1

AFR
Reserved
Court No.40

Case :- HABEAS CORPUS WRIT PETITION No. - 2843 of

2015
Petitioner :- Pankaj
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vivek Kumar Singh,Mayank Yadav
Counsel for Respondent :- Govt.Advocate,A.S.G.I.
(2015/0084),Arvind Kumar Goswami,Jogendra Prasad

Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.
(Delivered by Hon'ble Bala Krisnha Narayana,J.)
The petitioner Pankaj has filed this writ petition with a prayer to
issue a writ, order or direction in the nature of habeas corpus
commanding the respondents to release the petitioner from their illegal
detention in pursuance of the order dated 15.11.2014 and set him at
liberty forthwith. Further prayer has been made for quashing the
impugned order dated 15.11.2014 passed by respondent no.3 in the
exercise of his power under Section 3(3) National Security Act,
hereinafter referred to as NSA.
We have heard learned counsel for the petitioner, learned AGA
appearing for the respondents no. 1,3, 4 and 5 and learned counsel
the Union of India/ respondent no.2 and perused the pleadings of the

parties.
The brief facts of this case are that upon receiving information
from the police informer about the illegal activities of the petitioner who
was a dare devil criminal and a liquor smuggler engaged in illegal
activity of smuggling illicit liquor from Haryana to his village Phugana
and selling the same to the residents of the nearby villages,
consumption whereof had been endangering the health and lives of the
villagers, S.O.- Ved Prakash Giri, S.I.- Sheetal Kumar Sharma, S.I.Vinod, S.I. Yogendra Singh, Constable 882, Muzammil, Constable
1054 Yogesh Kumar, Constable 1144 Vikrant, Constable 1350 Nitin,
Constable 1066 Amt, Constable 953 Pankaj Tomar, Constable Driver
Giri Prasad and Head Constable Jaipal Singh of 1-1/2 Section 23
Battalion D Company left for petitioners village Phugana in their
government and contract vehicles respectively on 22.10.2014. On way
to the petitioners village they met Deepak son of Ram Singh, r/o Kokar
pur, P.S. Chajlait, Moradabad and Sri Bobby, s/o of Rajendra, r/o
Nirauli, P.S. Jaarja, District Noida who stopped their vehicles and who
after introducing themselves as employees of government country
made liquor shop informed them that a fresh consignment of country
made liqour had been delivered to Pankaj (petitioner) in his house in
village Phugana. Believing the aforesaid information to be true S.H.O.
Phugana and other members of his force proceeded towards the
petitioner's house in village Phugana, after the information given to

them by Deepak and Bobby Singh was confirmed by one Basant and
and on reaching there they saw the petitioner pushing two plastic
boxes into his house. When the members of the police force tried to
apprehend him, he ran into his house leaving the boxes behind and
started shrieking on which his wife Smt. Archana, and his mother Smt.
Rajgiri came out of the house and prevented the police personnel from
entering into the petitioners house by closing its main iron door. From
the search of the first box, the police personnel recovered 412 plastic
bottles of country made liquor on each of which a label was pasted on
which Raseela Santara, Gram Badhauli, District Ambala, Harayana
and for sale in Harayana only" was printed. The search of second box
led to recovery of 21 bottles on which also labels of Raseela Santara
was pasted. The recovered articles were kept back in the same boxes
and sealed by the police personnel, who thereafter ordered the
petitioner to come out of his house on which he climbed up to the third
floor of his house and started hurling abuses at the members of the
police force and when they requested him to stop abusing them, the
petitioner, his wife and his mother started pelting stones and brick bats
at them, exhorting them to go away. When the police again requested
the petitioner to stop his activities, he started firing at the members of
the police force from his country made pistol which forced them to take
steps for saving their lives. In the meantime S.O., Phugana informed
the higher police officers about the incident by his mobile phone

whereupon S.P. R.A. Sri Alok Priyadarshi, C.O., Budhana and C.O.,
Phugana, Incharge inspector, P.S. Bhorakalan, Sri Anil Kumar,
Incharge Inspector, P.S.-Budhana, Sri Dhananjaya Mishra Incharge
Inspector and S.I. Smt. Kusum Bhati

along with lady constables

arrived at the place of incident with their respective forces. The police
officers present on the spot tried to persuade the petitioner through
public address system to stop his activities but he was not in a mood to
listen to anyone and continued to fire at the members of the police
force along with his wife and mother and again exhorted them to go
away otherwise they would loose their lives. As a result of firing by
them, fear pervaded the village and there was commotion all over.
Children and ladies on hearing the sound of the pistol shots got scared
and hid themselves in their houses closing windows and doors thereof.
As a result of the petitioners activities public order was totally
disturbed. The members of the police force, had to fire tear gas shells
and rubber bullets in self defence. In the meantime upon hearing about
the incident, S.P. Police (Crime) and S. P., City also reached the place
of occurrence and tried to cajole the petitioner and his relatives to
surrender but they continued to pelt stones and fire at the members of
the police force.

In the meantime Incharge Inspector, P.S.-Khatauli

Sunil Kumar Tyagi and S.H.O., Mansoorpur, Yogesh Sharma along with
their forces also reached the place of occurrence. The petitioner on
realizing that his house had been surrounded by the members of the

police force from all sides, agreed to surrender. However taking

advantage of the on going talks between the petitioner and the
members of police force, his wife and mother stealthily climbed down
from the roof of their house and managed to escape. However, the
petitioner was arrested by the members of police force on the spot. In
the incident several police personnel received injuries. The personal
search of the petitioner by the police lead to recovery of 12 bore
country made pistol and four live cartridges of 12 bore and 6 live
cartridges of 315 bore from the right and the left pockets of his shirt.
The police force recovered another country made pistol of 315 bore
from the roof of the petitioners house apart from five empty cartridges
of 315 bore and five live cartridges of 12 bore bullets. The recovered
items were packed and sealed separately and recovery memo was
prepared on the spot. On the basis of the First Information Report
lodged by S.O.- Ved Prakash Giri, case crime no. 181 of 2014 under
Sections 307, 504, 506, 323, 353, 336,34 IPC, case crime no. 182 of
2014 under Section 25 Arms Act and case crime no. 183 of 2014 under
Section 60 of Excise Act were registered against the petitioner, his wife
and his mother at P.S. Phugana, District Muzaffarnagar and the
petitioner was sent to District Jail, Muzaffar Nagar.
While the petitioner was in District Jail, Muzaffar Nagar on
account of his being accused in the aforesaid criminal cases, he was
served with the impugned order dated 15.11.2014 passed by

respondent no.3 in the exercise of his power under Section 3(3) of the
N.S.A. along with the grounds of detention under Section 8 of the
N.S.A. on the same day.
The petitioner submitted detailed representations on 26.11.2014
to the State Government and Union of India through Superintendent,
District Jail, Muzaffar Nagar (Annexure-7).
The detention order was approved by the State Government
vide order dated 24.12.2014 (Annexure-8).
The petitioner appeared before the U.P. Advisory Board on
13.12.2014 in response to the letter of the State Government dated
03.12.2014. The detention order was approved by the U.P. Advisory
Board as would be evident from the letter of Registrar, U.P. Advisory
(Detention) letter dated 17.12.2014. Upon receipt of the report of the
U.P. Advisory Board, the State Government again examined the
petitioner's case afresh along with the opinion of the U.P. Advisory
Board and took a decision to confirm the detention order and for
keeping the petitioner under detention for a period of two months from
the date of actual detention of the petitioner i.e. 15.11.2014 vide
radiogram

letter

dated

24.12.2014.

The

representation

dated

26.11.2014 made by the petitioner before the Central Government

along with parawise comments of the detaining authority District
Magistrate, Muzaffarnagar was forwarded by him to the Central Govt.

(Ministry of Home Affairs) along with his letter dated 28.11.2014 which
was received in the concerned section of the Ministry of Home Affairs
on 04.12.2014. The report envisaged under Section 3(5) of the NSA
was received by the Central Government by the concerned section of
Ministry of Home Affairs on 08.12.2014 vide State Government's letter
dated

24.11.2014.

On

receiving

the

same,

the

petitioner's

representation along with parawise comments was processed

for

consideration of the Union Home Secretary. The Union Secretary, NSA

forwarded his comments to the Joint Secretary (Security) on
08.12.2014 and thereafter alongwith the comments of Joint Secretary
(Security) file was sent to Union Home Secretary on 09.12.2014. The
petitioner's representation was rejected by Union Home Secretary on
10.12.2014, information whereof was given to the petitioner on
11.12.2014 by post through Superintendent District Jail, Moradabad
with the request to serve the copy of the same on the detenu.
Learned counsel for the petitioner submitted that the subjective
satisfaction of the respondent no.3 (detaining authority) recorded in the
impugned order is based upon insufficient non-existent and irrelevant
grounds.
He next submitted that the District Magistrate, Moradabad has
not applied his mind to the facts of the case and the material on record
and he has passed the impugned order in a mechanical manner on the

basis of the reports submitted to him by the police authorities. The

satisfaction recorded by the detaining authority in the impugned order
that there was strong possibility of the petitioner being released on bail
and after being released on bail, the petitioner shall again indulge in
dare devil activities prejudicial to maintainance of public order and
likely to disturb public order in the localities within the area of P.S.
Phugana, which would further disturb the public order in District
Muzaffarnagar is not based upon any material.
Learned counsel for the petitioner lastly submitted that the
detention of the petitioner under the NSA only on the basis of a single
criminal case in which no public order was involved and it was only a
case relating to law and order is per-se illegal and unsustainable in the
eyes of law.
Per contra, learned AGA submitted that there is no illegality or
irregularity in the impugned detention order which is evident from the
perusal of the facts mentioned in the counter affidavits filed by the
respondents. The satisfaction recorded by the detaining authority in the
impugned order for passing an order of preventive detention against
the petitioner is based on relevant materials. The incident totally
disturbed the maintenance of public order and it is absolutely
misconceived to plead that the present case is one relating to law and
order. The impugned order was passed by the respondent no.3 only

after he was fully satisfied on the basis of the material produced before
him that there was very strong possibility of the petitioner being
released on bail and on his release, he would again commit dare devil
act which would disturb the maintenance of public order, not only in the
localities within the area of P.S. Phugana but also in the entire district
of Muzaffarnagar.
We have heard learned counsel for the parties and perused the
impugned order as well as the other material brought on record and the
law reports cited before us to which we will refer as and when the
context requires.
The Apex Court in the case of Pebam Ningol Mikoi Devi Vs.
State of Manipur and others reported in (2010) 9 Supreme Court
Cases 618

has examined the scope of Judicial review of the

subjective satisfaction of detaining authority. Paragraph 21 of its verdict

rendered in the aforesaid case, which is relevant for our purpose is
being reproduced herein below
21. To decide the correctness or otherwise of the detention
order, two issues of importance arise before this Court. The first is,
regarding the documents and material on which reliance was placed by
the detaining Authority in passing the detention order. Secondly, with
those materials, the detaining authority was justified in arriving at a
finding that the detenu should be detained under the National Security Act
without any trial. In matters of this nature, this Court normally will not
go into the correctness of the decision as such but will only look into

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decision making process. Judicial review, it may be noted, is not an

appeal from a decision but review of the manner in which the decision
was made. The purpose of review is to ensure that the individual
receives a fair treatment.
We now proceed to examine some of the decisions of the Apex
Court which may have relevance in determining in what manner such
subjective satisfaction of the Authority must be arrived at, in particular
on Section 3(2) of the National Security Act. In Fazal Ghosi v. State of Uttar
Pradesh, (1987) 3 SCC 502, this Court observed that: "The District

Magistrate, it is true, has stated that the detention of the detenus was
effected because he was satisfied that it was necessary to prevent
them from acting prejudicially to the maintenance of public order, but
there is no reference to any material in support of that satisfaction. We
are aware that the satisfaction of the District Magistrate is subjective in
nature, but even subjective satisfaction must be based upon some
pertinent material. We are concerned here not with the sufficiency of
that material but with the existence of any relevant material at all."
(emphasis supplied) (Para 3).
In Shafiq Ahmed v. District Magistrate, Meerut, (1989) 4 SCC 556, the

Apex Court opined :- "Preventive detention is a serious inroad into the

freedom of individuals. Reasons, purposes and the manner of such
detention must, therefore, be subject to closest scrutiny and
examination by the courts." (emphasis supplied) (Para 5).

11

This Court further added:

"...there must be conduct relevant to the formation of the
satisfaction having reasonable nexus with the action of the petitioner
which are prejudicial to the maintenance of public order. Existence of
materials relevant to the formation of the satisfaction and having
rational nexus to the formation of the satisfaction that because of
certain conduct "it is necessary" to make an order "detaining" such
person, are subject to judicial review." (emphasis supplied) (Para 5).
In State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35, the Apex Court

held:
"...the grounds supplied operate as an objective test for
determining the question whether a nexus reasonably exists between
grounds of detention and the detention order or whether some
infirmities had crept in." (emphasis supplied) (Para 9).
In State of Rajasthan v. Talib Khan, (1996) 11 SCC 393, the Apex

Court observed that:

"...what is material and mandatory is the communication of the
grounds of detention to the detenu together with documents in support
of subjective satisfaction reached by the detaining authority."
(emphasis supplied) (Para 8).
The legal position that emerges from these rulings is that, there
must be a reasonable basis for the detention order, and there must be

12

material to support the same. The Court is entitled to scrutinize the

material relied upon by the Authority in coming to its conclusion, and
accordingly determine if there is an objective basis for the subjective
satisfaction. The subjective satisfaction must be two fold. The detaining
authority must be satisfied that the person to be detained is likely to act
in any manner prejudicial to the security of the State or from acting in
any manner prejudicial to the maintenance of the public order and the
authority must be further satisfied that it is necessary to detain the said
person in order to prevent from so acting.
In order to determine the validity of the impugned detention order
in the light of the principles laid down in the aforesaid decisions, it will
be necessary to examine the materials relied by the detaining authority
while passing the impugned detention order.
The impugned detention order as also the grounds of detention
under Section 8 do not indicate the documents which were supplied to
the petitioner along with the order of detention and the grounds of
detention under Section 8 of the N. S. A. on the basis of which the
detaining authority had formed its opinion for passing an order of
preventive detention against the petitioner who was already in judicial
custody on account of his being accused in three criminal cases,
namely, case crime no. 181 of 2014, under Sections 307, 504, 506,
333, 353, 34 and 336 IPC, case crime no. 182 of 2014, under Section

13

25 Arms Act and case crime no. 183 of 2014, under Section 60 Excise
Act, which arose from the same incident, we find that the petitioner has
also not stated in the writ petition that he was not supplied with the
documents upon which the detaining authority had recorded its
subjective satisfaction in the impugned order.
However, our attention was drawn by the learned AGA to the
report of S.H.O., P.S. Phugana, District Muzaffarnagar dated
12.11.2014, copy where of has been brought on record by the
petitioner as Annexure-2 to the writ petition, which was forwarded by
him to the sponsoring authority, namely, S.S.P. Muzaffarnagar which
mentions as many as 45 documents which were forwarded by him to
the S.S.P., Muzaffarnagar on the basis of which he had recommended
that order of preventive detention should be passed against the
petitioner in order to prevent him from coming out of jail and indulging
in activities prejudicial to the maintenance of public order in the area.
From the perusal of the report of the S. S. P., Muzaffar Nagar /
Sponsoring Authority dated 14.11.2014 recommending for passing of
an order of preventive detention against the petitioner (Annexure-5 to
the writ petition), it transpires that the report of the S.H.O.,P.S.
Phugana, District Muzaffarnagar dated 12.11.2014 was also forwarded
by the S.S.P., Muzaffarnagar to the District Magistrate, Muzaffarnagar/
detaining authority along with his report. Thus the submission of

14

learned counsel for the petitioner that there was no material before the
detaining authority for recording his subjective satisfaction that there
was strong possibility of the petitioner being released on bail and after
coming out of jail he would again indulge in activities prejudicial to the
maintenance of public order is not based upon any material or on
irrelevant and insufficient material does not have any merit specially in
view of the fact that the petitioner has not cared to bring on record the
documents which find mention in the report of the S.H.O., P.S.
Phugana, District Muzaffarnagar dated 12.11.2014 which were
forwarded to the District Magistrate, Muzaffarnagar by the sponsoring
authority S.S.P., Muzaffarnagar along with his letter dated 14.11.2014
nor he has denied in the writ petition that the aforesaid documents
were not supplied to him.
We now proceed to examine the next submission of the learned
counsel for the petitioner that the present case was one of law and
order and not public order and the detention of the petitioner under
NSA on the basis of single criminal case is illegal.
What is public order has been explained by Hon'ble Apex Court in
paras 7 to 15 in the case of State of U.P. and another Vs. Sanjai
Pratap Gupta @ Pappu and others, (2004) 8 SCC 591, which is
quoted here as under:"The distinction between the areas of 'law and order' and 'public

15

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 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 question to ask is: "Does it lead
to disturbance of the current life of the community so as to
amount to a disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society
undisturbed" This question has to be faced in every case on its
facts.
"Public order" is what the French call 'ordre publique' and is
something more than ordinary maintenance of 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 (See Kanu Biswas v. State of West
Bengal (AIR 1972 SC 1656).

There is no such bar that a person can not be detained under the
National Security Act only for a single criminal case. In State of Punjab
Vs. Sukhpal Singh, (1990)1 SCC 35 the Apex Court has observed as
under:"Preventive order is devised to afford protection to society. The
object is not to punish a man for having done something but to
intercept before he does it and to prevent him from so doing. The
justification of such detention is suspicious or reasonable
probability and not criminal conviction which can only be
warranted by legal evidence. Thus, any preventive measures even
if they involve some restraint or hardship upon individuals, do not
partake in any way of the nature of punishment, but are taken by
way
of
precaution
to
prevent
mischief
to
the
state. .......................................

16

When power is given to an authority to act on certain facts and if

that authority acts on relevant facts and arrives at a decision,
which cannot be described as either irrational or unreasonable,
then the order is not bad and the court cannot substitute the
decision or opinion in place of the decision of the authority
concerned on the necessity of passing the order.
Considering the relevant facts and circumstances including the
time and place, the contents of detention order and the
allegations in the grounds of detention in this case, we are of the
view that non-registration of any criminal case is no bar to an
order of preventive detention and it does not reflect nonapplication of mind or absence of subjective satisfaction on the
part of detaining authority.
Thus what follows from the above is, that a person can be
detained under the NSA for a single criminal case alone and even if no
criminal case is registered. In the present case the detaining authority
has already recorded his subjective satisfaction for detaining the
petitioner on the ground that the solitary incident in which he was
involved had disturbed the current life of the community which had
disturbed

the

public

order.

The impugned order also shows that the detaining authority has
recorded its' subjective satisfaction for detaining the petitioner on the
ground that the incident had totally disturbed the public order in the
area and that the petitioner who was in judicial custody had moved his
bail application and there was real possibility of his being released on
bail and on his coming out of the jail he will again indulge in activities
which will disturb public order not only with the area of P. S. Phugana
but also in the whole district of Muzaffarnagar. Hence it cannot be said
that the order has been passed without application of mind.

17

Learned counsel for the petitioner has failed to demonstrate that

the aforesaid satisfaction recorded by the detaining authority in the
impugned order is unwarranted or vitiated in any manner.
For the aforesaid reasons, we do not find any reason to quash
the impugned order. The writ petition fails and is accordingly dismissed.
There shall however be no order as to costs.
Order Date: 15.10.2015
Abhishek Sri / HR.