# Rangesh Yadav v. Superintendent of District Jail, Azamgarh & Ors

- **Citation:** (2023) 5 ILRA 647
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-03
- **Case number:** Habeas Corpus No. 810 of 2022
- **Bench:** Rahul Chaturvedi, Gajendra Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rangesh-yadav-v-superintendent-of-district-jail-azamgarh-ors-50262
- **Pages:** 25

## Headnote

648 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A., A.S.G.I., Sri Patanjali Mishra, Sri
Satyendra Tiwari, Sri Kameshwar Singh

Criminal Law - National Security Act, 1980
- Section 3(2) - U.P.Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 - Constitution of India,1950 -
Articles 22(5) - Against detention order
dated
25.07.22
-
Representation
-
Rejected - Allegation against petitioner
was that certain people purchased liquor
from the license shop of petitioner which
was adulterated, consumed by seven
people, became blind and died - Already in
jail since 23.02.22 - Held, act allegedly
committed by petitioner on 20.02.22 did
not cause a disturbance of public order, as
it did not disturb the society to the extent
of causing a general disturbance of public
tranquility
-
Single
act
of
sale
of
adulterated country made liquor was not
suggestive of a repetitive tendency on the
part of petitioner to act likewise in future
- Directions accordinglyImpugned order
quashed. . (Para 39)

Writ Petition Allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,831 of 85,444. This is a partial read: ask again with offset=39831 for what follows._

5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
647
courts have made such an observation is to
ensure that preventive detention is not used
as an added tool to curtail judicial
decisions allowing bail of a person. The
Hon'ble Supreme Court in Vijay Narain
Singh v. State of Bihar (1984) 3 SCC 14
observed the following:

"It is not intended for the purpose
of keeping a man under detention when
under ordinary criminal law it may not be
possible to resist the issue of orders of bail,
unless the material available is such as
would satisfy the requirements of the legal
provisions authorising such detention.
When a person is enlarged on bail by a
competent criminal court, great caution
should be exercised in scrutinising the
validity of an order of preventive detention
which is based on the very same charge
which is to be tried by the criminal court."

40. The preventive detention laws in
India are a colonial legacy and have a
great potential to be abused and misused.
Laws that have the ability to confer
arbitrary powers to the state, must in all
circumstances,
be
very
critically
examined, and must be used only in the
rarest of care cases. In cases of
preventive detention, where the detenue is
held in arrest not for a crime he has
committed, but for a potential crime he
may commit, the courts must always give
every benefit of doubt in favour of the
detenue, and even the slightest of errors
in procedural compliances must result in
favour of the detenue.

41. After having gone through the
aforementioned judgments of Hon'ble
Apex Court and having considered the
contentions raised by learned counsel for
the
respective
parties,
we
have
no
hesitation to say that the impugned
detention order dated 4.3.2022 and the
grounds are de hors the provisions of law,
and therefore, the impugned detention
order dated 4.3.2022 and the grounds dated
04.03.2022 on which the detention order
was passed, are hereby set aside and
consequently the petitioner is set at liberty
forthwith, if he is not wanted in any other
case.

42. The instant Habeas Corpus Writ
Petition stands ALLOWED. All the
concerned parties shall be given a copy of
this order as per rules.

43. We make it clear that the
observations made in this order are only for
the purpose of deciding the instant habeas
corpus and shall not affect the trials
pending against the petitioner before the
court concerned. Trial courts are directed to
proceed and decide the case on its own
merits, unaffected by any observation made
in this order.
----------
(2023) 5 ILRA 647
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE GAJENDRA KUMAR, J.

Habeas Corpus No. 810 of 2022

Rangesh Yadav ...Petitioner
Versus
Superintendent of District Jail, Azamgarh
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Chandrakesh Mishra, Sri Abhishek
Kumar Mishra, Sri Daya Shankar Mishra
(Sr. Advocate)

Counsel for the Respondents:
648 INDIAN LAW REPORTS ALLAHABAD SERIES
G.A., A.S.G.I., Sri Patanjali Mishra, Sri
Satyendra Tiwari, Sri Kameshwar Singh

Criminal Law - National Security Act, 1980
- Section 3(2) - U.P.Gangsters and AntiSocial Activities (Prevention) Act, 1986 -
Section 2/3 - Constitution of India,1950 -
Articles 22(5) - Against detention order
dated
25.07.22
-
Representation
-
Rejected - Allegation against petitioner
was that certain people purchased liquor
from the license shop of petitioner which
was adulterated, consumed by seven
people, became blind and died - Already in
jail since 23.02.22 - Held, act allegedly
committed by petitioner on 20.02.22 did
not cause a disturbance of public order, as
it did not disturb the society to the extent
of causing a general disturbance of public
tranquility
-
Single
act
of
sale
of
adulterated country made liquor was not
suggestive of a repetitive tendency on the
part of petitioner to act likewise in future
- Directions accordinglyImpugned order
quashed. . (Para 39)

Writ Petition Allowed. (E-13)

List of Cases cited:

1. Ichhu Devi Choraria Vs U.O.I.& ors., 1980 AIR
1983

2. Mohinuddin @ Moin Master Vs District
Magistrate, Beed & ors., 1987 AIR 1977

3. St. of U.P. Vs Kamal Kishore Saini, 1988 AIR
208

4. M. Ahamedkutty Vs U.O.I., 1990 SCR (1)
209

5. Inamul Haq Engineer Vs Superintendent,
Division/District Jail, Azamgarh, 2001 Cri.L.J.
4398

6. Lallan Goswami Ajayn Vs Superintendent,
Central, 2002 (45) ACC 1089

7. Brijbasi Pathak Vs St. of U.P.& ors., 1985
(suppl.) ACC 273

8. Mrs. T. Devaki Vs Government of T.N. & ors.,
1990 AIR 1086

9. Smt. Angoori Devi for Ram Ratan Vs U.O.I.&
ors., 1989 AIR 371

10. Ram Manohar Lohia Vs St. of Bihar & anr.,
AIR 1966 SC 740

11. Sant Singh Vs District Magistrate & ors.,
2000 CriLJ 2230

12. Ram Kripal Singh Vs St. of U.P. & ors., 1986
CriLJ 1437

13. Jitendra Nath Biswas Vs The St. Of W.B.AIR
1975 SC 1215

14. Banka Sneha Sheela Vs The St. of Telangana
& ors., (2021) 9 SCC 415

15. SK. Serajul Vs St. of W.B.l, AIR 1975
Supreme Court 1517

16. Jagan Nath Biswas Vs The St. of W.B, AIR
1975 Supreme Court 1516

17. Md. Sahabuddin Vs The District Magistrate
24 Parganas & ors., 1975 CRI. L.J. 1499

18. Rajammal Vs St. of T. N. & anr. AIR 1999 SC
684

19. Kundanbhai Dulabhai Shaikh Vs Distt.
Magistrate, Ahmedabad And Ors

20. Raj Kishore Prasad Vs St. of Bihar And Ors.
AIR 1983 SC 320

21.
Rama
Dhondu
Barode
Vs
Saraf,
Commissioner of Police & Ors.

22. Syed Mehtab Vs Supdt. Central Jail, Naini,
Aftab Ahmad Vs District Magistrate, Gonda &
ors. 2002 (45) ACC 422

23. Bhanu Sharan Vs Superintendent, Central
Jail, Naini, Allahabad & ors. 2002 (45) ACC 599

24. Vishal @ Panda Vs District Magistrate,
Mainpuri & ors. 2004 (50) ACC 928
5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
649
25.
Virendra
Kumar
Nayak
Vs
The
Superintendent of Naini

26. Smt. Khatoon Begum Etc. Vs U.O.I.and Ors.
1981 AIR 12077, 1981 SCR (3) 137

27. Vijay Kumar Vs St. of J & K & ors.1982 AIR
1023, 1982 SCR (3) 522

28. Sk. Abdul Munnaf Vs St. of W.B. 1974 0
Supreme (SC) 118

29. Rabindra Kumar Ghosel Vs St. of W.B. 1975
0 Supreme (SC) 12

30. Vijay Kumar Misra Vs Superintendent,
District Jail, Gorakhpur 2002 0 Supreme (All)
792

31. Mallada K Sri Ram Vs Stat of Telangana &
ors. 2022 0 Supreme (SC) 394

32.
Satyapriya Sonkar Vs Superintendent,
Central Jail, Naini LAWS (ALL)-1999-10-11

33. St. of U.P. Vs Kamal Kishore Saini 1987 0
Supreme (SC) 833

34. Baby Devassy Chully alias Bobby Vs U.O.I.&
ors., (2013) 4 SCC 531

35. Arun Ghosh Vs West Bengal, 1970 SC 1228

36. Alijan Miya Vs District Magistrate, 1983 SC
1130

37. K.K. Saravana Vs St. of T.N., (2008) 9 SCC
89

38. Kamarunnissa Vs U.O.I.& anr., AIR 1991 SC
1640

39. Devesh Chourasia Vs The District Magistrate,
Jabalpur and Ors., (WP No. 10177/2021)

40. Pankaj Vs St. of U.P. & ors., 2016 1 Crimes
(HC) 8

41. Ayya alias Ayub Vs St. of U.P. & Anr., AIR
1989 SC 364

42. Vijay Narain Singh Vs St. of Bihar (1984) 3
SCC 14
43. Rekha Vs St. of T.N., (2011) 5 SCC 244

44. Dr Ram Manohar Lohia Vs St. of Bihar
(1966) 1 SCR 709

45. Pushkar Mukherjee Vs St. of W.B. (1969) 1
SCC 10

46. Shyamal Chakraborty Vs Commissioner of
Police, Calcutta (1969) 2 SCC 426.

47. In Dr Ram Manohar Lohia case (1966) 1 SCR
709

48. Ali Jaan Miyan Vs District Magistrate

49. Shalini Soni Vs U.O.I.

50. Mehrunissa Vs St. of Mah. (1981) 2 SCC 709

51. Mohd. Zakir Vs Delhi Administration (1982)
3 SCC 216

52. Khudiram Das Vs St. of W. B.l (1975) 2 SCC
81

(Delivered by Hon'ble Gajendra Kumar, J.)

1. Heard Shri Daya Shankar Mishra,
learned Senior Advocate, assisted by Shri
Chandrakesh Mishra and Shri Abhishek
Mishra
Advocates,
learned
counsel
appearing for the petitioner, Shri Patanjali
Mishra and Sri Satyendra Tiwari, learned
Additional Government Advocate for the
State-respondents
(1)
Superintendent,
District
Jail,
Azamgarh,
(2)
District
Magistrate, Azamgarh and (3) State of
Uttar Pradesh and Mr. Kameshwar Singh,
learned
counsel
representing
Central
Government.

2. Pleadings between the contesting
parties were exchanged and the matter is
ripe for final submissions.

3. After hearing the counsels for the
contesting parties on the earlier occasion on
21.04.2023, the Court has allowed the
650 INDIAN LAW REPORTS ALLAHABAD SERIES
petition, directing the authorities to release
the petitioner forthwith, if not wanted in
any other case, though detailed judgment
would follow. The operative portion of our
order reads thus :

"Heard
Sri
Daya
Shankar
Mishra, learned Senior Counsel assisted by
Sri Chandrakesh Mishra and Sri Abhishek
Kumar Mishra, learned counsels appearing
for the petitioner, Sri Patanjali Mishra and
Sri Satyendra Tiwari, learned A.G.A.
representing State as well as Sri Sanjay
Kumar Srivastava holding brief of Sri
Kameshwar
Singh,
learned
counsel
representing Central Government.

The
pleadings
have
been
exchanged between the parties and the
matter is ripe for final submissions.

We have heard the parties at
length and after hearing the parties, we are
of the considered opinion that the present
petition is liable to be allowed and
accordingly, stands allowed. The order
impugned dated 25.07.2022 is hereby setaside.

Reasons to be followed later on.

The petitioner-Rangesh Yadav is
hereby set at liberty.

The
Jail
Superintendent,
Azamgarh is directed to release the
petitioner forthwith, if he is not wanted in
some other cases."

4. By the instant judgement we are
giving detailed judgement.

The instant Writ Petition under
Article 226 of the Constitution of India has
been filed by the petitioner- Rangesh
Yadav, who is in custody in District Jail,
Azamgarh, through his brother, seeking
issuance of a Writ of Habeas Corpus
challenging his detention under an order
dated 25.07.2022 passed under Section 3
(2) of the National Security Act, 1980 and
the entire consequential proceedings and
continued detention as being illegal and
unconstitutional and a prayer has been
made to issue writ of Habeas Corpus under
Article 226 of Constitution of India
commanding the respondents to release the
petitioner
from
their
alleged
illegal
custody.

5.

The
detention
order
dated
25.07.2021
states
that
the
District
Magistrate, Azamgarh has been satisfied
that it has become necessary to pass a
detention order under Section 3 (2) of the
N.S.A. Act, 1980 to prevent the petitioner
from acting in any manner which would be
prejudicial to the maintenance of ''public
order'. The grounds of detention are
contained in a separate communication of
the same date issued by the District
Magistrate, Azamgarh which narrates the
incident which led to the passing of the
detention order. A first information report
dated 21.02.2022, being Case Crime No. 39
of 2022, under section 272, 273, 302, 34
I.P.C. & Section 60 (A) of U.P. Excise Act
was lodged at P.S. Ahraula, District
Azamgarh by Vijay Sonkar against the
petitioner and other co-accused namely
Suryabhan, Puneet Kumar Yadav, Rambhoj
and Ashok Kumar Yadav with the
allegation that his father Jhabbu Sonkar
purchased country made liquor (देसी शराब)
from the shop of the petitioner Rangesh
Yadav on 20.02.2022 and after consuming
it, his father has fallen ill and thereafter
become blind and his condition started
deteriorating. He was admitted in hospital
but eventually he died on 21.02.2022,
during the course of treatment. When the
complainant returned to village with dead
body of his father, he came to know that
co-villager Ramkaran Bind has also died
due to consumption of liquor purchased
5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
651
from the shop of the petitioner- Rangesh
Yadav .

6. The second F.I.R. being Case
Crime No. 40 of 2022, under section 272,
273 IPC & section 60 (A) of U.P. Excise
Act was lodged by the Excise Inspector at
P.S. Ahraula against the petitioner and
other
unknown
accused,
who
were
involved in the business of adulterated
country made liquor (Hooch).

7. On the ground of the same incident,
a third F.I.R. being Case Crime No. 60 of
2022, dated 22.02.2022, under section 272,
273, 34, 302 IPC & section 60 (A) of U.P.
Excise Act was lodged by one Rajendra
Prasad Yadav against the petitioner and coaccused namely Suryabhan, Puneet Kumar
Yadav, Rambhoj and Ashok Yadav with
the allegation that his brother become
serious. He also became blind and for the
purpose of treatment he was admitted in the
hospital on 21.02.2022 but he died during
the course of treatment.

8. An another F.I.R. under section
3(1) of Uttar Pradesh Gangsters and AntiSocial Activities (Prevention) Act, 1986 as
Case Crime No. 97 of 2022 at P.S. Ahraula
was lodged against the petitioner and other
co-accused on 07.04.2022.

9. The impugned detention order
dated 25.07.2022 was passed after three
months mentioning that by virtue of
exercising the power conferred under
section 3(3) of National Security Act, 1980
(Act No.65/1980), Rangesh Yadav who is
in Jail, as undertrial in Case Crime No.39
of 2022, under section 272, 273, 302, 34
IPC & section 60 (A) of U.P. Excise Act,
P.S. Ahraula, District Azamgarh and Case
Crime No. 97 of 2022, under section 3(1)
of Uttar Pradesh Gangsters and Anti-Social
Activities (Prevention) Act, 1986, P.S.
Ahraula, District Azamgarh is retained in
the custody of Superintendent, District Jail,
Azamgarh as an ordinary prisoner. In
grounds of detention it is stated that as a
fallout of the alleged incident there is a
sense of terror and anguish among the
people and children were not being sent to
schools,
shops
were
being
closed,
additional police force has been deployed
and tremendous publicity is being given in
newspapers,
general
public
has
a
perception that if people are fallen ill by
consuming liquor from licensed shop and if
petitioner is released from Jail he would
indulge in some illegal acts, which would
adversely impact on the normal tempo of
general public. The offence committed by
the petitioner, by virtue of involving in the
business of adulterated country made liquor
(Hooch), which resulted into death of seven
people, the other people got afraid and
panicky, the public order was disturbed and
tranquility of the locality was disturbed.
There is every likelihood that in the event
the petitioner is bailed out, as his counsel
and family members are trying hard, the
petitioner after coming out of jail would
have play in the society.

10. It has been averred in the writ
petition that petitioner is a law-abiding
citizen and has no criminal history to his
credit.
The
District
Magistrate
of
Azamgarh has mechanically and in an
arbitrary manner signed the detention order
dated 25.07.2022. The petitioner has been
in
District
Jail,
Azamgarh,
since
23.02.2023. The petitioner has never done
any act in violation of the maintenance of
public order. On 25.07.2022 there was no
possibility/probability of getting out on bail
of the petitioner nor the subjective
satisfaction
of
District
Magitrate,
Azamgarh,
therefore,
order
dated
652 INDIAN LAW REPORTS ALLAHABAD SERIES
25.07.2022 is illegal and unconstitutional
and liable to be set-aside. Case Crime No.
97 of 2022 under section 3(1) of Uttar
Pradesh
Gangsters
and
Anti-Social
Activities (Prevention) Act, 1986 was
registered
against
the
petitioner
on
07.04.2022 and bail application thereunder
was rejected on 19.05.2022. No second bail
application has been moved in the court nor
was any bail application moved in Hon'ble
High
Court.
The
District
Magistrate
Azamgarh did not consider this aspect of
the case thus the impugned detention order
is a punitive one therefore liable to be
quashed and set-aside.

11. There is no cogent and reliable
evidence against the petitioner in Case
Crime No. 39 of 2022, Case Crime No. 40
of 2022, Case Crime No. 60 of 2022 and
Case Crime No. 97 of 2022, this important
fact has not been considered at any level. In
the bail applications in Case Crime No. 40
of 2022 and Case Crime No. 60 of 2022,
defence plea was taken regarding false
implication and non-complicity of the
petitioner, but bail applications, affidavits
and annexures have not been forwarded by
the sponsoring authority as well as the
recommending authority to the District
Magistrate, Azamgarh, thus the District
Magistrate, Azamgarh, has been deprived
of considering the same for subjective
satisfaction, nor the same was forwarded to
the State Government as well as to the
Central Government for the consideration.
The petitioner has been provided only the
copy of the index of the bail application in
Case Crime No. 39 of 2022, bail
application (first four pages) and letter
dated
18.06.2022
of
the
office
of
Government Advocate of Hon'ble High
Court along with detention order dated
25.07.2022. Affidavits and anexures with
the bail applications have not been
furnished to the petitioner nor have been
sent to the State Government as well as
Central Government for their perusal.

12. There is no evidence regarding the
purchase of liquor from the licensed shop
and the same was taken and was drunk by
those persons who are alleged to have died,
fallen ill and became blind. Shri Mishra,
learned counsel submits that at least half a
dozen deshi liquor shops in that area.
Sponsoring authority and recommending
authority have relied on news items in local
newspapers which is not admisible in
evidence. The petitioner has been deprived
of effective representation as he has not
been provided with important and relevant
documents. A request has also been made
through representation dated 06.08.2022
for the same.

13. Petitioner has also made request
for the aid of legal friend and legal
practitioner at the time of hearing but the
same was not considered, while the
sponsoring authority and recommending
authority
were
represented
by
legal
officers/practitioners, which is violation of
Article 14 and 21 of the Constitution of
India. Against the detention order dated
25.07.2022 through District Jail, Azamgarh
representation dated 13.08.2022 was sent to
the State Government, Central Government
and Advisory Board, Lucknow but the
same has been rejected in an arbitrary
manner
which
is
the
violation
of
Constitutional
Right
and
Procedural
safeguards.

14.

The
representation
dated
13.08.2022 of the petitioner was not
expeditiously disposed off but decided with
negligence and latches being violative of
Article 22(5) of the Constitution of India.
The
second
representation
dated
5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
653
25.08.2022 was sent through speed post to
State Government as well as Central
Government of which no information has
been sent back to the petitioner. The
provisions of sections 3(2), 3(3), 3(5), 8,
10, 12, 14 of National Security Act and
Article 14, 19, 21, 22(5) of the Constitution
of India have not been complied with. Thus
the impugned detention order is liable to be
quashed/ set-aside.
15. On behalf of Suprintendent, District
Jail, Azamgarh, counter affidavit has been
filed by Sri Ranjit Kumar Singh stating that
the petitioner was admitted in District Jail,
Azamgarh on 23.02.2022. In pursuance of
remand orders in Case Crime No. 39 of
2022, Case Crime No. 40 of 2022, Case
Crime No. 60 of 2022 and remand order
dated 15.04.2022 in Case Crime No. 97 of
2022. While the petitioner was in judicial
custody in the aforesaid cases the said
detention order dated 25.07.2022 along
with grounds of the detention with all
relevant materials was received in the
office of the District Jail, Azamgarh on
25.07.2022 and the same was served on the
petitioner on the same day. The petitioner
was
also
informed
to
submit
the
representation at the earliest to the District
Magistrate Azamgarh/detaining Authority
within 12 days or before approval of the
detention order whichever was earlier.

16. The aforesaid detention order was
approved by the State Government on
02.08.2022, the communication of which
was received on 03.08.2022 and the same
was informed on the same day i.e.
03.08.2022. The petitioner submitted a first
representation in two sets on 06.08.2022
which was sent to the Office of District
Magistrate, Azamgarh on the same day.
The aforesaid first representation was
rejected on 09.08.2022, the communication
of which was received on 10.08.2022 and
the same was informed to the petitioner on
the same day. The petitioner again
submitted a second representation in four
sets on 14.08.2022 as to the Advisory
Board, Home Department, Government of
India, New Delhi and Home department,
Government of Uttar Pradesh, Lucknow.
The aforesaid second representation dated
14.08.2022 was rejected by the State
Government
on
29.08.2022,
communication of which was received on
30.08.2022 and the petitioner was informed
on
the
same
day.
The
aforesaid
representation dated 14.08.2022 was also
rejected by the Central Government on
24.08.2022 the communication of which
was received on 26.08.2022 and the
petitioner was informed on the same day.
The
petitioner
submitted
third
representation in three sets on 26.08.2022
to the Home Department, Government of
India, New Delhi and Home Department
Government, of Uttar Pradesh, Lucknow.
The aforesaid third representation was
rejected by the State Government on
30.09.2022, the communication of which
was received on 01.10.2022 and the
petitioner was informed on the same day.
The aforesaid third representation was
rejected by the Central Government on
15.09.2022 and the communication of
which was received on 15.09.2022 and the
petitioner was informed on the same day.

17. The information regarding hearing
before the Advisory Board, Lucknow was
received on 17.08.2022 and the petitioner
was informed with regard to the date, time
and place fixed before the Advisory Board
at Lucknow on the very same day. The
petitioner was also informed regarding his
right of hearing through next friend (nonadvocate), but no such request was made.
Hence,
petitioner
was
transferred
to
Lucknow on 21.08.2022 to produce himself
654 INDIAN LAW REPORTS ALLAHABAD SERIES
before Advisory Board, Lucknow on the
date of hearing i.e. on 22.08.2022. After the
report of Advisory Board, Lucknow the
said detention order was confirmed on
02.09.2022 by the State Government
initially for the period of three months from
the date of detention i.e. from 25.07.2022.
The communication of which received on
03.09.2022 and the petitioner was informed
on the very same day. At present the
petitioner is in custody in District Jail,
Azamgarh under the National Security Act
as well as in Case Crime No. 39 of 2022,
Case Crime No. 40 of 2022, Case Crime
No. 60 of 2022 and Case Crime No. 97 of
2022.

18. On behalf of District Magistrate,
Azamgarh counter affidavit has been filed
by Vishal Bhardwaj in which it is stated
that the detention order and grounds of
detention dated 25.07.2022 has been passed
by
the
answering
respondent
while
exercising power under 3(3) of National
Security Act. A first information report
dated 21.02.2022 in Case Crime No. 39 of
2022 registered by one Vijay Sonkar
regarding the death of his father Jhabba
Sonkar as a result of consumption of
country made liquor purchased from the
licensed shop of the petitioner and one
other co-villager Ramkaran Bind has also
died due to consumption of country made
liquor purchased from the shop of the
petitioner in which chargesheet has been
filed. Another FIR in Case Crime No. 40 of
2022 was also filed for the involvement of
the petitioner in the business of adulterated
country made liquor in which chargesheet
has been filed. Yet another FIR in Case
Crime No. 60 of 2022 was filed against the
petitioner
and
co-accused
in
which
chargesheet has been filed. Bail application
filed by the petitioner before the learned
court below in Case Crime No. 39 of 2022
was rejected on 07.04.2022. The petitioner
filed bail application before the Hon'ble
High Court. Notice of which was given to
the office of Government Advocate High
Court of Allahabad on 18.06.2022. Yet
another FIR was filed on 07.04.2022
against the petitioner and other co-accused
under section 3(1) of UP Gangster and
Anti-Social Activities (Prevention) Act
1986 in Case Crime No. 97 of 2022.

19. Due to offence committed by the
petitioner public order was disturbed and
tranquility of the locality of the petitioner
was disturbed and there was immense
possibility of release of the petitioner as his
bail application was pending before the
Hon'ble High Court, therefore, the Station
House
officer/
sponsoring
authority
submitted his report to the Superintendent
of Police, Azamgarh, through concerned
Circle Officer and recommended for
initiating the proceedings against the
petitioner under National Security Act. The
Circle Officer forwarded the report to the
Additional Superindentent of Police (rural),
Azamgarh, on the same day who forwarded
the same to the Superintendent of Police,
Azamgarh,
on
19.07.2022.
The
Superintendent of Police, Azamgarh, sent
his report dated 21.07.2022 to the District
Magisrate,
Azamgarh.
The
answering
respondent/detaining Authority after going
through the entire material available on
record, report of the sponsoring authority
and recording his subjective satisfaction
passed
the
detention
order
dated
25.07.2022 exercising power under section
3(3) of National Security Act. Thereafter,
the detention order and grounds of
detention dated 25.07.2022 along with
relevant records were supplied to the
petitioner through Jail, Authorities on
26.07.2022. The petitioner along with other
co-accused one was involved in illegal
5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
655
business of adulterated country made liquor
and by consuming it seven people died as
such activities of the petitioner are
prejudicial to the society. Information was
given on 17.08.2022 to the petitioner with
regard to the opportunity of hearing before
UP
Advisory
Board,
Lucknow.
The
appearance of the petitioner before UP
Advisory Board, Lucknow was made for
hearing on 22.08.2022.

20. On behalf of State Government of
UP counter affidavit has been filed by
Sabhapati Bind in which it is stated that
detention order dated 25.07.2022, grounds
of
detention
and
all
other
relevant
documents forwarded by the District
Magistrate, Azamgarh vide order dated
25.07.2022 was received by the State
Government on 28.07.2022. The State
Government
approved
the
order
of
detention on 01.08.2022 the same was
communicated to the District Authorities
on 02.08.2022 within 12 days from the date
of detention order as required under section
3(4) of the Act. A copy of detention order,
grounds of detention and all other relevant
documents, received from the District
Magistrate were also sent to the Central
Government by the State Government as
required under section 3(5) of the Act and
provisions of the aforesaid sections of the
Act have been fully complied with. A copy
of
petitioner's
representation
dated
06.08.2022 along with parawise comments
was
received
on
11.08.2022,
State
Government
sent
a
copy
of
the
representation with parawise comments
thereon to the Central Government, New
Delhi through speed post and to the
Advisory Board, Lucknow with separate
letters both dated 11.08.2022. The State
Government
after
due
consideration
rejected the representation finally on
23.08.2022 the information of which was
sent
to
the
District
Authorities
on
24.08.2022.
Representation
of
the
petitioner has been dealt with expeditiously
at every stage of the Government. Copy of
the petitioner's second representation dated
14.08.2022 along with parawise comments
was received on 18.08.2022. The State
Government sent copy of representation
and parawise comments thereon to the
Central Government and the same was
finally rejected on 26.08.2022, informing
the same was communicated by radiogram
dated 29.08.2022, the representation has
been dealt with expeditiously at every stage
by the State Government. U.P. Advisory
Board, Lucknow vide its letter dated
17.08.2022, informed by State Government
that the case of the petitioner would be
taken up for hearing on 22.08.2022 and
directed that the petitioner be informed that
if he desires to attend the hearing before
U.P. Advisory Board, Lucknow, along with
his next friend (non-Advocate), he could do
so and be allowed to take his next friend
(non-advocate) along with him. The fact
was accordingly communicated to the
petitioner through the District Authorities
by the State Government. The petitioner
appeared for personal hearing before the
Advisory Board, Lucknow, on 22.08.2022
the date fixed. The UP and Advisory
Board, Lucknow, on the said date fixed,
heard
the
petitioner
in
person
and
submitted
its
report
to
the
State
Government that there is sufficient cause
for
the
preventive detention of
the
petitioner under the National Security Act
1980. The aforesaid report was received
well within seven weeks from the date of
the detention of the petitioner as provided
in section 11(1) of the Act. The copy of the
petitioner's representation dated 30.08.2022
was sent to the Central Government with
parawise comments and was examined and
finally rejected by the State Government on
656 INDIAN LAW REPORTS ALLAHABAD SERIES
14.09.2022. The information of which was
duly communicated to the petitioner and
the representation of the petitioner has been
dealt with expeditiously at every stage by
the State Government.

21. A counter affidavit has been filed
by Smt. Meena Sharma on behalf of the
Union of India also stating that copy of the
representation dated 06.08.2022 of the
detenue was sent to the ministry by the
State Government and the same was duly
considered and not acceded by the Central
Government. Accordingly, the detenue
along with Authorities concerned were
informed vide wireless message dated
24.08.2022. Details of the processing of the
representation has also been given in the
counter affidavit. Representation dated
13.08.2022 and 26.08.2022 were duly
considered and the request regarding
revocation of the detention order dated
25.07.2022
passed
by
the
District
Magistrate, Azamgarh was not acceeded by
the Central Government. The detenue along
with Authorities concerned were informed
vide wireless message dated 23.09.2022.
Details
of
the
processing
of
the
representation has also been given in the
counter affidavit. Due to absence of
provisions in the Act for consideration of
2nd and 3rd representation, the Deputy
Secretary was of the view not to entertain
these representation for consideration of the
Union Home Secretary, thereafter, with
comments sent the file to the Joint
Secretary
on
07.09.2022.
After
due
examination,
representations
dated
13.08.2022 and 26.08.2022 were rejected
and sent the file back to the Joint Secretary
on 22.09.2022 and the detenue and the
Authorities concered were informed vide
wireless
message
dated
23.09.2022.
Representations of the detenue were dealt
with promptly and efforts were made to
examine the matter with utmost care and
caution with promptitude, hence, there was
no wilful and deliberate delay in disposal of
the representations on part of the answering
respondent. Action of the respondent no.4
has been in accordance with the provisions
of National Security Act, 1980 and no
rights of the detenue have been infringed.

22. The detention order has been
challenged by means of the instant writ
petition mainly on several grounds. The
first ground of challenge is that the alleged
incident was an offence against individuals
which affected "law and order", but it does
not affect "public order" so as to attract the
provisions of Section 3(2) of the NSA,
1980. The second ground of challenge is
that the incident which took place on
20.02.2022 is a stale incident which has no
proximity with the detention order and the
invocation of the provisions of the NSA,
1980 after a long delay on 25.07.2022 was
neither warranted nor justified. The third
ground of challenge is that copies of the
entire relevant material referred to and
relied upon in the detention order have not
been provided to the petitioner. The
petitioner has been provided only the copy
of the index of the bail application in Case
Crime No. 39 of 2022, bail application
(first
four
pages)
and
letter
dated
18.06.2022 of the office of Government
Advocate of Hon'ble High Court along with
detention
order
dated
25.07.2022.
Affidavits and anexures with the bail
application have not been furnished to the
petitioner nor they have been sent to the
State Government as well as Central
Government for their perusal. The copies of
the report of the District Magistrate and
that of the Advisory Board, Lucknow were
not provided to the petitioner as also
comments on the said applications have not
been provided to the petitioner in violation
5 All. Rangesh Yadav Vs. Superintendent of District Jail, Azamgarh & Ors.
657
of the principles of natural justice, which
renders the detention order unsustainable in
law. The fourth ground of challenge is that
petitioner has not been given aid of legal
friend/legal practitioner at the time of
hearing despite a request made for the
same. The fifth ground of the challenge is
that State Government as well as Central
Government
have
not
dealt
with
representation made by the petitioner with
expedition which is the violation of
Constitutiona
safeguards
provided
in
favour of the petitioner. Lastly the
detention order has been assailed on the
ground that on 25.07.2022, i.e. on the date
of passing of the detention order, the
petitioner was already in custody and he
had not even filed an application for bail in
Case Crime No. 97 of 2022 under the U.P.
Gangsters
and
Anti-Social
Activities
(Prevention) Act and there was no
possibility of the petitioner acting in any
manner prejudicial to the maintenance of
public order and in these circumstances, the
provisions of Section 3(2) of the NSA,
1980 are not attracted and the detention
order is unsustainable in law.

23. In support of his submissions,
Shri Daya Shankar Mishra, learned Senior
Advocate has placed reliance on the
judgments in the cases of Ichhu Devi
Choraria Vs. Union of India and others,
1980 AIR 1983, Mohinuddin @ Moin
Master Vs. District Magistrate, Beed and
others, 1987 AIR 1977, State of U.P. Vs.
Kamal Kishore Saini, 1988 AIR 208, M.
Ahamedkutty Vs. Union of India, 1990
SCR (1) 209, Inamul Haq Engineer Vs.
Superintendent, Division/District Jail,
Azamgarh, 2001 Cri.L.J. 4398, Lallan
Goswami Ajayn Vs. Superintendent,
Central, 2002 (45) ACC 1089, Brijbasi
Pathak Vs. State of Uttar Pradesh and
others, 1985 (suppl.) ACC 273, Mrs. T.
Devaki Vs. Government of Tamil Nadu
and others, 1990 AIR 1086, Smt. Angoori
Devi for Ram Ratan Vs. Union of India
and
others,
1989
AIR
371,
Ram
Manohar Lohia Vs. State of Bihar and
another, AIR 1966 SC 740, Sant Singh
Vs. District Magistrate and others, 2000
CriLJ 2230, Ram Kripal Singh Vs. State
of U.P. And others, 1986 CriLJ 1437,
Jitendra Nath Biswas vs. The State Of
West Bengal AIR 1975 SC 1215, Banka
Sneha Sheela Vs. The State of Telangana
and others, (2021) 9 SCC 415, SK.
Serajul Vs. State of West Bengal, AIR
1975 Supreme Court 1517, Jagan Nath
Biswas Vs. The State of W.B, AIR 1975
Supreme Court 1516, Md. Sahabuddin
Vs. The District Magistrate 24 Parganas
and others, 1975 CRI. L.J. 1499,
Rajammal vs. State of Tamil Nadu And
Another AIR 1999 SC 684, Kundanbhai
Dulabhai Shaikh vs. Distt. Magistrate,
Ahmedabad And Ors, Raj Kishore
Prasad vs. State of Bihar And Ors. AIR
1983 SC 320, Rama Dhondu Barode vs.
Saraf, Commissioner of Police & Ors.,
Syed Mehtab vs. Supdt. Central Jail,
Naini,
Aftab
Ahmad
vs.
District
Magistrate, Gonda and others 2002 (45)
ACC
422,
Bhanu
Sharan
vs.
Superintendent, Central Jail, Naini,
Allahabad and others 2002 (45) ACC
599, Vishal @ Panda vs. District
Magistrate, Mainpuri and others 2004
(50) ACC 928, Virendra Kumar Nayak
vs. The Superintendent of Naini, Mohar
Ali vs. State of U.P., Smt. Khatoon
Begum Etc. Etc. vs. Union of India and
Ors. 1981 AIR 12077, 1981 SCR (3) 137,
Vijay Kumar Vs. State of J & K &
Others 1982 AIR 1023, 1982 SCR (3)
522, Sk. Abdul Munnaf vs. State of W.B.
1974 0 Supreme (SC) 118, Rabindra
Kumar Ghosel vs. State of W.B. 1975 0
Supreme (SC) 122, Vijay Kumar Misra
658 INDIAN LAW REPORTS ALLAHABAD SERIES
vs.
Superintendent,
District
Jail,
Gorakhpur 2002 0 Supreme (All) 792,
Mallada K Sri Ram vs. Stat of
Telangana & Ors. 2022 0 Supreme (SC)
394,
Satyapriya
Sonkar
vs.
Superintendent,
Central
Jail,
Naini
LAWS (ALL)-1999-10-11, State of U.P.
vs. Kamal Kishore Saini 1987 0 Supreme
(SC) 833.

24. Opposing the writ petition, Shri
Patanjali Mishra and Shri Satyendra
Tiwari, learned A.G.A. have submitted that
there is no thumb rule that the preventive
detention can be ordered only if a bail
application is pending. Its genesis lies
under Article 22 of the Constitution of
India.
However,
normally
preventive
detention is ordered only when a bail
application is pending. As the petitioner
was already in custody in several criminal
cases, instant proceedings under the NSA,
1980 was invoked.

25. He has submitted that whether the
case involves a threat to maintenance of
"public order" or "law and order" depends
upon the facts of each case and the order of
preventive order has to be passed by the
detaining Authority on the basis of his
subjective satisfaction in this regard. Mr.
Patanjali has submitted that the incident
took place by which the public at large
suffered the cons of consumption of
adulterated liquor and resultantly several
people lost their lives. Out of fear and
terror caused by the anti-social activities of
the petitioner and co-accused, the parents
refrained from sending their kids to schools
and nearby shops were closed, therefore, it
involves breach of public order and not
merely a law and order. He has submitted
that the detention order under NSA, 1980
can be passed in any of the following
conditions: (a) if the accused is not in
custody or when he is in custody (b) the
detaining authority is satisfied that he may
be enlarged on bail (c) where no bail
application is pending.

26. Sri Patanjali Mishra has further
submitted that even if the Court comes to
the conclusion that the relevant material
was not provided to the petitioner, it would
not affect the validity of the detention order
because the detention order has been
passed on many grounds and not on one.
Section 5 A of the NSA, 1980 provides that
the detention order shall not be deemed to
be invalid or inoperative merely because
one or some of the grounds for passing the
detention order is vague, non-existent, not
relevant, not connected or not proximately
connected with such person or invalid for
any other reason, whatsoever. There is a
live and proximate link between the
incident and the detention order passed
after recording the subjective satisfaction
based on the material collected and
forwarded by the sponsoring Authority to
the detaining Authority. The impugned
order is valid, there is no illegality therein
as the mandatory procedure as envisaged in
the Constitution as well as N.S.A. Act has
been complied with in letter and spirit.

27. Sri Patanjali Mishra has placed
reliance on judgments rendered in Baby
Devassy Chully alias Bobby Vs. Union of
India and others, (2013) 4 SCC 531,
Arun Ghosh Vs. West Bengal, 1970 SC
1228,
Alijan
Miya
Vs.
District
Magistrate, 1983 SC 1130 and K.K.
Saravana Vs. State of Tamil Nadu,
(2008) 9 SCC 89 and Kamarunnissa Vs.
Union of India and another, AIR 1991
SC 1640.

28. Shri Kameshwar Singh, learned
counsel
appearing
for
the
Central
5 All. Rangesh Yadav Vs.