# Sachin @ Banti v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 607
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-16
- **Case number:** Habeas Corpus Writ Petition No. 4839 of 2003
- **Bench:** U.S. Tripathi, D.P. Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sachin-banti-v-state-of-u-p-and-others-40137
- **Pages:** 15

## Headnote

(A) National Security Act-Section 3 (2)-
Detention order period of detention not
specified whether is the detention order
bad on this account ? held- No.

Held- Para 13

In view of the above decisions, the
detaining
authority
is
not
under
obligation to specify the period of
detention and the detention order is not
rendered illegal on account of detaining
authority's failure to specify period of
detention in the order. It is also clear
that the words 'during such period as
may be specified in the order' occurring
in section 3 (2) of the Act relate to the
delegation/authorization to the District
Magistrate or the Commissioner of the
Police and not to the period of detention
of a detenu. Therefore, we find no force
in the above detention and hold that the
detention is not invalid on account of
non mentioning of period of detention of
the detenu.

(B) National Security Act- Section 3 (2)-
Delay in decision of Representation-
unexplained unreasonable delay-helddetention order illegal.

Held- Para 50

In view of our findings on the above
points in Writ Petition No. 4842 and
4846, there was un-explained delay on
the part of Central Government in
deciding representation of the petitioner.
Therefore,
continued
detention
of
petitioner Rajesh and Subhash have
rendered invalid. We also find that there
is no force in the writ petition of other
petitioners Sachan, Vinod and Nauratan.

## Text

_Characters 0–39,686 of 48,025. This is a partial read: ask again with offset=39686 for what follows._

3 All] Sachin @ Banti V. State of U.P. and others
607
9. The writ petition is hereby
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.5.2003

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

Habeas Corpus Writ Petition No. 4839 of 2003

Sachin @ Banti

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

Counsel for the Petitioner:
Sri Swetashwa Agrawal
Sri Rishi Chadha

Counsel for the Respondents:
S.C.

(A) National Security Act-Section 3 (2)-
Detention order period of detention not
specified whether is the detention order
bad on this account ? held- No.

Held- Para 13

In view of the above decisions, the
detaining
authority
is
not
under
obligation to specify the period of
detention and the detention order is not
rendered illegal on account of detaining
authority's failure to specify period of
detention in the order. It is also clear
that the words 'during such period as
may be specified in the order' occurring
in section 3 (2) of the Act relate to the
delegation/authorization to the District
Magistrate or the Commissioner of the
Police and not to the period of detention
of a detenu. Therefore, we find no force
in the above detention and hold that the
detention is not invalid on account of
non mentioning of period of detention of
the detenu.

(B) National Security Act- Section 3 (2)-
Delay in decision of Representation-
unexplained unreasonable delay-helddetention order illegal.

Held- Para 50

In view of our findings on the above
points in Writ Petition No. 4842 and
4846, there was un-explained delay on
the part of Central Government in
deciding representation of the petitioner.
Therefore,
continued
detention
of
petitioner Rajesh and Subhash have
rendered invalid. We also find that there
is no force in the writ petition of other
petitioners Sachan, Vinod and Nauratan.

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

1. The above five writ petitions have
been filed separately by each of the
petitioner for quashing their detention
order dated 16.12.2002 passed by District
Magistrate, Rampur, respondent no. 2
under section 3 (2) of National Security
Act.

2. Each of the petitioner was
separately served with the grounds of
detention, alongwith order of detention,
which stated that on 16.11.2002 at about 5
p.m. one Darashan Lal resident of
Balmiki Basti, Radha Road, Civil Lines,
district Rampur lodged a report at the
Police Station Civil Lines against the
petitioners alleging that on 15.11.2002 a
quarrel had taken place between his son
Sumit and the petitioners Vinod and
Subhash on playing cricket, which was
pacified by the people of the Mohalla. But
the petitioners were not happy. On
account of above incident, all the
petitioners armed with country made
pistols, in order to create terror in the
Biradari raided the house of Sumit and
fired on him with intent to kill him. When
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608 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
hearing sound of fire, his neighbours
came to his rescue, the petitioners again
attacked on them. Due to which Rahul,
Vijay, Ram Prasad, Papoo, Deepak and
Ankush aged about 4 years were badly
injured. The petitioners had also cut the
telephone wire, so that information of the
incident could not be sent to the
authorities concerned.

3. On the basis of above report a
case at crime no. 157 of 2002 under
sections 147, 148, 149, 307 IPC was
registered at P.S. Civil Lines, Rampur. On
account of above incident, public order
was badly affected and in order to
maintain
public
order,
police
of
neighbouring police stations was called.
Investigation of the case was done by Sri
Mahabir Singh, Sub Inspector, who had
reached the spot at 4.30 p.m. on receiving
telephonic
information.
During
investigation injured Sumit, Deepak,
Pappu, Rahul, Ankush and Vijay were
interrogated
on
16.11.2002.
The
confirmed the incident in their statements
and also told that on account of incident a
sense of terror and insecurity was created
on the spot. Persons present on the road
started running helter skelter and chaos
was created. People closed their doors.
The people of the locality felt insecure
and could not dare to come out of their
houses. Normal flow of life was stopped.
The traffic on the road also stopped on
account of incident.

4. The news of incident was
published in daily news papers 'Dainik
Jagran'
and
'Amar
Ujala'
with
photographs, which again created a sense
of insecurity and terror in the mind of
public. The Local Intelligence Unit also
submitted a report on 17.11.2002 that
petitioners had created terror in their
'Birdadari' and committed atrocities on
persons on petty matters. The incident
was committed in the month of Ramjan
when the people were busy in purchasing
articles for 'Roja Aftar'. On account of
the incident in the month of Ramjan
public order of the society was adversely
affected.
The
people
of
Muslim
community also became sensitive.

On 21.11.2002 petitioner Subhash
was arrested at 1.30 p.m. in Mohalla
Power House, Panwaria along with
country
made
pistol
and
cartridge
regarding which a case at crime no. 1579
of 2002 under sections 25 Arms Act was
registered.
On
23.11.2002
petitioner
Vinod and Nauratan were arrested at 4.10
p.m. On Government Press Road and each
of them were found in possession of a
country made pistol and cartridges,
regarding which cases at crime no. 1548
of 2002 and 1585 of 2002 under section
25 Arms Act were registered. Petitioners
Rajesh @ Boby and Sachin @ Banti were
taken into police custody and on their
pointing out country made pistols used in
the
incident
were
recovered
on
27.11.2002 at 2.05 p.m., regarding which
cases at crime no. 1607 of 2002 and 1608
of 2002 were registered. The petitioners
committed dare devil incident dated
16.11.2002 to show that nobody could
dare to raise voice against them.

5. The petitioners were detained in
jail in district jail Rampur in connection
with case crime no. 1571 of 2002. They
had also moved bail applications in the
Court on 28.1.2002. There was real
possibility of petitioners being released on
bail and after release on bail, their
indulging in similar activities prejudicial
to maintenance of public order.

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6. On the basis of above materials
the detaining authority was satisfied that
detention of petitioners under section 3
(2) of National Security Act was essential.

The detention order was approved by
the State Government on 18.12.2002 for a
period of one year.

7. All the five writ petitions were
connected with each other and detention
orders were passed on account of the
same incident. Common questions of facts
and law are involved in all the writ
petitions and therefore all the writ
petitions are being disposed of by a
common order with the consent of learned
counsel for the parties.

We have heard learned counsel for
the petitioner, learned A.G.A. and learned
Standing Counsel for the respondents and
have perused the record.

Learned counsel for the petitioners
raised following grounds for challenging
the detention order of the petitioners.

(1) The detaining authority had not
mentioned the period of detention in the
detention order and non mention of the
period of detention makes the order
invalid.

(2) The detaining authority had not
supplied the power of delegation under
which he was authorised to pass detention
order and non supply of the above
authority rendered detention order invalid.

(3) (a)
The detention order was passed
on a solitary incident, which was only
matter of law and order and it had no
effect or impact on public order.
(b) At the time of passing of detention
order, the petitioners were detained in Jail
and there was no cogent material or
compelling necessity before the detaining
authority to record his satisfaction that the
petitioners on release on bail would
indulge in similar activities prejudicial to
maintenance of public order.

(4) There was delay in deciding
representation of the petitioners.

Point No. 1

8.

Learned
counsel
for
the
petitioners contended that since the
impugned detention order did not specify
the period for which each of the petitioner
was required to be detained and therefore
the
order
was
illegal.
He
further
contended that in the instant case the
order of detention was passed by the
District Magistrate, who was having
delegated power under section 3 (2) of
National Security Act, which says that the
State Government may direct that during
such period as may be specified in the
order,
such
District
Magistrate
or
Commissioner of Police may also, if
satisfied as provided in sub section (2),
exercise the powers conferred by the said
sub section. Therefore, the detaining
authority was under obligation to specify
the period for which the order of
detention was passed.

9. Section 3 of National Security Act
reads as under:-

"Power to make orders detaining certain
persons-(1) The Central Government or
the State Government may-

(a) if satisfied with respect to any person
that with a view to preventing him
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610 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
from acting in any manner prejudicial
to the defence of India, the relations
of India with foreign powers, of the
security of India, or

(b) if satisfied with respect to any
foreigner
that
with
a
view
to
regulating his continued presence in
India or with a view to making
arrangements for his expulsion for
India.

it is necessary so to do, make an order
directing that such person be detained.

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

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

(3) If having regard to the circumstances
prevailing or likely to prevail in any area
within the local limits of the jurisdiction
of
a
District
Magistrate
or
a
Commissioner
of
Police,
the
State
Government
is
satisfied
that
it
is
necessary so to do, it may, by order in
writing, direct, that during such period as
may be specified in the order, such
District Magistrate or Commissioner of
Police may also, if satisfied as provided in
sub section (2), exercise the powers
conferred by the said sub section.

Provided that the period specified in
an order made by the State Government
under this sub section shall not, in the first
instance, exceed three months, but the
State Government may, if satisfied as
aforesaid that it is necessary so to do,
amend such order to extend such period
from time to time by any period not
exceeding three months at any one time.

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

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

(5) When any order is made or approved
by the State Government under this
section, the State Government shall,
within seven days, report the fact to the
Central Government together with the
grounds on which the order has been
made and such other particulars as, in the
opinion of the State Government, have a
bearing on the necessity for the order.

9. Section 3 (2) empowers the State
Government to delegate its power as
conferred on it under sub section 1 to the
District Magistrate or Commissioner of
Police, if he is satisfied that the
circumstances prevailing or likely to
prevail in an area within the local limits of
the jurisdiction of a District Magistrate or
a Commissioner of Police, makes it
necessary to delegate the power to them.
It further provides that the order of
delegation shall be in writing and it shall
also specify the period during which the
District Magistrate or the Commissioner
of Police, is authorised to exercise the
power of the State Government under sub
section (1) of Section 3. Proviso to sub
section (2) lays down that the delegation
should not be for an unlimited period. It
should not be for a period of more than
three
months.
Once
the
State
Government's power under section 3 (1)
is delegated to the District Magistrate or
Commissioner
of
Police,
they
are
authorised to exercise that power on the
ground specified in Section 3 (1) of the
Act.

10. In the case of Ashok Kumar vs.
Delhi Administration and others, AIR
1982 SC 1143 : 1982 SCC (Crl.) 451 it
was held in para 11 As below:
"It is plain from a reading of S. 3 of
the National Security Act that there is an
obvious fallacy underlying the submission
that the detaining authority had the duty
to specify the period of detention. It will
be noticed that sub -s. (1) of S. 3 stops
with the words ' make an order directing
that such person be detained', and does
not go further and prescribe that the
detaining authority shall also specify the
period of detention. Otherwise, there
should have been the following words
added at the end of this sub section 'and
shall
specify
the
period
of
such
detention'. What is true of sub section 1
of section 3 is also true of sub section 2
thereof. It is not permissible for the
Courts,
by
a
process
of
judicial
construction, to alter or vary the terms of
a section. Under the scheme of the Act,
the period of detention must necessarily
vary according to the exigencies of each
case i.e. the nature of the prejudicial
activity complained of. It is not that the
period
of
detention
must
in
all
circumstances extend to the maximum
period of 12 months as laid down in S. 13
of the Act.

11. The above question was again
considered by the Apex Court in the case
of T. Devaki v. Government of Tamil
Nadu and others, 1990 SCC (Crl.) 348.

12. After discussing the decisions of
the Apex Court in the cases of Gurbux
Anandram Bhiryani, 1988 SCC (Crl.)
914, Ujagar Singh vs. State of Punjab,
AIR 1952 SC 350, Suna Ullah Butt v.
State of J&K 1973 SCC (Crl.) 138,
Suresh Bhojraj Chellani v. State of
Maharashtra, 1983 SCC (Crl.) 202 and
A.K. Roy v. Union of India, 1982 SCC
(Crl.) 152 the Apex Court held as below: -

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612 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
"It is thus clear that the view taken in
Gurbux Bhiryani case (supra) on the
interpretation
of
Section
3
of
the
Maharashtra Act is in correct. This Court
has while considering the question of the
validity of the detention order made under
different Acts, consistently taken the view
that it is not necessary for the detaining
authority or the State Government to
specify the period of detention in the
order. In the absence of any period being
specified in the order the detenue is
required to be under detention for the
maximum period prescribed under the
Act, but it is always open to the State
Government to modify or revoke the
order even before the completion of the
maximum period of detention. We are,
therefore,
of
the
opinion
that
the
impugned order of detention is not
rendered illegal on account of the
detaining authority's failure to specify
period of detention in the order".

13. In view of the above decisions,
the detaining authority is not under
obligation to specify the period of
detention and the detention order is not
rendered illegal on account of detaining
authority's failure to specify period of
detention in the order. It is also clear that
the words 'during such period as may be
specified in the order' occurring in section
3
(2)
of
the
Act
relate
to
the
delegation/authorization to the District
Magistrate or the Commissioner of the
Police and not to the period of detention
of a detenu. Therefore, we find no force in
the above detention and hold that the
detention is not invalid on account of non
mentioning of period of detention of the
detenu.

Point No. 2

14. The grounds of detention though
does not indicate by which Government
order
the
Detaining
Authority
was
authorised to pass order of detention. But
his authority have no where been
challenged in any paragraph of the writ
petition.
Therefore,
the
Detaining
authority
did
not
disclose
his
authorization in his counter affidavit. The
learned A.G.A. has pointed out that by
Notification No. 111-1-1-80 C x 7 dated
September 13, 2002, published in U.P.
Extraordinary Gazettee dated September
13, 2002, (Chapter 4 Part B) in exercise of
power conferred on him by Sub section 3
of Section 3 of National Security Act,
1980, the Governor of U.P. was pleased to
empower all the District Magistrate of the
State to exercise the powers conferred by
sub section 2 of section 3 for a further
period of three months with effect from
September 17, 2002. Fax copy of above
notification was also shown.

15. The impugned detention order
was passed on 16.12.2002 and therefore
on the date of passing the detention order
the District Magistrate was authorize to
exercise power conferred by section 3 (2)
of National Security Act. Therefore, the
order of detaining authority was not
without jurisdiction and non mentioning
his above authority does not invalidate the
detention order.

Points No. 3 (a), 3 (b)

16. Learned counsel for the
petitioners contended that incident in
question related to simply law and order
problem, as it was a solitary incident and
has no effect or impact on public order.
Therefore, detention order on the basis of
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613
above incident is invalid. He further
contended that a solitary incident was not
sufficient without any other material on
record to record satisfaction of the
detaining authority that on release on bail,
each of the petitioner would indulge in
similar
activities
prejudicial
to
the
maintenance of public order. He has
placed reliance on the decision of Apex
Court and of this Court in Ayya @ Ayub
vs. State of U.P. 1989 (1) AWC 90,
Vashistha Narain Karwaria vs. State of
U.P., 1991 AWC 558, Seshdhar Misra vs.
Superintendent, Central Jail, Naini and
others, 1985 (suppl.) ACC 304, Smt.
Shashi Agarwal vs. State of U.P. and
others, 1988 SCC (Crl.) 178, Rajeev
Bharati vs. District Magistrate, 1995
AWC 120, Surya Prakash Sharma vs.
State of U.P. and others, 1994 SCC (Crl.)
1691, Dharmendra Suganchand Chelawat
and another v. Union of India and others
AIR 1990 SC 1196 and Gulab Mehra vs.
State, 1987 SCC (Crl.) 721.

17. On the other hand, the learned
A.G.A. contended that the incident in
question taken as a whole, in the back
ground in which it was committed, the
previous antecedents of the petitioners,
which are clear from the material
available on record clearly indicated that
incident in question related to public order
and there were sufficient materials before
the detaining authority to record his
satisfaction that on release on bail, the
petitioners would indulge in similar
activities prejudicial to the maintenance
of public order.

The term 'public order' and 'law and
order' have been considered by the Apex
Court and this Court in several cases.

18. In Gulab Mehra vs. State of U.P.
and others (supra) it was held by the Apex
Court that an act whether amounts to a
breach of law and order or a breach of
public order solely depends on its extent
and reach to the society. If the act is
restricted to particular individuals or a
group of individuals it breaches the law
and order problem but if the effect and
reach and potentiality of the act is so deep
as to affect the community at large and or
the even tempo of the community then it
becomes a breach of public order.

19. In Smt. Angoori Devi for Ram
Ratan vs. Union of India, 1989 (26) ACC
1 SC the Apex Court observed as below :

"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 two concepts.

20. In T. Devakai vs. Government of
Tamil Nadu and others (supra) it was held
that 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
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614 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
disturbance of the public order, is a
question of degree and the extent of the
reach of the act upon the society. A
solitary assault on one individual can
hardly be said to disturb public order in
jeopardy so much as to bring the case
within the pur view of the Act providing
for preventive detention. Such a solitary
incident can only raise a law and order
problem and no more.

21. In the case of Sheshdar Misra vs.
Superintendent, Central Jail, Naini and
others (supra) a Full Bench of this Court
considered the question of distinction
between law and order and public order
under section 3 of the Act and held:

"Wherein a detention order the
detenue was alleged to have committed
murder of an Advocate at a public place
as a result of which local residents closed
the doors of their houses and shops and it
was further alleged to have threatened the
prosecution witnesses to desist from
tendering evidence in the murder case
pending against him, the two grounds
being intimately connected with incident
of murder committed on account of
personal animosity and there being no
material on record to suggest that the
detenue would have indulged into similar
activities of murder, in future, it could not
be said that the single act of murder had
its impact on the society to such an extent
as to disturb the normal life of the public.
Merely because the local residents closed
the doors of their houses and shops did
not mean that the balanced tempo of the
life of the general public was disturb as a
result of which the members of the public
not carry on normal avocation of their
life.

22. In the case of Arun Ghosh vs.
State of West Bengal, AIR 1970 SC, 1228
the Apex Court held as below:-

"This
Court
pointed
out
the
difference between maintenance of law
and order and its disturbance and the
maintenance of public order and its
disturbance. Public order was aid to
enhance more of the community than law
and order. Public order is the even tempo
of the life of the community taking the
country as a whole or even a specified
locality. Disturbance of public order is to
be distinguished from acts directed
against individuals which do not disturb
the society to the extent of causing a
general disturbance of public tranquility.
It is the degree of disturbance and its
effect upon the life of the community in a
locality which determines whether the
disturbance amounts only to a breach of
law and order.

23. It means therefore that the
question whether a man has only
committed 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 the extent of reach
of the act upon the society."

24. The incident in instant case if
tested on the guidelines laid down in
above
decisions,
we
find
that
an
altercation had taken place on 15.11.2002
at about 5 p.m. between petitioner
Subhash and Sumit S/o Darshan Lal on
playing cricket. On account of above
incident all the petitioners to show their
highhandedness and to create terror in
their biradari armed with country made
pistols raided the house of Sumit, S/o
Darshan Lal and fired by country made
pistols in order to kill Sumit. When the
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615
neighbouring persons heard the sound of
fire came to the spot, all the petitioners
fired on them, due to which Rahul, Vijay,
Ram Prasad, Pappu, Deepak and Ankush
aged about 4 years were badly injured.
Not only this, the petitioners before
committing the above incident had cut
telephone wire, so that the information of
the incident could not be sent to Higher
Authorities. The above incident was
committed in the month of Ramjan when
the people of Muslim community were
busy in purchasing articles for Roja After.
The material on record further shows that
the locality in which the incident took
place had mixed population of Hindus and
Muslims and the manner in which the
dare devil incident was committed by the
petitioners created a sense of insecurity,
chaos and panic amongst the people of the
locality. The report of Local Intelligence
Unit dated 17.11.2002 placed before the
Detaining Authority also indicated that
the petitioners were persons of criminal
mentality and on the occasion of "Holi"
they
had
also
attacked
on
Sikh
community, but due to their terror nobody
could dare to lodge report against them.
On one side of the locality in which the
incident in question took place there lived
people of Muslim community and on
other side people of Sikh community were
residing and they became fear stricken
and sensitive on account of dare devil
incident committed at public place in
broad day light. The injury report and the
statement
of
injured
persons
also
indicated that on account of incident even
tempo of life was badly disturbed and
every person of the locality was having
sense of fear and insecurity in coming out
of his house. Therefore, the incident in
question coupled with the circumstances
and the manner in which it was
committed
in
order
to
show
highhandedness of the petitioners and to
create tension among the persons of
different community clearly indicated that
it affected public order and it was not
simply a question of law and order
problem.

25. It is not disputed that the
detention order can be passed against a
person who is detained in jail provided
the
detaining
authority
record
his
satisfaction that there is real possibility of
being the detenu released on bail and on
release on bail he would indulge in
similar
activities
prejudicial
to
the
maintenance of public order.

26. In the case of Smt. Shashi
Agarwal vs. State of U.P. and others,
1988 SCC (Cri) 178 it was held by the
Apex Court that every citizen has right to
move the Court for bail when he is
arrested under the ordinary law of the
land and he cannot be interdicted from
moving the court for bail clamping an
order of detention. The possibility of the
Court granting bail may not be sufficient.
Nor a bald statement that the person
would repeat his criminal activities would
be enough. There must also be a credible
information or cogent reasons apparent on
the record that the detenu, if enlarged on
bail, would act prejudicially to the interest
of public order.

27. In the case of Dharmendra
Sugan Chand Chelawat and another vs.
Union of India and others, (supra) the
Apex Court held as below:-

"The decisions referred to above lead
to the conclusion that an order for
detention can be validly passed against a
person in custody and for that purpose it
is necessary that the grounds of detention
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616 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
must show that (i) the detaining authority
was aware of the fact that the detenu is
already in detention; and (ii) there were
compelling
reasons
justifying
such
detention despite the fact that the detenu
is already in detention. The expression
"compelling reasons" in the context of
making an order for detention of a person
already in custody implies that there must
be cogent material before the detaining
authority on the basis of which it may be
satisfied that (a) the detenue is likely to be
released from custody in the near future
and (b) taking into account the nature of
the antecedents activities of the detenue, it
is likely that after his release from
custody he would indulge in prejudicial
activities and it is necessary to detain him
in order to prevent him from engaging in
such activities."

28. In the case of Surya Prakash
Sharma vs. State of U.P. and others,
(supra) relying on the principles laid
down in Rameshwar Shah vs. District
Magistrate, Burdwan, AIR 1964 SC, 334
and Dharmendra Suganchand Chelawat
and another v. Union of India and others,
AIR 1990 SC, 1196 the Apex Court held
as below:-

"The decisions referred to above lead
to the conclusion that an order for
detention can be validly passed against a
person in custody and for that purpose it
is necessary that the grounds of detention
must show that (i) the detaining authority
was aware of the fact that the detenu is
already in detention; and (ii) there were
compelling
reasons
justifying
such
detention despite the fact that the detenu
is already in detention."

29. In the case of Smt. Kamrunnisa
vs. Union of India, AIR 1991 SC, 1640
the Apex Court held as below:-

"From the catena of decisions
referred to above it seems clear to us that
even in the case of a person in custody a
detention order can validly by 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 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 authority was to oppose the bail
and if bail is granted notwithstanding such
opposition to question if before a higher
court.

30. In the light of above decisions
we would consider whether the detaining
authority was justified in passing the
detention order while the petitioners were
in jail.

The detaining authority has recorded
his satisfaction in the grounds of detention
as below:

"At present you along with your
associates are detained in District Jail,
Rampur in connection with case crime no.
1571 of 2002 under Sections 147, 148,
149, 307 IPC and 25 Arms Act. The bail
application was moved by you in the
Court on 28.11.2002 and there is
possibility of allowing it. In case you are
released on bail in the above crime, you
would
indulge
in
similar
criminal
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617
activities and would affect the public
order of the locality."

31.

Therefore,
the
District
Magistrate had recorded satisfaction that
detenu at the time of passing of order was
detained in jail and had moved bail
application on 28.11.2002 and there was
real possibility of being him released on
bail. The question which remains for
determination is whether there was cogent
material and compelling necessity for
recording satisfaction by the detaining
authority that on release on bail, the
petitioners would indulge in similar
activities prejudicial to maintenance of
public order.

32. As mentioned above, the
incident in question was not the sole
incident, which was committed by the
Petitioners. According to report of Local
Intelligence Unit and other materials on
record, the petitioners were of criminal
mentality and on the occasion of Holi
they also attacked on Sikh Community.
On account of their terror nobody could
dare to lodge report against them and they
were in habit of committing crimes
affecting the maintenance of public order.
No doubt, the incident, which took place
on Holi had no live link and nexus with
the detention order, but it shows the
tendency of the petitioners in indulging
the acts prejudicial to the maintenance of
public order. Therefore, there were
sufficient materials before the Detaining
Authority to record his satisfaction that
petitioners if released on bail would
indulge in similar activities prejudicial to
the
maintenance
of
public
order.
Therefore, the detention order is not
invalid on this count.

Point No. 4

33. For determining delay we have
to consider each case separately.

(1) Habeas Corpus Writ Petition No.
4839 Sachin @ Banti vs. State. In this
petition, according to the counter-affidavit
of Sri Amar Pal, Deputy Jailor, District
Jail
Rampur,
the
petitioner
Banti
submitted
his
representation
on
26.12.2002, which was sent to District
Magistrate, Rampur on same day. The
District Magistrate rejected it on same
day, information regarding it was received
in the jail on 28.12.2002 and the detenu
was communicated about rejection on
same day i.e. 28.12.2002.

34. The counter affidavit of Sri S.K.
Verma,
District
Magistrate,
Rampur
shows that the representation of the
petitioner dated 26.12.2002 was received
by him on same day and was rejected on
same day. The other copies of the
representation
were
sent
to
State
Government
as
well
as
Central
Government through special messenger
well within time.

35. Counter affidavit of Sri C.P.
Singh, Deputy Secretary, Home and
Confidential, Department, U.P. Civil
Secretariat shows that the representation
of the petitioner dated 26.12.2002 was
received in the concerned section of the
State Government on 28.12.2002. The
State Government sent the copies of the
representation and parawise comments
thereon to U.P. Advisory Board, vide its
letter dated 30.12.2002 and to Central
Government by letter dated 30.12.2002.
Thereafter, the concerned section of the
State
Government
examined
the
representation and submitted a detailed
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618 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
note on 30.12.2002 and Deputy Secretary
examined it on 30.12.2002 and special
secretary examined it on 30.12.2002 and
thereafter, it was submitted to Secretary,
who
examined
it
and rejected
on
31.12.2002.

36. The counter affidavit of Sri
Ramesh
Kumar,
Under
Secretary,
Ministry of Home Affairs, Government of
India stated that the representation of the
petitioner dated 26.12.2002 was received
by the Central Government on 6.1.2002
and on concerned desk of Ministry of
Home
Affairs
on
7.1.2002.
The
representation was immediately processed
for consideration and case of detenu was
put up before the Under Secretary on
14.1.2002.
The
Under
Secretary
considered it on 14.1.2002 and submitted
before Director, Ministry of Home Affairs
on 14.1.2003. The Director considered the
same and sent to Joint Secretary, Ministry
of Home Affairs on 14.1.2003. The Union
Home Minister considered on 14.1.2002
and finally rejected on 17.1.2002. It also
disclosed that 11 and 12 January, 2003
were holidays. This shows that there was
no delay in deciding the representation of
detenu by District Magistrate State
Government and Central Government.

(2) Habeas Corpus Writ Petition No. 4840
of 2003 Vinod vs. State of U.P. and
others.

Counter affidavit of Sri Amar Pal,
Deputy Jailor shows that the petitioner
submitted his representation on 4.1.2003
and the same was submitted to District
Magistrate on same day i.e. 4.1.2003. The
District
Magistrate
decided
the
representation
on
same
day
and
communicated to the jail Authorities on
6.1.2003 and detenu was accordingly
informed on 6.1.2002.

37. Counter affidavit of Sri Surendra
Kumar
Verma,
District
Magistrate,
Rampur shows that representation of the
petitioner dated 4.1.2003 was considered
by him on same day and was rejected by
him on same day. The remaining copies
of representation along with parawise
comments were sent to State Government
through special messenger on same day
i.e. 4.1.2002.

38. Counter affidavit of Sri C.P.
Singh, Deputy Secretary, Home and
Confidential
Department
U.P.
Civil
Secretariat,
Lucknow
disclosed
that
representation of the petitioner dated
4.1.2003 was received in the concerned
section of State Government on 6.1.2003.
The State Government sent copies of the
representation and parawise comments
thereon to the U.P. Advisory Board, vide
letter dated 7.1.2003 and to the Central
Government vide letter dated 7.1.2003.
He examined the representation on
8.1.2003, the Special Secretary examined
it on 8.1.2003 and thereafter submitted to
the Secretary, who examined it on
8.1.2003 and submitted to the Higher
Authorities for final order of the State
Government. After due consideration, the
said representation was finally rejected by
State Government on 9.1.2003.

The counter affidavit of Sri Ramesh
Kumar, Under Secretary, Ministry of
Home Affairs, Government of India
disclosed that representation of the
petitioner dated 4.1.2003 was received by
the Central Government on 9.1.2003. It
was processed for consideration and was
put up before Under Secretary on
13.1.2003 as 11 and 12.1.2003 were
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619
holidays. The Under Secretary considered
it on 14.1.2003. The Director considered
it on 14.1.2003, the Joint Secretary
considered it on 14.1.2003 and Union
Home Secretary on 17.1.2003 and finally
rejected it on 17.1.2003.

39. It indicates that there was no
delay in deciding representation by
District Magistrate, State Government and
Central Government. Thus, there was no
delay in deciding the representation of the
petitioner.

(3) Habeas Corpus Writ Petition No. 4842
Ramesh vs. State of U.P.

Counter affidavit of Sri Amar Pal,
Deputy Jailor, Rampur shows that the
petitioner submitted his representation on
4.1.2003, which was sent to District
Magistrate on same day. The District
Magistrate rejected it on same day and
communicated on 6.1.2003. The detenu
was informed about this rejection by
District Magistrate on 6.1.2003.

40.