# Sanchit Gupta v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 812
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-18
- **Bench:** Bala Krishna Narayana, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanchit-gupta-v-state-of-u-p-ors-43943
- **Pages:** 6

## Headnote

National Security Act, 1980 - Section 3(2) - Preventive detention -
5 All. Sanchit Gupta Vs State Of U.P. & Ors.

813
Detenu already in judicial custody - Requirement of cogent material,Habeas Corpus preventive detention
order passed against a person already in jail must disclose the detaining authority's awareness of such
custody and must be Supported by reliable and cogent material showing a real possibility of release on bail
and likelihood of indulging in activities prejudicial to public order upon such release,Mere pendency or
possibility of bail and a bald assertion that the detenu would repeat criminal activities is insufficient.Absence
of material indicating proximate past conduct or rational nexus between alleged activities and disturbance of
public order amounts to
Non-application of mind. Detention order liable to be quashed.Habeas corpus petition allowed and detenu
directed to be released Forthwith.

Held: Para-

Case Law discussed:
Rameshwar Shaw v. District Magistrate, Burdwan & Anr. - AIR 1964 SC 334
Shashi Agarwal v. State of U.P. & Ors. - (1988) 1 SCC 436
Poonam Lata v. M. L. Wadhawan - (1987) 4 SCC 48
Ramesh Yadav v. District Magistrate, Etah & Ors. - (1985) 4 SCC 232
Binod Singh v. District Magistrate, Dhanbad - (1986) 4 SCC 416,

## Text

812 INDIAN LAW REPORTS ALLAHABAD SERIES
 40. So far as the challenge to the notice dated 10.3.2016 is concerned, the respondents
have contended that they have exercised their powers of terminating the petitioners by invoking
regulation 34, as there was no work available. Though petitioners dispute this fact and contend that
work continued to remain available, but it has not been shown that any other person was engaged
by the society in place of the petitioners. Whether work is available or not is essentially a question
of fact to be determined by the employer. If the employer comes to a conclusion that no work is
available and petitioners are paid-off, which decision is not shown to be discriminatory or arbitrary,
no exception can be taken to it. The contention advanced that work is actually available with the
society and petitioners were illegally terminated under regulation 34, would otherwise require
factual ascertainment of need of work with the society, which need not be entertained by this Court,
at the first instance. Petitioners can always agitate such factual issues either before the authorities
constituted in terms of the Regulations of 1975 or before the Registrar under section 70 of the U.P.
Cooperative Societies Act, 1965. In case a week's notice is not given before invoking regulation 34,
the petitioners would be entitled to salary in lieu thereof.

41. In view of the discussions, aforesaid, the writ petition succeeds and is allowed, in part.
Petitioners are held entitled to automatic reinstatement at the start of crushing season i.e. 1st
October, 2015, and to continue till termination of their seasonal employment in terms of regulation
34 of the Regulations of 1975, by giving a week's notice or salary in lieu thereof. Petitioners shall
be entitled to salary for the period between 1st October, 2015 till the date of actual engagement in
the crushing season 2015-2016.

42. No order is passed as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE SHASHI KANT, J.

Habeas Corpus Writ Petition No.- 61843 Of 2015

Sanchit Gupta ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Swetashwa Agarwal

Counsel for the Respondents:
Deepak Mishra, AGA

National Security Act, 1980 - Section 3(2) - Preventive detention -
5 All. Sanchit Gupta Vs State Of U.P. & Ors.

813
Detenu already in judicial custody - Requirement of cogent material,Habeas Corpus preventive detention
order passed against a person already in jail must disclose the detaining authority's awareness of such
custody and must be Supported by reliable and cogent material showing a real possibility of release on bail
and likelihood of indulging in activities prejudicial to public order upon such release,Mere pendency or
possibility of bail and a bald assertion that the detenu would repeat criminal activities is insufficient.Absence
of material indicating proximate past conduct or rational nexus between alleged activities and disturbance of
public order amounts to
Non-application of mind. Detention order liable to be quashed.Habeas corpus petition allowed and detenu
directed to be released Forthwith.

Held: Para-

Case Law discussed:
Rameshwar Shaw v. District Magistrate, Burdwan & Anr. - AIR 1964 SC 334
Shashi Agarwal v. State of U.P. & Ors. - (1988) 1 SCC 436
Poonam Lata v. M. L. Wadhawan - (1987) 4 SCC 48
Ramesh Yadav v. District Magistrate, Etah & Ors. - (1985) 4 SCC 232
Binod Singh v. District Magistrate, Dhanbad - (1986) 4 SCC 416,

(Delivered by Hon'ble Bala Krishna Narayana, J.
&
Hon'ble Shashi Kant, J.)

1. Heard Sri Swetashwa Agarwal, learned counsel for the petitioner, Sri Deepak Mishra,
learned counsel for the Union of India and learned AGA for the State.

2. This habeas corpus writ petition has been filed by the petitioner Sanchit Gupta with a
prayer to issue a writ order or direction in the nature of certiorari quashing the detention order dated
20.08.2015 (Annexure-4 to the writ petition) passed by the District Magistrate, Meerut respondent
no.2 in the exercise of his power under Section 3(2) of the National Security Act 1980 (hereinafter
after referred to as NSA) and to release the petitioner forthwith.

3. Counter and rejoinder affidavits have been exchanged between the parties and with the
consent of the learned counsel for the parties, this writ petition is being finally disposed of at this
stage.

4. Briefly stated the facts of this case are that while S.I. Vinay Kumar, Constables Lakhal
Lal and Ram Chail Rathi of P.S. T.P.Nagar, District Meerut had gone to the house of Smt. Sonia
Rana in connection with the investigation of NCR No. 119 of 2015 which was registered P.S.
T.P.Nagar, on the basis report made by aforesaid Smt. Sonia Rana on 22.06.2015 alleging therein
that the petitioner along with his accomplices Rahul Bania and one unknown person had come to
her house on 22.06.2015 at about 12.00 p.m. and after abusing her and damaging her property by
driving his Swift car bearing registration DLCAA2175 rashly had left her house threatening her
entire family with dire consequences and had thereafter gone to the house of her acquaintance
Jamuna Prasad, resident of Uttam Nagar, Meerut and after abusing him had left his house
814 INDIAN LAW REPORTS ALLAHABAD SERIES
threatening to shoot Nakul and Golu at sight. While the aforesaid S.I. Vinay Kumar was making
inquiry from Smt. Sonia Rana, he received an information at about 7.00 p.m. that the petitioner and
his accomplices Nipanshu Gupta, Raj Kumar @Raju,Sumit,Rahul, Monu, Kamal, Golu and Bhokar
and about 10-12 unknown persons who were all armed with pistols, iron rods, lathi, danda and
hockey sticks had forcibly entered into the house of Jamuna Prasad and were hurling abuses at him
and there was a serious apprehension of breach of peace. On receiving the aforesaid information
S.I.Vinay Kumar along with constables Lakhan Lal and Ram Chail Rathi reached the house of the
Jamuna Prasad and tried to pacify the petitioner and his companions and requested them to stop
abusing Jamuna Prasad but the petitioner instead of listening to him fired at the members of the
police force with his gun with the intention of killing them but fortunately no-one received any
firearm injury in the incident but S.I.Vinay Kumar received a serious head injury as a result of
being assaulted by petitioner's accomplice Nipanshu Gupta with his hockey sticks and fell
unconscious on the ground. The injured Inspector Vinay Kumar was taken to the K.M.C. Hospital
and Research Centre by constables Lakhan Lal and Ram Chail Rathi. As a result of the aforesaid
incident, there was stampede on the road and public order was totally distrubed in the nearby areas.
On the basis of the FIR of the aforesaid incident lodged by Constable 995 Lakhal Lal case crime
no. 337 of 2015, under Sections 147, 148, 149, 452, 307, 332, 353, 323, 504, 506 IPC and Section
7 Crl. Law Amendment Act was registered against the petitioner and other accused at P.S.
T.P.Nagar. The petitioner surrendered before the concerned magistrate on 10.07.2015 and was sent
to District Jail, Meerut. While the petitioner was in District Jail, Meerut he was served with the
impugned detention order dated 20.08.2015. The petitioner submitted a representation before the
Jail Superintendent, District Jail Meerut on 27.08.2015 ( Annexure-10 to the writ petition) against
the detention order dated 20.08.2015. The representation made by the petitioner before the
respondent no.4, Union of India was rejected by order dated 15.09.2015 (Annexure- 11 to the writ
petition) which was communicated to the petitioner through Superintendent District Jail, Meerut by
wireless message. The respondent no. 2 Secretary Home and Confidential, U.P.Govt., Lucknow on
the basis of the report of the Advisory Committee confirmed the detention order dated 20.08.2015
for a period of 12 months from the date of its passing.

5. Learned counsel for the petitioner submitted that a valid detention order should reflect
that the authority was aware that the detenu was already in prison under judicial custody and there
was reliable material before him on the basis of which he had reason to believe that there was every
possibility of the detenu being released on bail and in case of such release the detenu would indulge
in prejudicial activities and in order to prevent him from indulging in any activities affecting the
public order or the tranquillity of the community, it was imperative to pass an order for his
preventive detention and unless the aforesaid satisfaction is recorded, the application of mind by
the detaining authority cannot be proved and testing the impugned order on the aforesaid principle,
the impugned order appears to suffer from vice of complete non application of mind.

6. Learned counsel for the petitioner next submitted that since on the date of the passing of
the detention order, the petitioner was already in jail and mere possibility of his released on bail
was not enough for preventive detention unless there was material before the respondent no.2
justifying the apprehension that detenu would indulge in prejudicial activities in case of his release
5 All. Sanchit Gupta Vs State Of U.P. & Ors.

815
on bail. He next submitted that although the detenting authority has in the grounds of detention recorded his
satisfaction that the petitioner who was in jail on account of his being accused in case crime no. 337 of 2015,
under Sections 147, 148, 149, 452, 307, 332, 353, 323, 504, 506 IPC and Section 7 Crl. Law Amendment
Act, had moved a bail application before the Sessions Judge and there was strong possibility of his being
released on bail and in the eventuality of his being released on bail he would again indulge in similar
activities prejudicial to the public order but in the instant case there was no material made apparent on record
that the detenu if released on bail was likely to indulge in activities prejudicial to the maintainance of public
order and hence the iumpugned detention order cannot sustained and is liable to be set aside. In support of his
aforesaid submissions, learned counsel for the petitioner has placed reliance on Shashi Aggarwal Vs. State
of U.P. and others reported in 1988 (1) SCC 436 and Rameshwar Shaw Vs. District Magistrate,
Burdwan & another reported in AIR 1964 SC 334.

7. Per contra learned AGA submitted that the impugned detention order does not suffer from any
illegality or infirmity requiring any interference by this Court. He further submitted that there was sufficient
material before the respondent no.2 justifying his belief that in case the detenu was released on bail, he would
again indulge in activities disturbing the public order.

8. We have very carefully scanned the impugned order and the grounds of detention and also the
counter affidavits filed on behalf of the respondent nos. 1 to 4 in this writ petition and we are constrained to
observe that no material justifying the apprehension that detenue would indulge in prejudicial activities in
case of his being released on bail was placed before the respondent no.2. In our opinion the bald statement
made in the grounds of detention that the petitioner upon being released on bail would repeat his criminal
activities prejudicially affecting the maintainance of public order, was not enough to justify passing of an
order of preventive detention against him. We stand fortified in our view by the law laid down by the Apex
Court in the case of Rameshwar Shaw (supra) and Shahshi Agarwal (supra).

9. The Hon'ble Apex Court in paragraphs 9 and 10 of its judgement rendered in the case of
Rameshwar Shaw (supra) has observed as hereunder :-

"9. It is also true that in deciding the question as to whether it is necessary to detain a
person, the authority has to be satisfied that if the said person is not detained, he may act in a prejudicial
manner, and this conclusion can be reasonably reached by the authority generally in the light of the
evidence about the past prejudicial activities of the said person. When evidence is placed before the
authority in respect of such past conduct of the person, the authority has to examine the said evidence and
decide whether it is necessary to detain the said person in order to prevent him from acting in a prejudicial
manner. That is why this Court has held in Ujagar Singh v. The State of Punjab and jagjit Singh -v. The
State of Punjab(1) that the past conduct or antecedent history of a person can be taken into account in
making a detention order, and as a matter of fact, it is largely from prior events showing tendencies or
inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a
manner prejudicial to the maintenance of public order.

10. In this connection, it is, however, necessary to bear in mind that the past conduct or
antecedent history of the person on which the authority purports to act, should ordinarily be proximate in
point of time and should have a rational connection with the conclusion that the detention of the person is
816 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary. It would, for instance, be irrational to take into account the conduct of the person which took
plate ten years before the date of his detention and say that even though after the said incident took place
nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on the
strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary.
Inother words, where an authority is acting bona fide and considering the question as to whether a person
should be detained, he would naturally expect that evidence on which the said conclusion is ultimately
going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally
justifies the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We
ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about
the validity of the satisfaction of the authority will have to be considered on the facts of each case. The
detention of a person without a trial is a very serious encroachment on his personal freedom, and so, at
every stage, all questions in relation to the said detention must be carefully and solemnly considered"

10. Similarly the Apex Court in paragraphs 8, 9, and 10 of its judgment rendered in Smt. Shahsi
Agarwal (supra) which are being reproduced hereinbelow has held as hereunder :-

"8. The principles applicable in these types of preventive detention cases have been
explained in several decisions of this Court. All those cases have been considered in a recent decision in
Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows.

Section 3 of the National Security Act does not preclude the authority from making an
order of detention against a person while he is in custody or in jail, but the relevant facts in connection
with the making of the order would make all the difference in every case. The validity of the order of
detention has to be judged in every individual case on its own facts. There must be material apparently
disclosed to the detaining authority in each case that the person against whom an order of preventive
detention is being made is already under custody and yet for compelling reasons, his preventive detention
is necessary.

9. We will now refer to the two decisions which according to Mr. Yogeshwar Prasad are
not in tune with the ratio of the decision in Alijan Milan's case (supra). In Ramesh Yadav v. District
Magistrate Etah and Ors., [1985]4 SCC 232 at p. 234, this Court observed:

"On a reading of the grounds, particularly the paragraph which we have extracted above,
it is clear that the order of detention was passed as the detaining authority was apprehensive that in case
the detenu was released on bail he would again carry on his criminal activities in the area. If the
apprehension of the detaining authority was true, the bail application had to be opposed and in case bail
was granted, challenge against that order in the higher forum had to be raisec;. Merely on the ground
that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under
the National Security Act should not ordinarily be passed."

What was stressed in the above case is that an apprehension of the detaining authority that
the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to
detain a person under the National Security Act.
5 All. Dr. Vipul Shah Vs State Of U.P. & Ors.

817

10. Every citizen in this country has the right to have recourse to law. He has the right to
move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he
does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from
moving the court for bail by 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 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. That has been made
clear in Binod Singh v. District Magistrate Dhanbad, [1986] 4 SCC 416 at 421, where it was observed:

"A bald statement is merely an ipse dixit of the officer. If there were cogent materials for
thinking that the detenu might be released then these should have been made apparent. Etemal vigilance
on the part of the authority charged with both law and order and public order is the price which the
democracy in this country extracts from the public officials in order to protect the fundamental freedoms
of our citizens."

11. In the instant case, there was no material made apparent on record that the detenue, if released on
bail will indulge in activities prejudicial to the maintainance of public order. The detention order appears to
have been made merely on the ground that the petitioner who was in jail had moved an application for bail
and there was strong possibility of his being released bailed out. We do not think that the impugned order of
detention can be justified on that basis.

12. The habeas corpus writ petition succeeds and is allowed. The impugned detention order dated
20.08.2015 passed by District Magistrate, Meerut, respondent no.2 is hereby quashed.

13. The petitioner shall be forthwith releassed, if he is not wanted in any other case.

14. There shall however be no order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2016

BEFORE

THE HON'BLE SUDHIR KUMAR SAXENA, J.

U/S 482/378/407 No.- 1670 Of 2016

Dr. Vipul Shah ...Applicant
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Kapil Misra