# Saud Akhtar & Anr v. U.O.I. & Ors

- **Citation:** (2023) 2 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-03
- **Case number:** Habeas Corpus Writ Petition No. 472 of 2022
- **Bench:** Mahesh Chandra Tripathi, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saud-akhtar-anr-v-u-o-i-ors-49693
- **Pages:** 21

## Headnote

Criminal Law - Constitution of India,1950
- Article 21, 22(3)(B), 226, - Criminal
Procedure Code, 1973 - Sections 167 &
167(2)(C), - National Security Act, 1980 -
Sections 3(2) & 3(4) - Representation of
the People Act, 1950 - Sections 123(2) ,
123(3)
&
123(3)(A)
-
Indian
Penal
Code,1860 - Sections 34, 120(B), 147,
148, 149, 302 & 307 - Criminal Law
Amendment Act - Section - 7, - The UP
Gangsters
&
Anti
Social
Activities
(Prevention) Act, - Section - 3(1), -
Preventive Detention Act, 1950 - Sections
3(2), 123 (2), 123 (3) & 123 (3A), - Indian
Evidence Act, 1972: - Writ of Habeas Corpus
- against detention order - representation -
rejected - maintainability - lack of subjective
satisfaction of competent authority - Law and
order & Public order define - court finds that,
the detaining authority has merely mentioned in
grounds of detention that petitioner has filed his
bail application before Court and there was
possibility of petitioner indulging in similar
activities prejudicial to maintenance of public
order on his coming out of jail - she has not
recorded her satisfaction in the impugned order
- there was real possibility of his being released
on bail which omission in our opinion has totally
vitiated impugned order - hence, the detention
of detenu under provisions of Section 3 (2) of
NSA, 1980 is unsustainable - consequential
impugned orders are hereby quashed - Petition
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1011
allowed - directions issued accordingly. (Para -
36, 38, 39, 40)

Writ Petition Allowed. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,857 of 72,198. This is a partial read: ask again with offset=39857 for what follows._

1010 INDIAN LAW REPORTS ALLAHABAD SERIES
webhost the order passed earlier and to
take note of the fact that the order is
withdrawn."

3. The High Court should not
have exercised the power under Section
362 CrPC for a correction on merits.
However patently erroneous the earlier
order be, it can only be corrected in the
process known to law and not under
Section 362 CrPC. The whole purpose of
Section 362 CrPC is only to correct a
clerical or arithmetical error. What the
High Court sought to do in the impugned
order is not to correct a clerical or
arithmetical error; it sought to rehear the
matter on merits, since, according to the
learned Judge, the earlier order was
patently erroneous. That is impermissible
under law. Accordingly, we set aside the
impugned order dated 28-4-2017."

21. From the aforesaid discussion, it
is evident that the order of taking
cognizance is a final order and whether it is
erroneous order or not, can be looked into
by the superior court in appropriate
proceedings and not by the same court,
which has taken cognizance.

22. In view thereof, I am of the view
that the order under challenge in the present
revision does not suffer from any illegality
or error of jurisdiction or law. Learned
Magistrate has no power to review the
earlier
order
dated
16.1.2008
taking
cognizance and, therefore, I find no merit
in the present revision, which is hereby
dismissed.
----------
(2023) 2 ILRA 1010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2023

BEFORE
THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 472 of 2022

Saud Akhtar & Anr. ...Petitioners
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Malay Prasad. Sri Ramesh Chandra
Agrahari,Sr. Adv., Sri Madhu Shukla, Sri
Piyush Shukla, Ms. Saloni Mathur, Ms.
Tanya Makker

Counsel for the Respondents:
A.S.G.I., Sri Arvind Singh G.A.

Criminal Law - Constitution of India,1950
- Article 21, 22(3)(B), 226, - Criminal
Procedure Code, 1973 - Sections 167 &
167(2)(C), - National Security Act, 1980 -
Sections 3(2) & 3(4) - Representation of
the People Act, 1950 - Sections 123(2) ,
123(3)
&
123(3)(A)
-
Indian
Penal
Code,1860 - Sections 34, 120(B), 147,
148, 149, 302 & 307 - Criminal Law
Amendment Act - Section - 7, - The UP
Gangsters
&
Anti
Social
Activities
(Prevention) Act, - Section - 3(1), -
Preventive Detention Act, 1950 - Sections
3(2), 123 (2), 123 (3) & 123 (3A), - Indian
Evidence Act, 1972: - Writ of Habeas Corpus
- against detention order - representation -
rejected - maintainability - lack of subjective
satisfaction of competent authority - Law and
order & Public order define - court finds that,
the detaining authority has merely mentioned in
grounds of detention that petitioner has filed his
bail application before Court and there was
possibility of petitioner indulging in similar
activities prejudicial to maintenance of public
order on his coming out of jail - she has not
recorded her satisfaction in the impugned order
- there was real possibility of his being released
on bail which omission in our opinion has totally
vitiated impugned order - hence, the detention
of detenu under provisions of Section 3 (2) of
NSA, 1980 is unsustainable - consequential
impugned orders are hereby quashed - Petition
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1011
allowed - directions issued accordingly. (Para -
36, 38, 39, 40)

Writ Petition Allowed. (E-11)

List of Cases cited: -

1. Saud Akhtar Vs St. of U.P., (Crl. Misc. Bail
Application No. 31658/2021, decided on dated
15.2.2022),

2. Saud Akhtar Vs St. of U.P., Criminal Misc. Bail
Application No.10417 of 2022, order dated
30.3.2022,

3. Saud Akhtar & anr. Vs U.O.I. & ors., (SLP
(Crl.) No. 10091/2022, decided on dated
12.9.2022),

4. Quamarul Islam Vs S.K. Kanta & ors. (1994
(1) SCR 210),

5. Naval Kishore Sharma Vs St. of U.P. & anr.
(Matter U/A 227 No.6178 of 2022, decided on
30.9.2022),

6. Yumman Ongbi Lembi Leima Vs St. of
Manipur & ors. (Criminal Appeal No. 26/2012,
decided on 04.1.2012),

7. Abhayraj Gupta Vs Superintendent, Jail,
Bareilly (Habeas Corpus W. P. No. 362/2021,
decided on 23.12.2021),

8. Huidrom Konungjao Singh Vs St. of Manipur
& ors. (2012 Vol. 7 SCC 181),

9. Kanu Biswas Vs St. of W.B., AIR 1972 SC 1656,

10. Dr. Ram Manohar Lohia Vs St. of Bihar &
ors., (1966 (1) SCR 709,

11. Kishori Mohan Bera Vs The St. of W.B., 1972
(3) SCC 845,

12. Haradhan Saha & anr. Vs The St. of W.B. &
ors., (1975) 3 SCC 198,

13. Kamarunnissa Vs U.O.I. & anr., 1990 (27)
ACC 621 SC,

14. Dharmendra Suganchand Chelawat Vs
U.O.I., AIR 1990 SC 1196,
15. Arun Ghosh Vs St. of W.B., 1970 (3) SCR 288,

16. Rivadeneyta Ricardo Agustin Vs Government
of the National Capital Territory of Delhi & ors.,
1994 Supp. 1 SCC 597,

17. Vijay Narain Singh Vs St. of Bihar, (1984) 3 SCC 14,

18. Binod Singh Vs D.M., Dhanbad, (1986) 4
SCC 416,

19. S.K. Mabud Vs St. of Odisha & anr., Writ
Petition (Crl) No.82 of 2020, decided on
03.08.202,

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1.

Heard
Mr.
Malay
Prasad
alongwith Ms. Saloni Mathur and Ms.
Tanya Makker, learned counsel for the
petitioners; Sri Arvind Singh, learned
counsel for the Union of India and Sri
A.N. Mullah & Sri S.A. Murtaza, learned
A.G.A. for the State respondents.

2. Present Habeas Corpus Writ
Petition
under
Article
226
of
the
Constitution of India is preferred seeking
following reliefs:-

"I. Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 31.03.2022 passed
by respondent no.3 purportedly under
Section 3 (2) of National Security Act,
1980 (Annexure No.1).

II. Issue a writ, order or direction in
the nature of certiorari quashing the impugned
Notification
No.111/2/04/2022-C.X-6
Lucknow
dated
07.04.2022
issued
by
respondent no.2 in exercise of the power under
Section 3 (3) (4) of National Security Act,
1980 (Annexure No.2).

III. Issue a writ, order or
direction in the nature of certiorari
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
quashing the impugned order dated
11.04.2022 passed by respondent no.3, by
which
the
representation
of
the
petitioners has been rejected (Annexure
No.3).

IV. Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 20.05.2022 passed
by respondent No.5 (copy not provided to
the petitioner).

V. Issue writ, order or direction in
the nature of Habeas Corpus commanding
and directing the respondents concerned to
produce the petitioner no.1/detenue before
this Hon'ble Court and set petitioner no.1
detenue at liberty forthwith, who is under
illegal detention vide impugned detention
order dated 31.03.2022 under Section 3 (2)
of National Security Act, 1980 passed by
respondent no.3.

VI. Issue a writ, order or direction
to pay him compensation to be decided by
this Hon'ble Court for his illegal detention.

VII. Issue a writ, order or
direction which this Hon'ble Court may
deem fit and proper under the fact and
circumstances of the case.

VIII. Award the cost of the
petition to the petitioners."

3. It appears from the record that on
31.3.2022 the District Magistrate, Kanpur
Nagar has passed an order of detention
under Section 3 (2) of the National Security
Act, 19801. In passing the said detention
order, the District Magistrate felt satisfied
that since it was necessary to prevent the
petitioner no.1 from acting in any manner
prejudicial to the maintenance of public
order, the passing of the order under NSA,
1980 was imperative. She based her
satisfaction for invocation of proceedings
under NSA, 1980 on the following
grounds, which are reflected from the
record:-

(1) A first information report was
lodged on 20.06.2020 registered as Case
Crime No.425 of 2020 under Sections 147,
148, 149, 302/34 IPC & Section 7 of
Criminal Law Amendment Act at Police
Station Chakeri, District Kanpur Nagar by
the complainant Dharmendra Singh Sengar
with allegation that three years' ago the
petitioner no.1 Saud Akhtar and co-accused
Mohd. Asim @ Pappu made firing upon his
brother Pintu Sengar with an intention to
kill him, wherein his brother Pintu Sengar
escaped and in this regard, a case was
pending in the Court. Due to said previous
enmity, the accused-petitioner Saud Akhtar
alongwith
other
co-accused
hatched
conspiracy and called his brother for
compromise whereon on 20.06.2020 at
about 1:00 p.m. the complainant alongwith
his brother Pintu Sengar and driver Rupesh
were going to meet them by Innova Car but
in the way, the accused-petitioner and other
co-accused with common intention to kill
him, made indiscriminate firing upon his
brother due to which he received grievous
injuries and fell down. The complainant
and the driver by hiding saved themselves.
The complainant took his brother to the
hospital where he was declared dead. In
aforesaid Case Crime No.425 of 2020 after
investigation
the
investigating
officer
submitted charge sheet dated 20.11.2020
against the petitioner under Sections 147,
148, 149, 302, 307, 34, 120B IPC &
Section 7 of Criminal Law Amendment
Act. It is further averred that the print
media and electronic media highlighted the
said incident in their news reports in the
newspapers for so many days. The
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1013
postmortem report; the statement of the
informant; statement of driver of the
deceased and the statement of the family
members of the deceased are referred and a
supplementary charge sheet No.605-A
dated 20.11.2020 has also been filed
against the petitioner no.1/detenue with the
added Section 120B IPC. In the said
criminal case the petitioner no.1 has been
granted bail by learned Single Judge of this
Court vide order dated 15.2.2022 passed in
Criminal Misc. Bail Application No.31658
of 2021 (Saud Akhtar vs. State of UP).

(2) The grounds of detention also
refers a subsequent FIR dated 06.3.2021
lodged by the police under Section 3 (1) of
U.P. Gangsters & Anti Social Activities
(Prevention) Act, 1986 registered as Case
Crime No.212 of 2021 at Police Station
Chakeri, District Kanpur Nagar and after
investigation the charge sheet has been
filed in the said case. The details of 34
criminal cases are also mentioned in the
grounds of detention in caption of criminal
history. There was immense possibility of
release of the petitioner no.1 as his bail
application in Case Crime No.212 of 2021
was pending before this Court. Ultimately,
in the said Case the petitioner has been
accorded bail by this Court vide order dated
30.3.2022 passed in Criminal Misc. Bail
Application No.10417 of 2022 (Saud
Akhtar vs. State of U.P.).

(3) Meanwhile, the concerned
Station House Officer submitted a report
dated
30.3.2022
to
the
Assistant
Commissioner of Police for initiating
proceedings against the petitioner under
NSA, 1980. The Assistant Commissioner
of Police forwarded the same to the Deputy
Commissioner of Police on 31.3.2022. It
was further forwarded to the Commissioner
of Police, Kanpur Nagar and on the same
day, the Commissioner of Police has sent
his report to the District Magistrate, Kanpur
Nagar. After going through the entire
material available on record the District
Magistrate was satisfied that the petitioner
no.1 should be detained so that he may be
prevented from acting in any manner
prejudicial to the maintenance of public
order, breach of which is rather imminent
and consequently, he has passed the
impugned detention order on 31.3.2022. In
the grounds of detention, the District
Magistrate has also referred a beat
information of the Mobile Constables
regarding release of the petitioner on bail
and to repeat the offences disturbing the
public order. It has been finally concluded
by the District Magistrate in the grounds of
detention after considering the column of
criminal history also that it is necessary to
pass the detention order against the
petitioner.

4. The petitioner no.1 was confined in
the District Jail, Kanpur Nagar since
20.10.2020 after his arrest in pursuance of
the FIR dated 20.5.2020. The detention
order dated 31.3.2022 alongwith grounds of
the detention and other relevant materials
were served to the petitioner on the same
day through the jail authorities to afford
him opportunity for making an effective
representation.
The
detention
order
alognwith grounds of detention was sent to
the State Government on 01.4.2022 through
special messenger. Finally, the State
Government vide order dated 07.4.2022
granted approval to the detention order.
The petitioner no.1 made representations
dated 04/08.04.2022 for being forwarded to
the Advisory Board, State Government as
also to the Central Government. However,
there was an intervening period of two days
on 09.4.2022 and 10.4.2022 being second
Saturday and Sunday and therefore, the
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
District
Magistrate
has
rejected
the
representation
on
11.4.2022.
It
was
communicated to the petitioner on the same
day through jail authorities. The rejection
of
the
representation
was
also
communicated to the State Government &
Central Government on 11.4.2022 through
special messenger. Having received the
comments,
the
State
Government
forwarded the report on his representation
to the Central Government. The State
Government has rejected the representation
of the petitioner on 26.4.2022 and the
Central
Government
rejected
his
representation on 27.4.2022. Both the
rejection orders were also communicated to
the petitioner through jail authorities on the
same day. The Advisory Board also heard
the petitioner on 09.5.2022. After receiving
report of the Advisory Board, the said
detention order was confirmed by the State
Government vide order dated 20.5.2022
initially for a period of three months from
the date of detention i.e. 31.3.2022, which
has been challenged in the petition.

5. Feeling aggrieved by the aforesaid, the
detenue/petitioner has filed the instant habeas
corpus petition through his next friend/son
Nawaz Akhtar (petitioner no.2) with the prayer,
as mentioned in paragraph-2 herein-above.
During pendency of the instant habeas corpus
petition, the State Government vide order dated
14.6.2022, extended the period of detention for
a further period of three months and then on
22.9.2022 the State Government extended the
period of detention for nine months from the
date of detention i.e. 31.3.2022, but it transpires
from the record that the extension orders dated
14.6.2022 and 22.9.2022 have not been
challenged by the detenue/petitioner in the
instant habeas corpus petition.

6. This petition was initially presented
in this Court on 01.7.2022 when the
opposite parties were granted time to file
counter affidavit. The State Government,
the
District
Magistrate
and
the
Superintendent of District Jail have done
so. Rejoinder affidavit has also been filed
by the petitioner on 09.9.2022. Thereafter,
the matter was taken up on 12.9.2022 and
on the said date, it was directed to be listed
on 21.9.2022. Meanwhile, the petitioner
had filed Special Leave to Appeal (Crl.)
No(s).10091/2022 (Saud Akhtar & another
vs. Union of India & ors) arising out of the
order passed by this Court dated 12.9.2022
and Hon'ble Supreme Court vide order
dated 14.11.2022 has proceeded to dispose
of
the
said
SLP
with
following
observations:-

"1. While considering Habeas
Corpus Writ Petition No.472 of 2022, a
Division Bench of the High Court of
Judicature at Allahabad, by its order dated
12 September 2022, directed that the
proceedings should be listed on 21
September 2022. The Special Leave
Petition before this Court was instituted on
14 October, 2022. Ordinarily, we would not
have entertained the Special Leave Petition
having regard to the fact that the Habeas
Corpus Petition was only directed to stand
over by a period of ten days. However, Mr.
Sidharth Luthra, senior counsel appearing
on behalf of the petitioners, with Mr. Rohit
Amit Sthalekar, submits that thereafter the
petition
has
been
adjourned
on
21
September 2022, 28 September 2022, 12
October 2022, 19 October 2022, 2
November 2022 and 14 November 2022
and has not been taken up for hearing.

2. Having due regard to the fact
that the petition seeks to challenge an order
of detention passed under Section 3 (2) of
the National Security Act, 1980, we request
the High Court to take up the petition with
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1015
all reasonable dispatch and make an
endeavour to dispose it of expeditiously,
preferably within a period of two months
from the date of receipt of a certified copy
of this order.

3. Subject to the aforesaid, the
Special Leave Petition is disposed of.

4. Pending application, if any,
stands disposed of."

7. In this backdrop, learned counsel
for the petitioner vehemently submitted that
in this writ petition, the validity of the
detention of the petitioner no.1 has been
challenged. The petitioner no.1 has been
detained by the District Magistrate, Kanpur
Nagar by an order dated 31.3.2022
(Annexure No.1 to the writ petition) made
under Section 3 (2) of the NSA, 1980. The
State
Government
vide
order
dated
07.4.2022 after receipt of the opinion of the
Advisory Board has approved the detention
order as required under Section 3 (4) of the
NSA, 1980. The grounds of detention
contain a recital that aforesaid incident had
resulted in spread of fear and terror
amongst general public of District Kanpur
Nagar. The public order and the tempo of
life was totally disturbed. The aforesaid
incidents were given wide coverage by the
media in various national and local level
newspapers. A person already arrested can
still be detained under the NSA Act, but for
exercising that power, the authorities have
to
fulfill
certain
requirements.
The
necessary ingredients for recording a valid
"subjective satisfaction" of Competent
Authority is absent in the impugned order
dated 31.3.2022.

8. Learned counsel for the petitioner
contended that as per Section 3 (2) of NSA,
1980 an order of detention can be passed
with the view to prevent a person from
acting in any manner prejudicial to the
security of the State or to the maintenance
of the Public Order. The present case
mainly
falls
under
the
category
of
disturbance to "law and order" and not
"public order". Public Order was said to
embrace 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. The 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.
Therefore, the question, whether a man has
committed a breach of law and order or has
acted in a manner likely to cause a
disturbance of the public order, is a
question of degree and the extent of the
reach of the act upon the society.

9. It is submitted that in the instant
case the alleged acts of assault by firearms
are directed against the individual and are
not subversive of Public Order. Therefore,
the detention order on the ostensible
ground of preventing him in any manner
prejudicial to the public order was not
justified. It is an act infringing law and
order and the reach and effect of the act is
not so extensive as to affect a considerable
member of the Society. In other words, the
alleged act of the petitioner does not disturb
the public tranquility nor does it create any
terror or panic in the minds of the people of
the locality nor does it affect the even
tempo of the life of the community. This
criminal
act
emanates
from
alleged
personal animosity between the detenus
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
and the complainant and therefore, such an
act cannot be the basis for subjective
satisfaction of the detaining authority to
pass an order of detention on the ground
that the act purports to public order i.e., the
even tempo of the life of the community
which is the sole basis of the clamping the
order of detention.

10. It is contended that in the present
case, the allegation against the petitioner is
that he hired professional shooters to
execute the murder of the deceased namely
Pintu Sengar in broad day-light at J.K.
Colony, Kanpur. The incident is said to
have disrupted the public tranquility which
has been conveyed as the major ground for
the detention of the petitioner. He has
placed reliance on the Naksha Nazri from
the case diary of the said case, which is
appended as Annexure SA-1 to the
supplementary
affidavit,
wherein
the
incident took place not in a very densely
populated area so as to disturb or affect
public at large. The spot of incident is
merely surrounded by empty plots at both
ends and there is only one general store at a
distance of 50 meters from the spot of the
incident. Many people were not present at
the spot of the incident. The CCTV footage
of the incident, which was recovered during
the course of the investigation, does not
identify the petitioner as an assailant.
Infact, the presence of the petitioner has
also not been captured in the CCTV
footage.

11. It is further submitted that the
detention order is passed without there
being any cogent material. A stale incident
of 2020 became the reason for passing the
order of detention. In the said case, the
petitioner has already been accorded bail
by this Court vide order dated 15.2.2022.
The past record must have a live and
proximate link with the reason of detention.
Otherwise, such stale material/case cannot
be a basis for passing the detention order.
In the present detention order, the media
clippings have been made as the sole proof
of disruption of public order and there are
no eye-witnesses to the incident on record.
As per Indian Evidence Act, 1972,
newspaper reports by themselves are not
evidence of the contents thereof. As such,
the District Magistrate, Kanpur Nagar has
not applied her mind to the facts of the case
and the material on record and she has
passed the impugned order in a routine
manner on the report submitted to her by
the
police
authorities.
The
detaining
authority
has
failed
to
record
any
satisfaction in the impugned order that
there was real possibility of the petitioner,
who was already in judicial custody, being
released on bail. Further the material before
the detaining authority was not sufficient to
satisfy her that after being released on bail
the petitioner shall again indulge in
activities prejudicial to the public order and
hence, the impugned order, which is per-se
illegal, may be set aside and the petitioner
be set at liberty forthwith. In support of his
submission, he has placed reliance on the
judgments of Apex Court in Quamarul
Islam vs. S.K. Kanta and ors 2 as well as
the judgment of this Court in Naval
Kishore Sharma vs. State of UP and
another3.

12. It is submitted that the detaining
authority did not apply its mind before
passing the order of detention and failed to
strike a balance between the constitutional
and the legal obligation charged on the
petitioner before passing the order and the
manner in which the power of detention has
been exercised. It does not appear to have
been exercised rationally. The District
Magistrate has placed reliance on the
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1017
criminal list of 34 cases out of which the
petitioner has been acquitted in 10 criminal
cases; final report has been submitted in 9
cases; 4 cases are not related to the
petitioner and proceeding of two criminal
cases have been quashed. Further the
District Magistrate has failed to create a
nexus between alleged offences and the
order of detention. The details of criminal
cases have been given in paragraph-36 of
the writ petition. It is submitted that
preventive detention is not to punish a
person for something he has done but to
prevent him from doing it. Therefore, since
the detention order has been passed on the
allegation of involvement of the detenu in a
number
of
criminal
cases
without
disclosing any material in the report of the
Superintendent of Police or materials
available before the detaining authority that
there is likely to be a breach of public
order, the detention order cannot be
sustained. In this regard, he has placed
reliance on the judgement of Apex Court in
Yumman Ongbi Lembi Leima vs. State
of Manipur & ors4 as well as the
judgment of Orissa High Court in S.K.
Mabud vs. State of Odisha and another5.
He further submitted that the incident took
place on 20.6.2020 and it is a stale incident,
which is not proximate to the time when
the
detention
order
was
passed
on
31.3.2022. After a long delay of about two
years, the invocation of the provisions of
NSA, 1980 was neither warranted nor
justified
and
the
delay
was
not
satisfactorily explained by the detaining
authority. He has placed reliance on the
judgment of this Court in Abhayraj Gupta
vs. Superintendent, Jail, Bareilly6.

13. Lastly, it is submitted that in Case
Crime No.425 of 2020 the petitioner has
been accorded bail by this Court vide order
dated 15.2.2022 passed in Criminal Misc.
Bail Application No.31658 of 2021, prior
to passing the detention order. The bail
application contained the grounds for bail
including the ground that he was falsely
implicated in the said case. The informant
was said to be an unreliable witness as he
changed
his
statements
on
several
occasions.
There
was
material
inconsistency in the prosecution version set
out in the FIR and the subsequent
statements given by the informant from
time to time before the investigating
officer. Some of the offenders named in the
FIR as principal offenders were not even
chargesheeted. The CCTV footage of the
incident on record does not show the
presence of the petitioner. The criminal
history
of
the
petitioner
was
duly
explained. There were sufficient materials
which could have reasonably influenced the
decision of the detaining authority but the
detaining authority has not considered
them. However, if the authorities were not
satisfied with the release of the petitioner
on bail, the same could have been
challenged before the higher Court. When
there was an option available to the
respondents then imposing of the detention
of the petitioner under NSA, 1980 was
unjust and violative of Article 21 of the
Constitution of India. It is submitted that if
the ordinary law of the land can deal with
the situation, then recourse to a preventive
detention law will be illegal.

14. Per contra, learned A.G.A. and
learned counsel for the Union of India
made their submissions in support of
impugned order and submitted that due to
the aforesaid incident, the public order and
tranquility of the locality was disturbed.
There was immense possibility of release
of the petitioner as his bail application in
Case Crime No.212 of 2021 was pending
before this Court, therefore, the Station
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
House Officer submitted his report dated
30.3.2022 to the Assistant Commissioner of
Police for initiating the proceedings against
the petitioner under NSA, 1980. The report
of Assistant Commissioner of Police shows
that the likelihood of involvement of
petitioner in similar acts was not ruled out.
This report became basis for passing of
detention order. After going through the
entire material available on record and the
report of the sponsoring authority, the
detaining
authority
has
passed
the
impugned order after being fully satisfied
on the basis of the material produced before
her that on being released on bail the
petitioner may again indulge in activities
prejudicial to the public order and the same
does not suffer from any illegality or
infirmity, hence the present habeas corpus
writ petition is liable to be dismissed.

15. It was submitted that the detention
order was communicated to the petitioner
and it was approved by State Government
on 07.4.2022 i.e. within statutory limit. As
per judgment of Apex Court in Konungjao
Singh vs. State of Manipur & Ors.7, the
petitioner was entitled to receive an
information regarding grounds of detention
and was further entitled to get an
opportunity to represent against it. Both the
requirements were taken care of and hence,
no interference is required by this Court. It
is submitted that the representations of the
petitioner dated 04.4.2022 and 08.4.2022
were duly considered and rejected by the
State Government and Central Government
on
26.4.2022
and
27.4.2022
and
accordingly,
the
detenu
alongwith
authorities concerned were informed.

16. After having very carefully
examined the submissions made by learned
counsel for the parties and perused the
impugned order as well as the other
material brought on record, we find that the
issue involved in this writ petition is that
whether
the
failure
of
the
District
Magistrate to record in the impugned order,
that there was strong possibility of the
petitioner, who was already in judicial
custody on account of his being accused in
Case Crime No.212 of 2021 of being
released on bail, has vitiated the impugned
order and whether the subsequent recording
of her satisfaction that on being released on
bail there was possibility of the petitioner
indulging in similar activities which were
prejudicial to the public order would
validate the impugned order.

17. In the instant case, it transpires
that the allegation against the Corpus was
that he hired professional shooters to
execute the murder of the deceased namely
Pintu Sengar in broad day-light at J.K.
Colony, Kanpur. The stand of Corpus is
that he has been falsely trapped and
implicated in Case Crime No.425 of 2020
in which he has been granted bail by this
Court vide order dated 15.2.2022 passed
Criminal Misc. Bail Application No.31658
of 2021. In subsequent Case Crime No.212
of 2021 under Section 3 (1) of U.P.
Gangsters
&
Anti
Social
Activities
(Prevention) Act, 1986 the corpus has also
been accorded bail by this Court vide order
dated 30.3.2022 passed in Criminal Misc.
Bail Application No.10417 of 2022.
Meanwhile, the concerned Station House
Officer
submitted
his
report
dated
30.3.2022 to the Assistant Commissioner of
Police for initiating the proceedings under
NSA, 1980 against the petitioner. Finally,
the District Magistrate has formed her
opinion on the basis of a media trial and
imposed the NSA, 1980 against the
petitioner on 31.3.2022. The detention
order refers an old case of the year 2020 in
which he has been accorded bail by this
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1019
Court on 15.2.2022. There is no live nexus
between the incident of 2020 and action for
which detention order is passed. The order
of detention indicated cases relating to law
and order situation and had nothing to do
with maintenance of public order and was
stale to be considered relevant for the
purpose of detention.

18. Section 3 (2) of NSA, 1980
contemplates that a citizen can be detailed
under the NSA - (i) for preventing him
from acting in any manner prejudicial to
the security of the State; (ii) for preventing
him from acting in any manner prejudicial
to the maintenance of public order; (iii) for
preventing him from acting in any manner
prejudicial to the maintenance of supplies
and services to the community. The
'explanation' to Section 3 (2) deals with
contingency (iii) only. The preventive law
can be invoked to prevent somebody from
acting in a manner prejudicial to the
security of State, public order or to
maintain supplies and services essential to
the communities. There was no material to
show that the alleged acts of the detenu
disturbed the even tempo of life. Since the
Corpus is facing a criminal case, we are not
inclined to give any finding on this aspect,
which may have a bearing on the trial. In
view of aforesaid three requirements, we
are only inclined to observe that there was
no material before the learned District
Magistrate to believe that the Corpus will
again indulge in similar activity of hiring
professional shooters.

19. We further find that there is no
indication in the detention order to the
effect that the detaining authority was
aware that the detenu was already in
custody and that she has reason to believe
on the basis of reliable material that there is
a possibility of his being released on bail
and that on being so released the detenu
would in all probabilities indulge in
prejudicial activities and for compelling
reasons a preventive detention order need
to be made. It is the settled position of law
that the authorities are not precluded from
passing an order of detention when the
person concerned is in jail, but while
passing the order of detention, they are
required to apply their mind to the fact that
the person concerned is already in jail and
there are compelling reasons justifying
such detention despite the fact that the
detenu was 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 the detenu is likely to
be released from custody in the near future
or taking into account the nature of the
antecedent activities of the detenu, it is
likely that after his release from custody he
would probably indulge in prejudicial
activities and it is necessary to detain him
in order to prevent him from engaging in
such activities.

20. The crucial issue is whether the
activities of the detenu were prejudicial to
public order. While the expression 'law and
order' is wider in scope inasmuch as
contravention of law always affects order.
'Public order' has a narrow ambit, and
public order could be affected by only such
contravention,
which
affects
the
community or the public at large. Public
order is the even tempo of life of the
community taking the country as a whole
or even a specified locality. The distinction
between the areas of 'law and order' and
'public order' is one of the degree and
extent of the reach of the act in question on
society. It is the potentiality of the act to
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
disturb the even tempo of life of the
community which makes it prejudicial to
the maintenance of the public order. If a
contravention in its effect is confined only
to a few individuals directly involved as
distinct from a wide spectrum of public, it
could raise problem of law and order only.
It is the length, magnitude and intensity of
the terror wave unleashed by a particular
eruption
of
disorder
that
helps
to
distinguish it as an act affecting 'public
order' from that concerning 'law and order'.
The test to be adopted in determining
whether an act affects law and order or
public order, is : Does it lead to disturbance
of the current life of the community so as to
amount to disturbance of the public order
or does it affect merely an individual
leaving the tranquility of the society
undisturbed? (Ref. Kanu Biswas Vs. State
of West Bengal8).

21. "Public order" is synonymous
with public safety and tranquility. Public
order if disturbed, must lead to public
disorder. Every breach of the peace does
not lead to public disorder. When two
drunkards quarrel and fight there is
disorder but not public disorder. They can
be dealt with under the powers to maintain
law and order but cannot be detained on the
ground that they were disturbing public
order. Disorder is no doubt prevented by
the maintenance of law and order also but
disorder is a broad spectrum, which
includes at one end small disturbances and
at the other the most serious and
cataclysmic happenings. (Ref. Dr. Ram
Manohar Lohia Vs. State of Bihar and
Ors.9).

22. 'Public Order', 'law and order' and
the 'security of the State' fictionally draw
three
concentric
circles,
the
largest
representing law and order, the next
representing public order and the smallest
representing security of the State. Every
infraction of law must necessarily affect
order, but an act affecting law and order
may not necessarily also affect the public
order. Likewise, an act may affect public
order, but not necessarily the security of the
State. The true test is not the kind, but the
potentiality of the act in question. One act
may affect only individuals while the other,
though of a similar kind, may have such an
impact that it would disturb the even tempo
of the life of the community. This does not
mean that there can be no overlapping, in
the sense that an act cannot fall under two
concepts at the same time. An act, for
instance, affecting public order may have
an impact that it would affect both public
order and the security of the State (Ref.
Kishori Mohan Bera Vs. The State of
West Bengal10.

23. Hon'ble Supreme Court in
paragraph 35 of its judgment rendered in
the case of Haradhan Saha & Another
vs The State Of West Bengal & Ors.11
observed that where the concerned person
is actually in jail custody at the time
when the order of detention is passed
against him, and is not likely to be
released for a fairly long time, it may be
possible to contend that there could be no
satisfaction on the part of the detaining
authority as to the likelihood of such a
person indulging in the activities which
would jeopardise the security of the State
or the public order.

24. Hon'ble Supreme Court has laid
down the principles as to when a detention
order can be passed with regard to a person
already in judicial custody in the case of
Kamarunnissa vs. Union of India and
another12 and in paragraph 13 of the
aforesaid case, Hon'ble Supreme Court has
held as hereunder :-
2 All. Saud Akhtar & Anr. Vs. U.O.I. & Ors.
1021

"13. 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 be passed(1) if
the authority passing the order is aware of
the fact that he is actually in custody; (2) if
he has reason to believe on the basis of
reliable material placed before him(a) that
there is real possibility of his being released
on bail, and (b) that on being so released he
would in all probability indulge in
prejudicial activity; and (3) if it is felt
essential to detain him to prevent him from
so doing. If the authority passes an order
after recording his satisfaction in his behalf,
such an order can not 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 of before a higher Court."

25. Another leading authority on the
same issue is the judgment of Apex Court
rendered
in
the
case
of
Huidrom
Konungjao Singh Vs. State of Manipur
(supra) wherein the Supreme Court has
held that while detaining a person, who was
already arrested, due care should be taken
as under:

"If the detention order, passed
against a person who is already in custody
in respect of criminal case is challenged the
detaining authority has to satisfy the Court
the following facts :

1. The authority was fully aware of
the fact that the detenue was actually in
custody.

2. There was reliable material
before the said authority on the basis of
which it could have reasons to believe that
there was real possibility of his release on
bail and further on being released he would
probably indulge in activities which are
prejudicial to public order.

3.