 2230 wherein paragraph 7 of the report
dealing with the point it was held thus:-

"7. The two connotations 'law
and order' and 'public 'order' are not the
words of magic but of reality which
embrace
within
its
ambit
different
situations, motives and impact of the
particular criminal acts. As a matter of
fact, in a long series of cases, these two
expressions have come to be interpreted by
the apex Court. It is not necessary to refer
all those cases all over again in every
decision for one simple reason that they
have been quoted and discussed in earlier
decision of this Court dated 14-10-1999 in
Habeas Corpus Writ Petition No. 33888 of
1999- Udaiveer Singh v. State of U.P. and
the decision dated 1-12-1999 in Habeas
Corpus Writ Petition No. 38159 of 1999
Rajiv Vashistha v. State of U.P. (Reported
in 1999 All Cri R 2777). The gamut of all
the above decisions in short is that the true
distinction between the areas of 'public
order' and 'law and order' lies not in nature
and quality of the act, but in the degree and
extent of its reach upon society. Sometimes
the distinction between the two concepts of
law and order' and 'public order' is so fine
that it overlaps. Acts similar in nature but
committed
in
different
contexts
and
circumstances
might
cause
different
reactions. In one case it might affect
specific individuals only and therefore,
touch the problem of 'law and order', while
in another it might affect 'public order'. The
act by itself, therefore, is not determination
of its own gravity. It is the potentiality of
the act to disturb the even tempo of the
community which makes it prejudicial to
the maintenance of 'public order''.
42 INDIAN LAW REPORTS ALLAHABAD SERIES

17. The scope of expression "acting in
any manner prejudicial to the maintenance
of public order" as appearing in SubSection 2 of Section 3 of the NSA also
came up for consideration of the Supreme
Court
in
Mustakmiya
Jabbarmiya
Shaikh Vs. M.M. Mehta, (1995) 3 SCC
237; Amanulla Khan Kudeatalla Khan
Pathan Vs. State of Gujarat, (1999) 5
SCC 613 and Hasan Khan Ibne Haider
Khan Vs. R.H. Mendonca, (2000) 3 SCC
511. The Apex Court held that the fallout,
the extent and reach of the alleged activities
must be of such a nature that they travel
beyond the capacity of the ordinary law to
deal with the person concerned or to
prevent his subversive activities affecting
the community at large or a large section of
the society. It is the degree of disturbance
and its impact upon the even tempo of life
of the society or the people of a locality
which determines whether the disturbance
caused by such activities amounts only to a
breach of "law and order" or it amounts to a
breach of "public order". In Amnulla
Khan's case (supra), it has been held that
the activities involving extortion, giving
threat to public and assaulting businessmen
near their place of work were sufficient to
affect the even tempo of life of the society
and in turn amounting to the disturbance of
the "public order" and not mere disturbance
of "law and order".

18. Dealing with the question as to
whether one solitary instance can be the
basis of an order of detention, the Apex
Court in Smt. Bimla Rani v. Union of
India, 1989 (26) ACC 589 SC observed
that the question is whether the incident
had prejudicially affected the 'public order'.
In other words, whether it affected the even
tempo of the life of the community. In
Alijan Mian v. District Magistrate
Dhanbad, 1983 (3) SCR 930 AIR 1983
SC 1130 it was held that even one incident
may be sufficient to satisfy the detaining
authority in this regard, depending upon the
nature of the incident. Similar view has
been expressed in the host of other
decisions. The question was answered more
appropriately and with all clarity in the case
of Attorney General of India v. Amratlal
Prajivandas, AIR 1994 SC 2179, wherein
the apex Court ruled that it is beyond
dispute that the order of detention can be
passed on the basis of a single act. The test
is whether the act is such that it gives rise
to an inference that the person would
continue to indulge in similar prejudical
activities. It cannot be said as a principle
that one single act cannot be constituted the
basis for detention. Thus, the argument of
learned counsel for the petitioner that since
it is solitary incident of the petitioner, he
deserves sympathy, is rejected. Now the
law, as it stands, is that even one solitary
incident may give rise to the disturbance of
'public order'. It is not the multiplicity but
the fall out of various criminal acts.
Though there is consistency in the various
decisions of the apex Court about the
interpretation of the expressions of 'law and
order' and 'public order' undue insistence on
the case law is not going to pay any
dividend as each case revolves round its
own peculiar facts and has to be viewed in
the light of the various attending factors. It
is difficult to find a case on all fours with
the case in hand.

19. In the instant case, examining the
grounds of detention, briefly referred to
above, on the touchstone of the legal
position
as
emerging
from
the
aforementioned decisions, we are of the
view that the activities relied upon by the
Detaining Authority to come to the
aforementioned conclusion, cannot be said
to be mere disturbance of "law and order".
2 All. Rakesh Singh vs. U.O.I. & Ors.
43
As noted in the grounds of detention, the
activities of the petitioner pertains to
engage into conspiracy to get a person
assassinated who being elected by the
people as Chairman of Nagar Panchayat
and so creating a menace in the society at
large. There is material on record to show
that petitioner, being brother of exChairman of Nagar Panchayat, engaged
into conspiracy to get the elected Chairman
murdered through hired shooters which
created panic in the public affecting the
normal tempo of life. Shops in the market
remained closed. Students also not attended
their schools for several days. Ordinary life
in the city was paralysed. It will certainly
result in disturbance of public order. To
assassinate
an
elected
person,
while
discharging his duties in his office, strikes
at the root of the State's authority and is
directly connected to 'public order'. This act
of petitioner was not directed against a
single individual, but against the public at
large having the effect of disturbing even
tempo of life of the community and thus,
breaching the "public order". Thus, we are
unable to hold that there was no material
before the Detaining Authority to come to
the conclusion, it did, to say that the
activities of petitioner can be construed as
activities prejudicial to the maintenance of
"public order," within the meaning of SubSection (2) of Section 3 of the NSA. We
have, therefore, no hesitation in holding
that the instances of petitioner's activities,
enumerated in the grounds of detention,
clearly show that his activities cover a wide
field and fall within the contours of the
concept of "public order"and the Detaining
Authority was justified in law in passing
the impugned order of detention as its
confirmation order against the petitioner.

20. As regards the plea of learned
counsel for the petitioner that the
impugned order is vitiated because it has
been passed with a mala fide intention to
frustrate the bail likely to be allowed to
the petitioner, we are of the view that
there is no substance in the contention.
No doubt, when the proceedings of
clamping
provisions
of
NSA
were
initiated, the petitioner was in jail but it is
settled by a catena of decisions of the
Apex Court that even when a person is in
custody, a detention order can validly be
passed if the authority passing the order
is aware of the fact of his being in
custody and he has reason to believe, on
the basis of material placed before him,
that there is imminent possibility of his
being released on bail and that on being
so released, he would in all probability
indulge in prejudicial activities and to
prevent him from doing so, it is necessary
to detain him. A detention order cannot
be struck down on the ground that the
proper course for the authority was to
oppose the bail application and if bail is
granted notwithstanding such opposition,
to question it before a higher Court, as is
sought and pleaded by learned counsel
for the petitioner. In this regard, criteria
was laid down by the Hon'ble Apex Court
in the case of Kamarunnissa and others
vs. Union of India (1991) 1 SCC 128
also fortified in Champion R. Sangma
vs. State of Meghalaya (2015) 16 SCC
253, it was held :-

"13. In case of a person 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 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
44 INDIAN LAW REPORTS ALLAHABAD SERIES
and (3) if it is felt essential to detain him to
prevent him from so doing."

21. So far as the argument relating to
non supply of grounds of order of detention
and further extension thereof is concerned, it
is noteworthy to mention that the grounds of
detention
were
communicated
to
the
petitioner at the time of passing the impugned
detention order dated 15.01.2020. It was
further extended by the State which was
communicated to the petitioner in due time.
There was no such requirement to furnish
grounds of extension to the detenue because
the grounds of detention were the same, so no
any prejudice was likely to be caused to the
petitioner.

22. Having considered the matter in the
light of the facts and circumstances, noted
above, we are of the opinion that the
apprehension entertained by the Detaining
Authority, to the effect that petitioner's
activities are prejudicial to the maintenance
of public order, is genuine and well founded.
Thus, we do not find any illegality in the
impugned
orders,
warranting
our
interference. The writ petition, being bereft of
any merit, is dismissed accordingly. There
will, however, be no order as to costs.
----------
(2021)02ILR A44
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE PRITINKER DIWAKER , J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Habeas Corpus Writ Petition No. 329 of 2020

Anil Singh ...Petitioner(In Jail)
Versus
U.O.I. & Ors. ...Respondents
Counsel for the Petitioner:
Sri Vinay Kumar Singh, Sri Mohd. Raghib
Ali, Sri Saghir Ahmad(Senior Adv.)

Counsel for the Respondents:
A.S.G.I., G.A., Sri Santosh Kr. Singh Paliwal

A. Constitution of India ,1950-Article 226
&
National
Security
Act,1980-Section
3(2)-challenge to -validity of detention
order
passed
by
District
Magistrategrounds of detention is not communicated
to the detenu while communicated to the
petitioner-petitioner were prejudicial to
the maintenance of public order and had
disturbed the normalcy of the societythere was enmity between the parties
over the defeat of election of Chairman,
Nagar panchayat-they opened fire to the
deceased-there
were
seven
criminal
history of the petitioner-at the time of
incident all shopkeepers located nearby
shut their shops immediately-people were
in fear and felt unsafe, they closed their
doors since this was the murder of present
Chairman-the atmosphere remained panic
for
few
days-Hence,the
apprehension
entertained by the detaining authority is
genuine and well founded-no illegality
found in the impugned orders.(Para 1 to
22)

The petition is dismissed. (E-5)

List of Cases cited:

1. Ashok Kumar Vs Delhi Administration, (1982)
AIR SC 1143

2. Victoria Fernandes Vs Lalmal Sawma, (1992)
AIR SC 687

3. St. of U.P. & anr. Vs Sanjay Pratap Gupta
@ Pappu & ors. (2004) 8 SCC 591

4. Kuso Sah Vs St. of Bih. (1974) 1 SCC 185

5. Harpreet Kaur Vs St. of Mah.(1992) 2 SC
177

6. T.K Gopal @ Gopi Vs St. of Karn. (2000) 6
SCC 168