Ramzan Ali vs Adhikshak, Janpad Karagar, ...
2017 Latest Caselaw 7957 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 51
 

 
Case :- HABEAS CORPUS WRIT PETITION No. - 41444 of 2017
 

 
Petitioner :- Ramzan Ali
 
Respondent :- Adhikshak, Janpad Karagar, Shahjahanpur & 3 Others
 
Counsel for Petitioner :- Daya Shankar Mishra,Chandrakesh Mishra
 
Counsel for Respondent :- G.A.,A.S.G.I.,Dhurva Kant Chaturvedi
 

 
Hon'ble Vipin Sinha,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

This is a habeas corpus petition seeks to question the continued detention of the petitioner Ramzan Ali (hereinafter referred to as 'the detenue') under an order dated 14.06.2017 passed by the District Magistrate, Shahjahanpur (hereinafter referred to as the "Detaining Authority") under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as the 'Act'). The order dated 14.06.2017 shall hereinafter be referred to as the "detention order".

The detention order has its genesis in an incident that occurred on 12.04.2017 at 6.30 in the evening hours and was reported to the police by the victim one Sri Ankur Saini, Branch Manager, Bank of Baroda, Sindhauli Branch, Shahjahanpur, through a written first information report dated 12.04.2017 and registered by the police at 20:55 hours as case crime no. 740 of 2017, under Sections 147, 148, 149, 323, 307, 341, 353, 352, 427, 506 IPC, P.S. Sindhauli, District Shahjahanpur.

The occurrence that moved the sponsoring authority to recommend the petitioner's detention and finally the Detaining Authority to pass the detention order as per first information lodged by Ankur Saini is to the effect that the informant on 12.04.2017 after winding up all business of the day at his Branch left the bank premises for his home at 6.30 p.m. riding his motorcycle. As he travelled a distance of 1.5 Kilometers from Sindhauli to Shahjahanpur a white coloured Mahindra Bolero SUV overtook him and the driver signaled him to stop saying (words in Hindi Vernacular) **eSaustj lkgc jksdksA**. As soon as the informant pulled up his motorcycle to a halt on his side of the road, 4-5 men alighted from vehicle wielding sticks (Lathi and Danda) and a rifle. The man with the rifle fired upon the informant which was a close miss. His companions wielding the sticks showered Lathi blows on the informant. Thereafter the assailant opened indiscriminate fire. It is further said in the information that informant knew the assailant well. He is the husband of the sitting Pradhan of village Bhatpura Rasoolpur, Ramzan Khan (Pradhan Pati). In the meanwhile, other employees working with the informant in the Branch also arrived and passers by flocked at the scene of occurrence. At this point of time the assailants boarded their vehicle and escaped saying (in Hindi Vernacular) **fd iz/kku dk dke ugha djksxs rks ftUnk ugha cp ikvksxs** . The informant reported that in consequence of the assault two mobile phones owned by him were shattered and he was undergoing medical treatment for the injuries sustained at the District Hospital, Shahjahanpur. It was requested on the basis of the allegations hereinbefore detailed that a case be registered against the accused and they be brought to justice, particularly so, as they had assaulted a government servant obstructing him in the discharge of his duties by waylaying him while returning from his duties inasmuch as proceeding to his station of work and back home were part of his duty.

The petitioner who was wanted in connection with the crime above detailed surrendered in Court on 31.05.2017 and was remanded to judicial custody. He was lodged in the District Jail, Shahjahanpur when the detention order was served upon him along with the grounds of detention through the Jail Superintendent.

It appears that events of 14.06.2017 happened at almost lightening pace between the sponsoring authority at the various echelons of hierarchy and the Detaining Authority. The process was set in motion by a very copious report that depicts in graphic detail the incident of 12.04.2017 and its immediate impact in the locale submitted by S.H.O. P.S. Sindhauli, District Shahjahanpur to the higher police functionries. The report carries not only details of the incident and its impact but the statements of members of the public who had become chance witnesses as also those who were placed nearby in connection with their business/work or their ordinary place of residence. The report carries enumeration of the petitioners criminal history running into as many as 18 criminal cases with a summery of some of them that had in the past led to maintenance of the public order being adversely affected.

It is imperative to refer to the information regarding the incident leading to the detention order in some detail as reported by S.H.O. P.S. Sindhauli in his report dated 14.06.2017 sponsoring the petitioner's detention submitted to the S.P. Shahjahanpur. The S.H.O. has mentioned that the incident involved bank employees of which he had information at the station on 12.04.2017 through a police informer prior to registration of the first information report. The information received by the S.H.O. was to the effect that the Branch Manager, Bank of Baroda, Sindhauli Branch had been waylaid at the Puvayan-Shahjahanpur Road near village Paira by the petitioner Ramzan Ali who was a Goonda with a criminal background and that he along with his companions was beating up the Branch Manager as the information came in. It was also reported to the S.H.O. that on account of fear and terror that struck the general public who were working in the adjoining fields, they went into hiding. Employees of the electricity corporation who were in duty at the electricity Sub-Station located nearby abandoned duty and likewise went into hiding. The road was completely obstructed in consequence of the terror unleashed by Ramzan Ali against whom 9-10 cases of similar nature had already been registered but in none of which he had been arrested on account of his highhanded ways with the police also. Public order, according to the S.H.O, was completely shattered and to regain control of the situation additional force from the station was detailed to the place of occurrence. Record of the said incident finds mention in G.D. No.39 recorded at 19.20 hours on 12.04.2017, an extract of which was appended as Annexure-3 to the report submitted by the S.H.O.

The S.H.O. goes on to record in his report that post occurrence, information was received at the local police station that the petitioner Ramzan Ali who is husband of the Pradhan (Pradhan Pati) of village Bhatpura Rasoolpur is a Goonda and that on account of his fear and terror natives of his village and others nereby cannot muster courage to speak up; that after assaulting the Bank Manager he went back to his native village, and, in a pre-planned manner had broken doors of his house in order to get a false case registered against the bank employees. Natives of the village seeing Ramzan Ali breaking and damaging doors of his house retreated to the safety of their homes in consequence of which an eerie silence gripped his village. It is also recorded that natives who were engaged in the routine of the daily business abandoned work and retreated to the safety of their homes. On this information, police force was detailed to the said village. It is also recorded that after the aforesaid steps were taken, the S.H.O. returned to station and a detailed information was recorded vide G.D. No. 6, an extract of which is annexed as Annexure No.5 to the report by the S.H.O.

It is also recorded in the report that in consequence of the incident on 13.04.2017 bank employees for the fear caused by the petitioner Ramzan Ali went off work, and, on this information spreading an atmosphere of fear and terror gripped members of the public in the locality and adjoining areas; shops, business establishments, Bazar etc were closed as a result of bank transactions coming to a standstill. The general public on account of closure of bank business leading to non-withdrawal of funds found themselves deprived of their daily needs. Public order thus went into completely disarray.

It is also recorded that on news of the incident being reported in prominent dailies bank employees in general struck work which, in turn, severely affected business depriving members of the public of their daily requirements. It is also recorded that the petitioner on 16.04.2017 went to his native village along with his companions armed with fire arms which they brandished to the natives with a warning that in case anyone dared to speak to the police he would face fatal consequences. The open words and acts of threat to the native of his village led to a widespread atmosphere of fear and terror in petitioner's native village on 16.04.2017 in consequence whereof the villagers quietly withdrew to the safety of their homes throwing the even tempo of life out of gear.

The S.H.O. recorded the statement of the victim regarding the details of the assault that left him near dead, besides other bank employees and members of the public. The report carries a detailed history of 18 cases specifically mentioning those that had adversely affected the public order in the past and requested the Superintendent of Police to recommend a case to the Detaining Authority for the petitioner's detention under the Act.

The report of the S.H.O. was endorsed by the C.O. to the Additional Superintendent of Police, City, Shahjahanpur who in turn endorsed it with his report to the S.P. Shahjahanpur. Each of the reports at different levels of the sponsoring authority are annexed as Annexure-4 to the petition. All the reports are made on 14.06.2017 and on the basis of these reports the Detaining Authority has passed the detention order also on 14.06.2017 supported by grounds of the said date. The detention order the grounds are annexed as Annexure-1 to the petition. The detention order received approval of the State Government on 22.06.2017 under Section 3(4) of the Act, a copy of which is annexed as Annexure-8 to the petition.

The petitioner submitted his representations numbering four, all dated 20.06.2017 addressed to the District Magistrate, the State Government the Advisory Board, and, the Central Government through the Jail Superintendent by submitting these to the office of the Jail Superintendent on 20.06.2017. The petitioner's representation to the Advisory Board was referred to them on 22.06.2017; the representation addressed to the State Government was received by them on 30.06.2017; the representation addressed to the District Magistrate was rejected on 26.06.2017 while that addressed to the State Government was rejected on 12.07.2017. The Central Government rejected his representation on 17.07.2017. The representation addressed to the Advisory Board was considered by the Board on 13.07.2017 with personal hearing to the petitioner. The Board also turned down petitioner's representation determined by them in exercise of powers under Section 10 of the Act advising the State Government accordingly. The State Government on the basis of the report of the Advisory Board approved detention for the petitioner for a period of three months from the date of the detention order, by an order dated 02.08.2007 annexed as Annexure-9 to the petition. The State Government on further report of the Advisory Board under Section 11 of the Act extended the period to six months from the date of the detention order. The said order is annexed as Annexure-2 to the counter affidavit filed on behalf of the State to which allusion would be made in some further detail hereinafter.

This petition was filed on 5th September, 2017 and came up for admission on 07.09.2017 when this Court passed the following orders:

"Heard Sri D.S.Mishra, learned counsel for the petitioner and Sri I.P.Srivastava, learned AGA for the State.

Learned AGA as well as learned counsel for Union of India shall file counter affidavit within two weeks. Rejoinder affidavit, if any, may thereafter be filed within one week.

List in the week commencing from 3rd October, 2017 before the appropriate Bench."

The aforesaid order thus constitutes rule nisi issued to the respondents to show cause in this habeas corpus petition.

In answer to the rule nisi issued by this Court the earliest return was filed on behalf of the Detaining Authority that is an affidavit of Narendra Kumar Singh, the incumbent District Magistrate who passed the detention order. The affidavit appears to have been sworn at Shahjahanpur on 22.09.2017, and, formally signed by the A.G.A. on 04.10.2017. It was filed in Court on 09.10.2017 and taken on record. Thereafter counter affidavits on behalf of the State and the Union of India were filed together on 24.10.2017 in Court and were accepted on record. The counter affidavit on behalf of the State is an affidavit sworn on 23.10.2017 by Suneet Kumar Dwivedi posted as Section Officer, Home (confidential) Section-5, U.P. Civil Secretariat, Lucknow. The counter affidavit on behalf of the Union of India is an affidavit sworn on their behalf by Rajesh Ranjan, Under Secretary, Ministry of Home Affiairs Govt. of India, New Delhi. The said affidavit has been sworn on 10.10.2017 before a notary public at Delhi and the counter affidavit has been signed by the learned AGA on 24.10.2017. The date on which it was filed before the Court is not discernable. A counter affidavit on behalf of the Superintendent, District Jail, Shahjahanpur has been filed by one B.R. Verma, presently posted as Senior Superintendent of Central Jail, Naini, District Allahabad. The said affidavit has been sworn at Allahabad on 25.10.2017 and is available on record. The order sheet does not indicate the precise date on which it was filed. There is a supplementary affidavit also filed on behalf of the petitioner being an affidavit dated 18.09.2017 which is on record. The petitioner has filed a rejoinder affidavit sworn on 24.10.2017 in response to the counter affidavit filed on behalf of the Detaining Authority and another rejoinder affidavit also sworn on 25.10.2017 filed in response to the counter affidavit filed by the State Government. Both the aforesaid rejoinder affidavits are available on record.

We have heard Sri Daya Shankar Mishra, learned counsel for the petitioner, Sri Ali Murtaza, learned Additional Advocate General on behalf of Respondent Nos. 1, 2 and 3 and Sri Dhurva Kant Chaturvedi, learned counsel appearing on behalf of Union of India. We have carefully perused the records of the case relating to the petitioner's detention under the Act questioned through this petition including all affidavits filed by parties together with the documents annexed.

Learned counsel for the petitioner has assailed the detention order as one being beyond the scope of Section 3(2) of the Act inasmuch as the detention order and grounds in support at best make out a case of violation of 'law and order' and not 'public order'. The learned counsel has anchored his case on the ground to pleadings in paragraphs 9 and 24 of the writ petition; there are being reproduced below (in Hindi Vernacular):

"9] ;g fd ;kph ds fo:) mRrjoknh la[;k 2 }kjk gLrk{kfjr fu:f) vk/kkj fnukafdr 14-06-2017 yksd O;oLFkk ds vuqj{k.k fufeRr ilaxsrj gS] rFkk yksd O;oLFkk ds vuqj{k.k fufeRr laxr Hkh ugha gSA

24- ;g fd vkjksfir vijk/k la[;k 740 o"kZ 2017 rFkkdfFkr ?kVuk lkekU; fof/k fo"k;d gS] ek= bruk gh ugha vfirq vk/kkj esa of.kZr vU; vkjksfir vijk/k dh rFkkdfFkr ?kVuk,Wa] ftuesa ;kph funksZ"k gS] lkekU; fof/k O;oLFkk ls lEcfU/kr gS] os yksd O;oLFkk ds vuqj{k.k fufeRr drbZ laxr] ugha gSA"

The aforesaid case of the petitioner has been met by the detaining authority through paragraphs 8 and 20 of the counter affidavit that read thus:

"8. That the contents of paragraph nos. 6 and 7 of the habeas corpus petition are misconceived hence denied. In reply, it is submitted that the detention order and grounds of detention are not based on political influence and the answering respondent has independently applied his mind and recorded subjective satisfaction.

20. That the contents of paragraph nos. 23 and 24 of the habeas corpus petition are misconceived hence denied. It is submitted that to constitute an offence under Section 307 IPC, injury is not required but it is the intention to cause death. It was a case of clear breach of public order and this fact has been rejected in the detention order."

The submission that the offence on the basis of which the detention order has been made is nothing but an act constituting a mere violation of law and order and that it does not travel to the arena of 'public order' where the power to preventively detain may lawfully be exercised requires some pause and consideration before we move on to determine the worth of other grounds of challenge.

It is by now beyond debate for a legal proposition that it is not the intrinsic nature or severity of the act constituting the offence that would determine whether it constitutes a violation of 'law and order' or it travels beyond to become a case of violation of 'public order'. What is determinative of the distinction between the two is the impact the act or the offence creates in the community. A situation where a given act constituting an offence only effects an individual or a family or a few of them, leaving the even tempo of life of the community at large unaffected, it would constitute no more than breach of law and order; the same act, however, in case of changed circumstances on account of all factors extraneous to the act itself disturbes the even tempo of life of the community or has potential to disturb it, would constitute an act affecting public order.

This distinction between what would constitute violation of law and order and what would be an act disturbing the maintenance of public order engaged the attention of the Supreme Court in State of U.P. and another vs. Sanjay Pratap Gupta @ Pappu and others, 2004 (8) SCC 591. In paragraphs 12, 13 and 14 of the report in re: State of U.P. (supra) their Lordships after a copious reference to authority on the issue and examine the distinction in fine detail held:

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

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

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

The aforesaid distinction has been has been succinctly brought out in an earlier decision of this Court in Sant Singh vs. District Magistrate, Varanasi 2000 CriLJ 2230, where in paragraph 7 of the report it has been held thus:

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

7A. We have been taken through the decisions of the apex Court in Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989.SC 371 : 1989 Cri LJ 950 T. Deoki v. Government of Tamil Nadu, AIR 1990 SC 1086, Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra, 1992 AIR SCW 835 AIR 1992 SC 979, Tarannum (Smt.) v. Union of India, 1998 SCC (Cri) 1037 : AIR 1998 SC 1013 and the Full Bench'decision of this Court in Shesh Dhar Misra v. Superintendent Central Jail Naini, 1985 All LJ 1222, Arvind Kumar Shukla v. State of U.P., 1985 ALJ 1259, as well as Division Bench decision of this Court in Harish Kasana v. State of U.P., 1998 (37) ACC 724 1999 All LJ 598 and Atiq Ahmad v. Chief Minister State of U.P. decided by this Court on 5-10-1998 to support the contention that present is the case in which there was merely a breach of 'law and order' and the acts of the petitioner, if at all, were not prejudicial to the maintenance of 'public order'. At the outset, we would do better to explode the myth that no single act can give rise to 'public disorder'. Dealing with this question as to whether one solitary instance can be the basis of an order of detention, their Lord-ships of the apex Court in Smt. Bimla Rani v. Union of India, 1989 (26) ACC 589 SC observed that the question is whether the incident had prejudicially affected the 'public order'. In other words, whether it affected the even tempo of the life of the community. In Alijan Mian v. District Magistrate Dhanbad, 1983 (3) SCR 930 AIR 1983 SC 1130 it was held that even one incident may be sufficient to satisfy the detaining authority in this regard, depending upon the nature of the incident. Similar view has been expressed in the host of other decisions. The question was answered more approprietly and with all clarity in the case of Attorney General of India v. Amratlal Prajivandas, AIR 1994 SC 2179, wherein the apex Court ruled that it is beyond dispute that the order of detention can be passed on the basis of a single act. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudical activities. It cannot be said as a principle that one single act cannot be constitued the basis for detention. Thus, the argument of learned counsel for the petitioner that since it is solitary incident of the petitioner, he deserves sympathy, is rejected. Now the law, as it stands, is that even one solitary incident may give rise to the disturbance of 'public order'. It is not the multiplicity but the fall out of various criminal acts. Though there is consistency in the various decisions of the apex Court about the interpretation of the expressions of 'law and order' and 'public order' undue insistence on the case law is not going to pay any dividend as each case revolves round its own peculiar facts and has to be viewed in the light of the various attending factors. It is difficult to find a case on all fours with the case in hand."

The law summarized in re: Sant Singh (supra) says in the closing lines of the paragraph extracted that law on the issue being well settled each case turns on its peculiar facts, and, therefore, the issue whether a given act constitutes a violation of public order or merely transgresses 'law and order' has to be determined in the background of relevant attendant factors. We are in respectful agreement also with the aforesaid view of their Lordships. Our task, therefore, is to determine whether the facts in hand discernible from the detention order, the ground in support, and, the material on which grounds are based, constitute merely infraction of law and order or an act that vitiates public order. We are content to note that our task in this regard is not an arduous one for the facts that emerge from the grounds of detention and the material in support leave us in no manner of doubt that the act of the petitioner leading to the detention order is decidedly one that has potential to disturb the even tempo of life of the community.

It is not our province to determine whether the facts narrated in the grounds and the material in support are correct or not; truthful or false.

All that we are required to see is those facts and the materials as they appear on record constitute an act of violation of public order or have the potential to vitiate the same or do they just constitute infraction of the law and order. The grounds of detention clearly disclose that the act of the petitioner leading to the detention order in waylaying the Branch Manager of the Bank of Baroda in the evening hours of 12.04.2017 and severely beating him up in public view besides attempting to shoot him that left him near dead on a public road led to widespread anger and insecurity amongst bank employees as also the general public. It is also recorded in the grounds that members of the public and employees of the State who witnessed the occurrence took to their heels abandoning their respective station of duty or business. Villages nearby were overtaken by an atmosphere of fear and terror. In consequence of the occurrence the entire life of the community in the township of Sindhauli was dislocated with closure of shops and other establishments that, in turn, adversely affected business in the entire township. So much was the impact of the occurrence that additional police force had to be deputed in Sindhauli to maintain public order. The precise words employed in the relevant part of grounds of detention read as under (in Hindi vernacular):

"vkids }kjk fd;s x;s bl d`R; dks ysdj cSad [email protected]{ks= dh turk esa Hkkjh vkdzks'k QSy x;k rFkk turk esa ng'kr dk ekgkSy O;kIr gks x;kA turk ds [email protected]; deZpkjh tks ?kVuk LFky ds vkl ikl vius dk;Z dks dj jgs Fks Mj ds dkj.k Hkkx x;sA vkl ikl ds xkaoks esa ng'kr dk ekgkSy O;kIr gks x;kA ?kVuk ds izfr'kks/k esa dLck fla/kkSyh esa nqdku ,oa izfr"Bkuks dk O;kikj izHkkfor gqvkA fla/kkSyh dLcs dh yksd O;oLFkk ds vuqj{k.k esa vfrfjDr iqfyl cy M~;wVh ij yxk;k x;kA**

The aforesaid facts recorded in the grounds of detention are based on the report of the sponsoring authority in particular the report of the S.H.O. P.S. Sindhauli dated 14.06.2017 that has as many as 31 documents appended to it as material in support of the facts mentioned therein. The report of the S.H.O. Sindhauli was submitted to the S.P. Shahjahanpur. The facts stated in the said report and the material on which it is founded leaves us in no manner of doubt that the act of the petitioner leading to the occurrence, particularly bearing in mind his criminal history proximate in point of time enumerated under heads A, B, C, D and E at pages 41 and 42 of the paper book besides that under heads A and B at page 43 of the paper book that the incident in question had a deep, for reaching, disturbing and pernicious impact on the smooth and even tempo of life in the township of Sindhauli where life was completing thrown out of gear as a fall out of the petitioner's act. As such, we are constrained to hold that petitioner's act leading to the detention order is one that squarely falls on the pre-determined parameters of law into one that vitiated public order and also had potential of disturbing the maintenance of public order.

To our mind, therefore, the petitioner's detention cannot be assailed on the ground that his act in question was not one that affected maintenance of public order as envisaged under Section 3(2) of the Act.

This takes us to the next submission of Sri D.S. Mishra, learned counsel for the petitioner which he has pressed with much vehemence and in meticulous detail. Sri Mishra has submitted that detention order is vitiated as there was absence of a real subjective satisfaction of the detaining authority that the petitioner was required to be preventively detained under the Act on the basis of material available on record and that power under the Act was exercised by the Detaining Authority mechanically by merely appending his signatures to the detention order drawn up by other authorities, say the sponsoring authorities or ministerial hands in his office.

In order to substantiate his challenge on the ground under consideration, the learned counsel for the petitioner has drawn the attention of the Court to the fact that there is a generic difference between the grounds of detention set out in the detention order and the grounds of detention themselves that support the said order including the materials that supports those grounds. Learned counsel on this score has referred to paragraph 33 of the writ petition as also the contents of the detention order, with reference to words in the last mentioned paragraph of the writ petition that read thus (in Hindi vernacular):

^^----------fdlh Hkh ,slh jhfr esa dk;Zokgh djus ls jksdus ds mn~ns'; ls tks fd yksd O;oLFkk ls vuqj{k.k ds fy, vko';d iznk;ks vkSj lsokvks dks cuk;s j[kus ds izfrdwy gks---------**

Sri Mishra has pointed out that the words employed in the detention order indicates that same has been passed in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of supply and services essential to the community but the grounds of detention do not say or indicate anything which may show that the detention order has also been passed, besides preventing the petitioner from acting in a manner prejudicial to the maintenance of public order, from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

No doubt the learned counsel for the petitioner is right on facts that the detention order mentions both grounds as to "maintenance of public order" and "maintenance of supply and services essential to the community" but the grounds of detention nowhere carry any reference to the petitioner acting in a manner pre-judicial to the maintenance of supply and services essentially to the community; the grounds of detention only speak about maintenance of public order.

Learned counsel for the petitioner has submitted that omission and discrepancy as above pointed out between the grounds of detention mentioned in the detention order and those mentioned in the grounds of detention in support thereof clearly go to show that the Detaining Authority has acted mechanically and without application of mind vitiating his subjective satisfaction. It shows according to learned counsel that the Detaining Authority appended his signatures to the detention order and grounds authored by someone else, all of which betray utter lack of application of mind to the most fundamental parameters on which the detention order is founded.

Sri Mishra has further buttressed his case of non-application of mind by the Detaining Authority by contending that in the penultimate paragraph of the grounds of detention (at page 23 of the paper book) the Detaining Authority has recorded his subjective satisfaction to exercise powers under the Act by recording it in words to the effect that it is necessary to take action against the petitioner through any kind of proceeding as may prevent "public order and law and order" from being disrupted by him in public interest for which purpose it is necessary to detain him (under the Act). Learned counsel for the petitioner strongly assailed the validity of the Detaining Authority's subjective satisfaction both in the interest of preservation of "public order" and "law and order" one at the same time. Sri Mishra submits that a combined use of the two expressions "public order" and "law and order" vitiates the subjective satisfaction of the Detaining Authority inasmuch as one of these, that is to say, "public order" is a valid ground to exercise power under the Act whereas the other "law and order" is not a good ground authorizing exercise of the said power. Learned counsel submits that such an order would be bad for the reason that it could not be said in what manner and to what extent the valid and invalid grounds operated in the mind of the Detaining Authority contributing to the formation of a valid subjective satisfaction which is the basis of the detention order.

Sri Mishra submits that this was precisely the question that was answered by their Lordships of the Supreme Court in Ram Manohar Lohiya vs. State of Bihar, AIR 1966 SC 740. The said case which is authority of a Constitution Bench of the Supreme Court is a case where their Lordships were called upon to answer the same question in relation to the Defence of India Rules whereunder the order of preventive detention in that case had been made. The order had employed two expressions to found subjective satisfaction of the Detaining Authority under the relevant rule that was R-30(1)(b) of the Defense of India Rule, 1962. The combined expression in the grounds of detention in support of the detention order had mentioned that it was necessary to make that order to prevent the petitioner from "acting in any manner prejudicial to public safety" and "the maintenance of law and order". Under the rule in the case before their Lordships of the Constitution Bench the ground of preventing the detenue from acting in any manner "pre-judicial to public safety" was relevant whereas "maintenance of law and order," as is the case here, was not relevant. It was held by their Lordships following an earlier decision in Shibban Lal Saxena vs. State of U.P., AIR 1954 SC 179 that such an order would be a bad. The order combining two grounds of detention one valid and the other invalid as above mentioned was held to be bad by their Lordships of the Constitution Bench in re: Ram Manohar Lohiya (supra) in the following words as they appear in paragraph No. 15 of the report extracted below:

"(15) For these reasons, in my view, the detention order if it had been based only on the ground of prevention of acts prejudicial to the maintenance of law and order, it would not have been in terms of r. 30(1)(b) and would not have justified the detention. As I have earlier pointed out, however, it also mentions as another ground for detention, the prevention of acts prejudicial to public safety. In so far as it does so, 'it is clearly within the rule. Without more, we have to accept an order made on that ground as a perfectly legal order. The result then is that the detention order mentions two grounds one of which is in terms of the rule while the other is not. What then is the effect of that ? Does it cure the illegality in the order that I have earlier noticed ? This question is clearly settled by authorities. In Shibban Lal Saksena v. The State of Uttar Pradesh, AIR 1954 SC 179, it was held that such an order would be a bad order, the reason being that it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction which formed the basis of the order. The-order has, therefore, to be held illegal though it mentioned a ground on which a legal order of detention could have been based. I should also point out that the District Magistrate has not said in his affidavit that he would have been satisfied of the necessity of the detention order only for the reason that it was necessary to detain Dr. Lohia to prevent him from acting in a manner prejudicial to public safety."

Learned counsel for the petitioner in support of the same submission that inclusion of an extraneous ground in the ground of detention together with a valid ground vitiates the subjective satisfaction of the Detaining Authority has placed reliance on the authority of the Supreme Court in Kishori Mohan Bera vs. State of West Bengal, AIR 1972 SC 1749. The said case arose in the context of a detention order passed by the Detaining Authority empowered under Section 3(1) and (2) of the Maintenance of Internal Security Act, 1971. The order said that it was necessary to detain the petitioner "with a view to prevent him from acting in a manner prejudicial to the maintenance of the public order or security of the State" [quoted from report in re: Kishori Mohan (supra)] . The order of detention that included a ground not relevant under the statute empowering the Detaining Authority was disapproved by their Lordships in words that appear in paragraphs nos. 5 and 6 of the report in re: Kishori Mohan (supra) and read as under:

"5. Section 3 of the Act empowers the authorities specified therein to detain a person on the specific grounds laid down therein, namely, preventing the person concerned from acting in a manner prejudicial to (i) the Defence of India, relations of India with foreign powers or the security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community. We are not concerned with a foreigner, to whom Clause (b) of the section also would apply, and therefore, that clause need not detain us. Section 3 thus clearly lays down that the power of detention conferred thereunder can be exercised on any one or more of the said grounds. Obviously, therefore, if the power is exercised on a ground not enumerated there, or in respect of activities which are not germane to any one of those grounds, such exercise would be beyond the jurisdiction of the detaining authority, and therefore, invalid.

6. As aforesaid, the District Magistrate detained the petitioner, as the impugned order recited, on the ground of preventing him from acting in any manner prejudicial to "the maintenance of public order or the security of the State", here the State of West Bengal. He was satisfied of the necessity of detaining the petitioner from the activities alleged against him in the grounds of detention set out earlier. The Act no where defines the expressions 'public order' and 'the security of the State', but by a series of decisions, to some of which only we need recall attention, the connotation and the area of each of them has been defined and the meaning to be attached to each of them has by now been well crystalised. So that the authority passing an order of detention can very well know the danger, or the likely danger to any one or more of the objects set out in Section 3 from the activities of the person concerned."

The learned counsel for the petitioner has invited the attention of this Court to paragraph 32 of the writ petition which squarely pleads that the detention order is based on the ground that it mentions satisfaction of the Detaining Authority both on 'public order' and 'law and order' being disrupted by the Detenue if not detained under the Act and the mention of one irrelevant ground not envisaged by Section 3(2) of the Act shows non-application of mind to relevant material, non-application of mind to the requirement of the statute and also that the order has been authored by someone else than the Detaining Authority who has signed the same mechanically. Contents of paragraph 32 of the writ petition may be gainfully quoted:

^^32- ;g fd ftyk eftLVªsV] 'kkgtgWkiqj ¼mRrjoknh la[;k&2½ }kjk gLrk{kfjr fu:f) vk/kkj ij i`"B la[;k&3 ij uhps ls nwljs izLrj esa] tgWk mudk rFkkdfFkr lek/kku of.kZr gS] ds ifj'khyu ls ;g rF; vius vki esa Hkyh izdkj fl) ,oa izekf.kr gksrk gS fd ;kph dks nf.Mr djus ds mn~ns'; ek= ls gh jklqdk dh /kkjk 3 ¼2½ ds vUrxZr fu:) fd;k ,oa djk;k x;k gSA ekuuh; U;k;ky; ds le{k bl lanHkZ esa ;gak ;g Hkh of.kZr djuk vius vki esa laxr ,oa vko';d gS fd rFkkdfFkr lek/kku esa ^^yksd O;oLFkk ,oa dkuwu O;oLFkk^^ dks fNUu&fHkUu ls jksdus ds fy, tufgr esa fu:) djus gsrq ;kph dks fu:) fd;k x;k gS] of.kZr gS] tcfd jklqdk dh /kkjk 3 ¼2½ ds vUrxZr dkuwu O;oLFkk ds vuqj{k.k ds izfrdwy dk;Zokgh djus ls [email protected]"ksf/kr djus fufeRr fujks/kkns'k ikfjr] gLrk{kfjr o fu"ikfnr fd;s tkus dh vf/kdkfjrk fujks/kd vf/kdkjh dks ugha izkIr gS] blls Hkh ;g vius vki esa Hkyh izdkj fl) ,oa izekf.kr gksrk gS fd ;kph ds okLrfod fujks/kd vf/kdkjh ftyk eftLVªsV] 'kkgtgWkiqj ¼mRrjoknh la[;k&2½ ugha gS] vfirq vU; fdlh nwljs vf/[email protected]/kdkjh }kjk rS;kj fd;s ,oa djk;s x;s fu:f) vk/kkj ij leku ,d gh frfFk ij uSfefRrd ,oa ;a=or The aforesaid paragraph has been answered in the counter affidavit of the Detaining Authority vide paragraph 26 that reads as follows:

"That the contents of paragraph no.32 of the habeas corpus petition are misconceived hence denied. Appropriate reply has already been given in the preceding paragraphs of this counter affidavit."

In substance the contention of the learned counsel for the petitioner on both limbs of attack to the detention order is the same. It is that, that mention of one relevant ground and the other irrelevant in the ground of detention vitiates subjective satisfaction of Detaining Authority; and also, that mention of differing grounds in support would vitiate the subjective satisfaction of the Detaining Authority as in both cases the aforesaid mention of an irrelevant ground or differing grounds in the detention order and grounds in support are a clear index of non-application of mind to relevant facts, material and grounds.

We are afraid that the contention of the learned counsel for the petitioner founded on both limbs of his submission is advanced on authority that held field before amendment to the Act was brought about through Act No. 60 of 1984 vide section 2 of the amending Act w.e.f. 21.06.1984. By the said amendment, Section 5A was introduced in the Act and the same reads as under:

" 5A. Grounds of detention severable- Where a person has been detained in pursuance of an order of detention [whether made before or after the commencement of the National Security (Second Amendment) Act, 1984 (60 of 1984)] under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly─

(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are−

(i) vague,

(ii) non-existent,

(iii) not relevant,

(iv) not connected or not proximately connected with such person, or

(v) invalid or any other reason whatsoever,

and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention;

(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that section with reference to the remaining ground or grounds.]

One of the earliest decisions noticing the effect of the amendment as aforesaid is that of the Delhi High Court in Mohd. Shahid vs. The Administrator, Union Territory of Delhi and others, 1984 (2) Crimes 420, where His Lordship Prakash Narain, C.J. speaking for the Division Bench held:

"(8) As we read the newly inserted section, so long as even one valid ground is available the rule will have to be discharged. To our mind there are more than one ground which could be upheld in the present case. For each of the valid grounds it would be deemed under section 5a as if separate detention orders have been issued. Therefore, the argument that if one ground is bad the whole detention falls or continued detention become invalid is no longer available to person similarly situate as the petitioner."

In Attorney General of India vs. Amrat Lal Prajivandas and others, 1994 (5) SCC 54 determining the impact of Section 5A of the Act it has been held that where the detention is based on more than one ground, by a legal fiction it would be deemed that there are as many orders of detention as there are grounds which means that each of such order is an independent one. Paragraphs 48 and 49 of the report in re: in Attorney General of India (supra) are eloquent on the issue. The aforesaid view with regard to the effect of Section 5A of the Act was endorsed again by their Lordships of the Supreme Court in State of U.P. and another vs. Sanjay Pratap Gupta @ Pappu and others, (2004) 8 SCC 591. The question with reference to the contention of the learned counsel now raised before us the answer to which is different in the pre and the post amendment context of the Act was squarely answered by a Division Bench of this Court in Farahad Khan vs. State of U.P. and others, 1998 Cr.L.J. 1028 in the following words:

"41. Even taking ground No.1 to be stale and too remote and not proximate to the order of detention, the detention cannot be held vitiated as it could be sustained on the other grounds in the grounds of detention because subsequent to the rendering of the said judgment by the Apex Court, the National Security Act, 1980 has been amended and Section 5A has been introduced which says that the order of detention under Section 3 of the Act which has been made on two or more grounds shall not be deemed to be invalid or inoperative because one of the grounds is not relevant or not proximately connected with such person on invalid for any other reason whatsoever."

The same issue was also considered by a Division Bench of this Court in Mohammad Rafiq vs. State of U.P. and others, 1998 ALL. L.J. 1461, where in paragraph 11 of the report held as under:

"11. It was stated, further, that although the grounds spoke of proceedings under the Goonda Act against Liyaqat and Saniullah, these papers were not supplied to the petitioners and this was certainly a gross violation of the provisions of law as the petitioners, due to non-supply of these papers, were prevented from making proper representations. The learned A.G.A. had stated that if one of several grounds falls due to some reason or the other, or is found to be invalid, the detention order could still be sustained if the other grounds were valid. He made a reference to Section 5A of the Act. A reading of the grounds indicate that in several paragraphs different allegations were levelled touching the alleged past activities of the petitioners and one of the paragraphs only spoke of the proceeding under the Goonda Act. Section 5A of the Act clearly postulates that where a person has been detained in pursuance of an order of detention under the National, Security Act on two of more ground's, the order of detention shall be deemed to have been made separately on each of such grounds and accordingly such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person, or invalid-for any other reason whatsoever. This section directs that it would be presumed that the detaining authority was satisfied with reference to the remaining grounds to make the order of detention. On this point, the learned counsel for the petitioners further submitted that Section 5A of the Act speaks of the grounds of detention and is an exception on the point of validity of all the grounds. It could not, according to the learned counsel, be read as an exception to the procedure as laid down in Section 8 of the Act and it was argued that the substantive law of detention has the inbuilt checks through the procedural safeguards for the protection of liberty of citizens. It was stated that Section 5A simply saved an order under Section 3(2) based on several grounds including an invalid one, but it did not save a deviation from Section 8 of the Act which requires communication of the grounds of detention to the detenu and to afford him an earliest Opportunity of making representation against the order to the appropriate Government. In our view, the legislative right of making a detention law springs from the provisions of Article 22 of the Constitution and any law of detention must always be subject to the safeguards guaranteed under that Article. Detention cannot be made without the procedure laid down by law and the provisions of one section or the other in the Act speaks of procedure only under which a detention is to be made. In the absence of Section 5A, a ground of detention may be challenged for n non-fulfilment of the procedural safeguards as indicated in Sections 8, 10, and 14 of the Act. Section 5A must, therefore, be read as a provision which saves a detention order based on several grounds even though one of such grounds become invalid "any other reasons whatsoever. This clause would include invalidity of a ground of detention or non-compliance of the procedural aspects as well. Thus, Section 5A of the Act could always be read to exclude the invalid piece of ground and to see if the rest of the grounds could sustain a detention order. The non supply of papers concerning the proceeding under the Goonda Act against Liyaqat and Saniullah could, at the best, make that ground invalid but could not affect the other grounds, if otherwise valid. Concerning non supply of papers, it was further stated that in the grounds a lady named Beena, was described as the second wife of Wahid Khan and this fact was seriously challenged. It was stated that Beena was forcibly abducted by Wahid Khan, for which a F.I.R. was lodged against Wahid and the petitioner had demanded copies of that F.I.R.,' but was not supplied the same. Even if, it is accepted that Beena was not the second wife of Wahid Khan but, was just a woman forcibly dragged into his harem, the act of the petitioners in killing Wahid Khan and to cut off his head and take it away could never be justified under any pretext of law. The relationship between Beena and Wahid Khan has been quoted in the grounds only to indicate that Liyaqat had a lustful eye towards this woman and to put pressure on her or on Wahid Khan, the son of Wahid Khan was kidnapped."

The position of law with regard to Section 5A of the Act was exhaustively reviewed in a Full Bench decision of Madhya Pradesh High Court in Mangal Singh vs. State of M.P. and others, while answering certain questions referred to their Lordships. The aforesaid decision is reported in 2016 (159) AIC 445 (M.P., H.C.-F.B.) where A.M. Khanwilkar, C.J. (as is Lordship then was) held:

"21. Indisputably, provision such as Section 5-A is an exception to the ordinary rule. To wit, the ordinary rule is that the whole of the subjective satisfaction is vitiated even on one count. The statement of objects and reasons for introducing section 5-A makes it amply clear that the said provision was necessitated because of the whole of the detention order was being set aside by the Courts even due to one invalid or non-operative ground. To remove that difficulty and to make the special provisions in respect of persons whose detention is necessary for dealing effectively with the exigency, section 5-A was enacted.

We are conscious of the fact that what constitutes grounds of detention in the context of section 5A should stay clear in perspective. A reading of decisions hereinbefore mentioned that are authority on the question of severability of grounds under Section 5A of the Act refer to different things as grounds. Some of these decisions relate to instances of violation/offences committed by a persons as basic facts to mean grounds of detention. Elsewhere, the inference of law drawn from these facts being acts of omission or commission are considered to be grounds for the purposes of Section 5A. Again, it is reference to the specified categories of legal grounds mentioned in Section 3(2) of the Act that is considered to be grounds with reference to Section 5A of the Act. To be more specific under this head of what is a ground all that it means is whether the detention is based on grounds of (security of State) or (maintenance of public order) or (maintenance of supply of services essentially to the community). We think that the principles of severability embodied in section 5A of the Act apply to all the above described situations that are referred to as grounds of detention in varying context.

For the view taken by us we may draw support from the decision of a Division Bench of this Court in Syed Mohd. Nadeem vs. Superintendent, District Jail, Agra, 2000 ALL.L.J. 1574 where it has been held thus:

"9. The word "grounds" used in Section 5-A comprehends at least three things : (1) the basic facts and materials which have been taken into account by the detaining authority in making the order of detention and on which the order is based; (ii) the conclusions drawn by the detaining authority from such facts and materials; and (iii) the object or objects sought to be achieved by the order of detention i.e. the category under which the power of detention may be exercised. In fact, the conclusions drawn by the detaining authority from the available facts and materials will show in which of the categories of the prejudicial acts mentioned in the statute the suspected activity of the detenu falls. The object of making an order of detention under Section 3(2) of the Act is to prevent the detenu 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' and each of the three categories aforestated is an independent constituent of "grounds" besides being the object of detention. "Security of India" and for that purpose "security of Nation"-the expression used by the detaining authority may be "irrelevant" for exercise of power by the Distt. Magistrate under Sub-section (2) of Section 3 of the Act but the order of detention in so far as it seeks to prevent the detenu from acting in any manner prejudicial to the 'maintenance of supplies and services essential to the community' would still be valid in view of Sub-clause (b) of Section 5-A of the Act. Though the order of detention purports to have been passed with a view to preventing the detenu from acting in any manner prejudicial to "the security of Nation/maintenance of supplies and services essential to the community". It is sought to be vindicated herein on the premises that it was passed on being "subjectively satisfied that the activities of the petitioner are prejudicial to the security of the State and prejudicial to the supplies and services essential to the community." Legal position in this respect is well settled. Validity of an order is to be tested on the touchstone of the reasons given in the order itself and not with reference to reasons subsequently disclosed by means of affidavit. Mohinder Singh Gill v. Chief Election Commission AIR 1978 SC 851. The reason of "security of the State" as given in the counter affidavit for passing the impugned order, therefore, cannot be accepted by the Court. We are, however, of the view that albeit the District Magistrate had no jurisdiction to detain the petitioner on the reason of the security of Nation, and the reason of the security of the State unfolded in the counter affidavit cannot be looked into except on pains of infringing upon the detenu's right to make representation enshrined in Article 22(5) of the Constitution, the detention can still be sustained by virtue of Section 5-A(2) of the Act, for the reasons of the maintenance of the supplies and services essential to the community, for it has not been disputed and in fact it cannot be repudiated that in view of Government of India notification dated 8-2-82, "any service in connection with or in relation to Bank' and 'any service in any Mint or security press', come within the purview of 'supply and services essential to the community' for the purposes of Section 3(2) of the Act. In Habeas Corpus Petition No. 38772 of 1999, Ravindra Kumar Agraheri v. Union of India decided on 15-12-99 reported in (2000) 27 All Cri R 436, a Division Bench of this Court in which one the us (Hon. V. K. Chaturvedi) was a member, has held the view that the objectionable activity of the type we are concerned with, will constitute a basis for making an order of detention with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services essential to the community."

(Emphasis supplied)

The question as to the submission of Sri D.S. Mishra founded as it is on the provisions of pre-amended Act has been dealt with exhaustively in a decision of Manipur High Court in Lourembam Busan Singh vs. District Magistrate, Imphal West and others, 2014 (45) R.C.R. (Criminal) 769, where it has been held thus:

"9. It will be appropriate to refer to the relevant provision of the NSA, 1980. Sub-section 2 of the section 3 provides that Central Government or the State Government may, if satisfied with respect to any person that with a view to prevent 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, it is necessary to do so, can make an order that such a person be detained under sub-section 3 of the section 3. The District Magistrate is to be satisfied that it is necessary to do so with a view to prevent such person 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. Referring to the above provision, the Apex Court has decided in the case of G.M. Shah vs. State of Jammu & Kashmir (supra) that an order of detention can be passed either (1) to prevent from acting in any manner prejudicial to the security of the state or (2) to prevent such person from acting in any manner prejudicial to the maintenance of public order. An order of detention cannot be passed on the basis of both. Section 5-A was brought in the statue by way of Amendment w.e.f. 21.6.1984. The said amended provision provides that where a person has been detained in pursuance of an order of detention u/s. 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly, such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-vague, non existent, non-relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever. Since the amended provision was not in existence when the above two decisions were rendered by the Court, the same could not have been taken into consideration. In the present two writ petitions, it is stated in the grounds of detention that the order of detention has been passed to prevent the petitioner therein not only with a view to preventing him from acting in any manner prejudicial to the security of the state but also from acting in any manner prejudicial to the maintenance of public order."

The decision in re: Lourembam Busan Singh (supra) dealt with a fact situation that is similar if not identical on legal para meters to the one in hand. In the aforesaid case the detention order was passed under Section 3(2) of the Act mentioning in grounds of detention that the order of detention has been passed considering the conduct of the petitioner which is prejudicial to the security of the State and maintenance of public order. In the order of detention, it was said that it is for activities that are prejudicial to the maintenance of public order. It is with reference to the varying grounds vis-a-vis the category under Section 3(2) of the Act that the power was exercised by the Detaining Authority mentioned in the detention order on one hand and grounds of detention on the other, and, further on account of two different categories of grounds under Section 3(2) of the Act being mentioned in the grounds of detention that challenge was laid on behalf of the detenue. This is precisely the situation on facts in the case in hand, and, it is precisely the submission of Mr. Mishra here which was advanced before their Lordships in re: Lourembam Busan Singh (supra). The contention was rejected by their Lordships falling back on the provisions of Section 5A of the Act as mentioned on reasoning given in the paragraph extracted hereinbefore. We are in respectful agreement with the reasoning given by their Lordships of the Division Bench of the Manipur High Court in re: Lourembam Busan Singh (supra).

On facts of the present case we do find that despite varying mention of grounds in support and the detention order itself where in the detention order and the grounds there is the difference that one specified ground under Section 3(2) of the Act that is to say the "acting in any manner pre-judicial to the maintenance of supply and services essential to the community" has been enumerated in the detention order in addition to maintenance of public order, whereas in the grounds there is mention of maintenance of public order alone and no mention of the other ground, the detention order cannot be held to be vitiated for non-application of mind inasmuch as the varying and additional ground mentioned in the detention order that does not find place in the grounds would be severable from other that find consistent mention both in the detention order and the grounds by virtue of section 5A of the Act. The order of detention would still be valid on the consistent one ground, that is, maintenance of public order mentioned in the detention order as well as the grounds that are also supported by relevant material. None of the two limbs of attack brought by Sri Mishra to the detention order can survive in the opinion of this Court looking to the provisions of Section 5A of the Act. We thus hold that the detention order is not invalid on account of non-application of mind by the Detaining Authority on ground that varying grounds have been mentioned in the detention order and the grounds of detention. Likewise we also hold that the mention of an irrelevant ground, that is to say, law and order along with maintenance of public order in the ground of detention would also not vitiate the subjective satisfaction of the Detaining Authority as the irrelevant ground of law and order would be severable with the aid of Section 5A of the Act and the detention order would hold good on the ground of public order supported by relevant material before the Detaining Authority and enclosed as annexures to the grounds of detention.

Sri D.S. Mishra has next contended that subjective satisfaction of the Detaining Authority is also vitiated on the ground that there is non-application of mind on part of the Detaining Authority to the fact that there was no real likelihood of the petitioner being released on bail, and, further that once released on bail he would again indulge in acts prejudicial to the maintenance of public order. Learned counsel has invited the attention of this Court to the satisfaction on this score recorded by the Detaining Authority in the grounds of detention at page 22 of the paper book, specifically to the third paragraph, which reads thus (in Hindi vernacular):

^^vkids }kjk fd;s x;s bl d`R; dks ysdj cSad [email protected] {ks= dh turk esa Hkkjh vkdzks'k QSy x;k rFkk turk esa ng'kr dk ekgkSy O;kIr gks x;kA turk ds [email protected]; deZpkjh tks ?kVuk LFky ds vkl ikl vius dk;Z dks dj jgs Fks Mj ds dkj.k Hkkx x;sA vkl ikl ds xkaoksa esa ng'kr dk ekgkSy O;kIr gks x;kA ?kVuk ds izfr'kks/k esa dLck fla/kkSyh esa nqdku ,oa izfr"Bkuksa dk O;kikj izHkkfor gqvkA fla/kkSyh dLos dh yksd O;oLFkk ds vuqj{k.k esa vfrfjDr iqfyl cy M~;qVh ij yxk;k x;kA^^

Sri D.S. Mishra has also referred to paragraph 17 of the writ petition where it has been averred that the petitioner was not in jail merely in connection with Case Crime No. 740 of 2017 that moved the authority to pass the detention order but that he was remanded to custody once arrested in connection with case crime nos. 336/2015, 1065/2015, 437/2017, 126/2009, 91/2006, 1582/2016, 765/2017, 988/2017, where in none of these crime the petitioner had even moved an application for bail by 14.06.2017 when the detention order came to be passed. The submission of Sri Mishra is, therefore, that the satisfaction of the Detaining Authority that there was a real likelihood of the petitioner being released from jail on bail is based on no material and also betrays lack of application mind. The aforesaid assertion in paragraph 17 of the affidavit has been answered by the Detaining Authority in paragraph 15 of his counter affidavit. The fact of moving the bail application in case crime no. 740 of 2017 before the date of detention order has been specifically met by saying that the bail application was moved on 31.05.2017.

Sri D.S. Mishra in support of his contention here has relied upon a Division Bench decision of this Court in Chand and another v. State of U.P. and others, 2017 (3) JIC 482 (All) where after an extensive survey of authority on the issue involved that is to say the requirement of subjective satisfaction of the Detaining Authority as to the real likelihood of the detenue being released on bail, this court held in paragraphs 19 and 20 of the report:

"19. What follows from the above is that a valid preventive detention order passed against a person in judicial custody must fulfill the conditions spelt out herein above by the Apex Court in its numerous pronouncements on the issue and one such essential condition is that there should be real possibility of the person being released on bail.

20. In the present case the detaining authority has merely mentioned in the grounds of detention that the petitioner no. 1 was making efforts to obtain bail from the District & Sessions, Muzaffarnagar for hearing of his bail application and there was possibility of the petitioner no.1 indulging in similar activities prejudicial to the maintenance of public order on his coming out of jail. He has not recorded his satisfaction in the impugned order that there was any real possibility of his being released on bail which omission in our opinion has totally vitiated the impugned order. Recording of his satisfaction in the impugned order that on being released on bail, there was a strong possibility of his indulging in similar activities prejudicial to the public order would not validate the impugned order."

(Emphasis supplied)

The submission, therefore, of the learned counsel is that in the absence of bail applications relating to other crimes detailed herein before in relation to which the detenue is also remanded to judicial custody, the Detaining Authority had no objective material before him to conclude that there was a real likelihood of the petitioner being released on bail. We do not think that the aforesaid contention based on a good principle of law is one of universal application without reference to the facts of a given case.

The fact that no bail application had been moved in the other crimes mentioned in paragraph 17 of the writ petition and which find particular reference in the grounds of detention also, in the opinion of this Court cannot lead to a conclusion that there was no material before the Detaining Authority on the basis of which the said authority could conclude as to the likelihood of the petitioner being released on bail.

This Court is of opinion that the question whether the Detaining Authority had arrived at a valid subjective satisfaction that there was likelihood of release of the detenue on bail is to be tested on the facts and circumstances of each case and further that the mere rejection or the non-pendency of a bail application made by a detenue is not in itself determinative of the fact that the Detaining Authority had no material before it to form subjective satisfaction about the real likelihood of the detenue being released on bail. The law in this regard has been succinctly laid down by the Supreme Court in Ahmad Nassar vs. State of Tamil Nadu and others, AIR 1999 (SC) 3897. In this connection paragraphs 44A to 46 may profitably be referred:

" 44-A. We have already observed in the matter of testing satisfaction of any detaining authority, it has to be tested on the facts and circumstances of each case. Examining the facts in the present case, we find in para 7 of the counter affidavit filed on behalf of respondent No.l (State) by Mr. S. Retnaswamy, Deputy Secretary to Government, Public Department, Government of Tamil Nadu, Chennai-9 it is stated :

"....It is further submitted that the detaining authority has considered the bail application of the detenu dated 1.4.1999 and arrived at the subjective satisfaction that there is likelihood of the release of the detenu on bail and hence it cannot be staled that there is non-application of mind on the part of the detaining authority."

45. So before the detaining authority, there existed not only order dated 12.4.1999 rejecting his bail application but the contents of the bail application dated 1.4.1999. The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail ap-plication was then pending is no premise to hold that there was no likelihood of his being released on bail. The words "likely to be released" connote chances of being bailed out, in case there be pending bail application or in case, if it is moved in future, is decided. The word "likely" shows it can be either way. So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material for arriving at any conclusion. The contents of bail application would vary from one case to the other, coupled with the different set of circumstances in each case, it may be legitimately possible in a given case for a detaining authority to draw an inference that there is likelihood of detenu being released on bail. The detention order records :-

"The Administrator of the National Capital Territory of Delhi is aware that you are in judicial custody and had not moved any bail application in the Court(s) after June 9, 1992 but nothing prevents you from moving bail applications and possibility of your release on bail cannot be ruled out in the near future. Keeping in view your modus operandi to smuggle gold into India and frequent visits to India, the Administrator of the National Capital Territory of Delhi is satisfied that unless prevented you will continue to engage yourself in prejudicial activities once you are released."

46. Thus we hold the conclusion of the detaining authority on the facts of the present case, "there is likehood of his being released on bail" cannot be said to be based on no relevant material.

This Court is of opinion that the law laid down in re: Ahmad Nassar (supra) is binding authority for the proposition that the validity of an order of detention on the issue of subjective satisfaction of the Detaining Authority that there is likelihood of release of the detenue on bail has to be tested on the facts and circumstances of each case; secondly, that despite rejection of a bail application of the detenue by the Court it is open to the Detaining Authority to form his subjective satisfaction based on the contents of the bail application bearing in mind the circumstances that there is likelihood of the detenue being released on bail, in the third place that the fact that no bail application was pending at the time when the detention order was made is no premise or ground to hold that there was no likelihood of the detenue being released on bail; and in the last, that the words "likely to be released" connote a chance of being bailed out in case a bail application is pending or in case it were moved in future and decided.

This Court is of opinion on a perusal of the grounds of detention that the Detaining Authority was alive to the fact that the detenue was in jail on the date when the detention order was made, and, also that he had moved for bail in the crime giving rise to the detention that was then pending and irrespective of that, looking to the facts of his case, particularly relating to other crimes committed by him and his resourcefulness, there was likelihood of the petitioner being released on bail. This Court finds that the satisfaction of the Detaining Authority hinges on the word 'likely' which in re: Ahamed Nassar (supra) has been held by their Lordships of the Supreme Court to mean that the result of an application to be release on bail could be either way, and, therefore, power to preventively detain could be exercised on a subjective satisfaction of a likelihood of release on bail with a view to eschew taking of that risk where the event of in the "likelihood" goes in favour of the detenue.

This Court also finds on a perusal of the grounds of detention and the materials referred to therein that going by the type of crimes committed by the detenue in the past there was also a real likelihood that the detenue once released on bail would indulge in similar acts that would lead once again to disturbance of public order. The Detaining Authority has taken into consideration the report of sponsoring authority dated 14.06.2017 who has in particular referred to five crimes out of the list of 18, each of the kind where resorting to violent acts the detenue had indulged in acts such as grabbing a mobile tower of the Airtel company and raising an extortion demand of diesel oil from the technician posted at the tower; another incident of doing violence to two Engineers of the Electricity Department on 20.04.2016 upon their refusal to oblige the detenue with some illegal favour in official work that led to widespread resentment amongst employees of Electricity Department; forcefully enslaving poor persons and compelling them to work for him without wages, that is, indulging in "Begar", a form of labour that is constitutionally prohibited and against contemporary conscience of the society; an act on 18.04.2017 where the detenue illegally grabbed land of a certain Javed Ali and threatening him with death in that connection; an act where the detenue had secured a fire arm license of 315 bore rifle by showing a false address other than his real one in order to conceal his criminal history for the purposes of misleading the Licensing Authority.

The sponsoring authority in his report that has been taken into consideration by the Detaining Authority has recorded that after the Detenue's arrest, two persons who did not earlier speak out for the Detenue's fear had reported to the police vide case crime no. 988 of 2017, under Sections 147, 148, 149, 307, 506, 447 IPC, P.S. Sindhauli, District Shahjahanpur that the Detenue had murdered the brother-in-law of the complainant and illegally grabbed land bearing Gata No. 736 admeasuring 0.761 Hectares. It is also mentioned by the sponsoring authority in his report that another person by the name Brij Kishore post arrest of the Detenue got Case Crime No. 1000/2017, under Sections 447, 504, 506 IPC, P.S. Sindhauli, District Shahjahanpur registered reporting that the detenue had illegally grabbed the informant's agricultural land that the latter had purchased through a registered sale deed by use of force and was forcibly tilling that land and harvesting crop by muscle power.

It is on the basis of all this material that the Detaining Authority has formed his subjective satisfaction as to the precipitate crime that led to the detention order, that in case the petitioner is released on bail of which there is real likelihood he would again indulge in acts subversive to the maintenance of public order. We find on facts and materials that appear on record that the subjective satisfaction of the Detaining Authority in proceeding to pass the detention order is based on relevant material and is well within the para-meters determined for exercise of power under section 3(2) of the Act.

This brings us to last ground of challenge to the detention order urged by Sri D.S. Mishra. Learned counsel for the petitioner has submitted that his representation to the State Government submitted through the Jail Superintendent has not been responded to by a communication about its disposal, to the detenue. He further submits that petitioner has firm belief and faith on reasonable ground that in fact the State Government have not disposed of his representation with quick dispatch; also that the petitioner's representation has not been dealt with quick dispatch and disposal at various steps and stages by the State Government leading to violation of Articles 22(5) and 21 of the Constitution besides provisions of the Act. Learned counsel for the petitioner has specifically depended upon paragraph 35 of the petition to say that it is his specific case that his representation to the State Government has not been dealt with requisite dispatch as mandated by law. Paragraph 35 of the petition reads as under:

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A perusal of the counter affidavit filed on behalf of the State Government shows that the entire calender of efforts relating to disposal of the petitioner's representation has been set forth in paragraphs 6, 7, 8, 9 and 10 of the counter affidavit. The aforesaid paragraphs are being extracted below:

"6.That it is submitted that the a copy of petitioner's representation dated 20.06.2017 along with parawise comments was received in the concerned Section of State Government on 30.06.2017 along with letter of District Magistrate, Shahjahanpur dated 29.06.2017. The State Government sent copies of the representation and parawise comments thereon to the Central Government, New Delhi vide its separate letters dated 30.06.2017. Thereafter, the concerned section, that is Home (Gopan) Anubhag-5 of the State Government examined the representation on 04.07.2017.

7. That it is further stated the section Home (Gopan) Anubhag-5 examined the representation on 05.07.2017 and Under Secretary examined the representation on 06.07.2017 (Dates 08.07.2017 and 09.07.2017 were holiday Saturday and Sunday.) and submitted it to the Secretary. The Secretary, Government of Uttar Pradesh, Lucknow examined the said representations on 11.07.2017. Thereafter the file was submitted to the higher authorities for final orders of the State Government. After due consideration, the said representation was finally rejected by the State Government on 12.07.2017.

8. That it is further stated that the information of rejection of representation was communicated to the petitioner through District authorities by the State Government radiogram dated 12.07.2017.

The facts mentioned above, show that the representation of the petitioner has been dealt with expeditiously at every stage by the State Government. Averments to the contrary are denied.

9. That, it is submitted that the U.P. Advisory Board, Lucknow vide its letter dated 07.07.2017, informed the State Government that the case of the petitioner would be taken up for hearing on 13.07.2017 and directed the petitioner be informed that if he desired to attend the hearing before the U.P. Advisory Board along with his next friend (non-advocate), he could do so and be allowed to take his next friend (non-advocate) along with him if he had so requested. This fact was accordingly communicated to the petitioner through district authorities by the State Government radiogram dated 10.07.2017. The petitioner appeared for hearing before the U.P. Advisory Board on the date fixed as 13.07.2017. The U.P. Advisory Board, on the said date fixed, heard the petitioner in person and gave its report along with opinion that there is sufficient cause for the preventive detention of the petitioner under the National Security Act, 1980. This report and the records of the case were received in the concerned section of the State Government on 31.07.2017 through the letter of Registrar, U.P. Advisory Board (Detentions) letter dated 28.07.2017 well within seven weeks from the date of detention of the petitioner, as provided in Section 11(1) of the Act.

10. That it is further stated that on receipt thereof, the State Government once again examined afresh the entire case of the petitioner along with the opinion of U.P. Advisory Board and took a decision to confirm the detention order and also for keeping the petitioner under detention initially for a period of three months from the date of actual detention of the petitioner i.e. since 14.06.2017. Accordingly, orders of confirmation and for keeping the petitioner under preventive detention of three months tentatively from the date of his actual detention under the said Act, were issued by the State Government through rediogram and letter, both dated 02.08.2017 (Annexure No.1 of this counter affidavit)."

Learned counsel for the petitioner has invited the attention of this Court in particular to paragraph 6 of the counter affidavit where it is stated that petitioner's representation dated 20.06.2017 that was submitted to the Detaining Authority through the Jail Superintendent on 20.06.2017 was forwarded by the Detaining Authority along with his letter dated 29.06.2017 together with his comments. The petitioner's representation was received in the concerned section of the State Government on 30.06.2017 along with comments and the letter of the District Magistrate dated 29.06.2017. The representation aforesaid was rejected by the State Government on 12.07.2017 and communicated to the district authorities by the Government by Radiogram on 12.07.2017. Sri Mishra contends that though the State has attempted to explain the delay or time consumed during various stages of the disposal of the detenue's representation, he has pointed out that there is no explanation for the period of 9 days between submission of the petitioner's representation to the Detaining Authority on 20.06.2017 and its dispatched to the State Government on 29.06.2017 along with letter of the Detaining Authority of that date.

It is true on facts that a perusal of paragraph 6 of the counter affidavit does not explain as to what took the District Magistrate nine days in forwarding the detenue's representation to the State Government. There is not a word said in the counter affidavit about what happened during this period of nine days. We do not find any explanation whatever for the period of nine days forthcoming from the State. The principle of law applicable in the matter of delay as a vitiating factor to the continued detention of a person has its root in Article 22 (5) of Constitution that requires disposal of a detenue's representation "as soon as may be". The said principle does not postulate delay in itself as a vitiating factor but requires explanation of the time spent in disposal of the detenue's representation. Thus by now it has come to be well settled that even a long span of time well explained may not vitiate the detention, whereas a small period of time in the matter of disposal of detenue's representation that remains unexplained would vitiate the detention as it would fall foul of the mandate of Article 22 (5) of the Constitution requiring disposal of a detenue's representation "as soon as may be". The law on the point has been summed up by the Supreme Court in Ummu Sabeena vs. State of Kerala and others, (2011) 10 SCC 781, where in paragraphs 7 to 11 of the report it is said thus:

"7. Reference in this connection may be made to the Constitution Bench decision of this Court in the case of K.M. Abdulla Kunhi Vs. Union of India & Ors, 1991 (1) SCC 476. The unanimous Constitution Bench, speaking through Justice K. Jagannatha Shetty, after noting the Constitutional provisions under sub-clauses (4) and (5) of Article 22, was pleased to hold that neither under the Constitution nor under the relevant statutory provision has any time limit been fixed for consideration of representation made by a detenu. The time limit, according to the Constitution Bench, has been deliberately kept elastic. But the Constitution Bench laid emphasis on the expression 'as soon as may be' in sub-clause (5) of Article 22 and held that the said expression sufficiently makes clear the concern of the framers of the Constitution that the representation should be very expeditiously considered and disposed of with a sense of urgency and without any avoidable delay.

8. Considering the aforesaid provision, the Constitution Bench held that: (IK.M. Abdulla case, SCC 484, para 12)

"......there should not be any supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal".

In support of the said conclusion, the learned Judges of the Constitution Bench relied on various other judgments mentioned in Para 12 at page 484 of the report.

9. In a subsequent judgment in the case of Rajammal Vs. State of T.N. & Anr. (1999) 1 SCC 417, a three Judge Bench of this Court, relying on the ratio of the Constitution Bench decision in Abdulla Kunhi, reiterated the same principles. From Para 9 at page 421 of the report, it would appear that in the case of Rajammal, the Minister concerned, while on tour, received the file after 9.2.1998 and then passed the order on 14.2.1998. No explanation was offered for this delay of about five days. This Court held that such delay has vitiated further detention of the detenu [see para 11 at page 422].

10. In another subsequent judgment of this Court in the case of Kundanbhai Dulabhai Shaikh Vs. Distt. Magistrate, Ahmedabad & Ors., (1996) 3 SCC 194, this Court while reiterating the aforesaid principles, found that representation was received by the Central Government on 21.09.1995 and then comments were called for from the State Government and the same were received by the Central Government on 18.10.1995 and the representation was rejected on 19.10.1995. This Court held in para 22 of the judgment at page 204 that the internal movement of the file thus took four days and this Court found that this inaction in taking up the representation for six days is unexplained and the mere ground was that there were forty or fifty representations pending for disposal is not a valid justification. This Court found that such delay voids the continued detention of the detenus and the detention order was quashed.

11. Going by the aforesaid precedents, as we must, we hold that the procedural safeguards given for protection of personal liberty must be strictly followed. The history of personal liberty, as is well known, is a history of insistence on procedural safeguards. Following the said principle, we find that delay in these cases is for a much longer period and there is hardly any explanation. We, therefore, have no hesitation in quashing the orders of detention on the ground of delay on the part of the Central Government in disposing of the representation of the detenus"

The exposition of law by their Lordships of the Supreme Court following the principle laid down by the Constitution Bench in K.N. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 is so crystal clear that it leaves us in no manner of doubt that any unexplained delay vitiates further detention of the detenue. In this case we have found on facts that there is a unexplained delay of 9 days on the part of the Detaining Authority in forwarding the detenue's representation to the State Government between 20.06.2017 and 29.06.2017 which renders the continued detention of the detenue bad.

Before parting with the matter we are constrained to say that we have found the detention as made to be perfectly legal and for very good reasons. It is only on account of sheer callousness on the part of the Detaining Authority in not promptly forwarding the detenue's representation to the State Government that a procedural safeguard has come to his aid rendering his further detention bad in law. However, that does not mean that the basis and material on which the Detaining Authority acted to pass the detention order stands negated. We hold that on the basis of facts and materials that led to the detention order being made survive this judgment of ours, and, in case the authorities still find in their subjective satisfaction reason to take action afresh under the Act, the Detaining Authority would be free to do so strictly in accordance with law and unaffected by the event in this petition.

In the result this petition is allowed. Rule is made absolute. The continued detention of the petitioner pursuant to the detention order dated 14.06.2017 is declared illegal. The petition is directed to be set at liberty unless wanted in connection with any other case.

Let a copy of this order/judgment be forwarded to the Chief Secretary, Govt. of U.P., Lucknow, Principal Secretary, Home, Govt. of U.P., Lucknow and District Magistrate, Shahjahanpur for compliance and necessary follow up action.

Order Date :- 14.12.2017

Imroz