Allowed

Danish v. State of U.P. and 5 Others

Allahabad HC15 Sept 2023HABC/1051/2022

Case brief

AI extract

What is this about?

This writ petition challenged the District Magistrate's detention order under the National Security Act against the petitioner. The High Court held that the incident involved only 'law and order' issues and did not disturb 'public order'. The court found the detaining authority failed to apply independent mind and record subjective satisfaction.

What did the court decide?

The impugned detention order and consequential extension orders were set aside; the petitioner was directed to be released forthwith if not wanted in any other case.

Danish Vs State of U.P. and 5 Others — Constitutional and Fundamental Rights | Allahabad HC (2023)

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A.F.R.

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Neutral Citation No. - 2023:AHC:200098-DB

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Court No. - 67

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Case :- HABEAS CORPUS WRIT PETITION No. - 1051 of 2022 Petitioner :- Danish Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Uttam Kumar,Nitin Sharma Counsel for Respondent :- G.A.,A.S.G.I.,Alok Ranjan Mishra

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Hon'ble Rahul Chaturvedi,J. Hon'ble Mohd. Azhar Husain Idrisi,J.

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(1). Heard Shri Nitin Sharma, Shri Uttam Kumar, learned counsel for petitioner and Shri Ghanshyam Kumar, learned A.G.A.-I for the State of U.P. as well as Shri Alok Ranjan Mishra, learned counsel for Union of India.

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(2). Pleadings have been exchanged between the parties and the matter is ripe for final submission. Perused the records and the written submissions advanced by respective counsels in support of their pleadings and arguments.

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(3). By filing the instant Habeas Corpus Writ Petition the petitioner is invoking the powers of Article 226 of the Constitution of India, with the prayer, to issue a writ, order or direction in the nature of Habeas Corpus directing the respondent authorities to produce the detenu-petitioner Danish son of Jameel Ahmad before this Court so that he may be set at liberty forthwith unless wanted in some other case. In addition to this a writ, order or direction in the nature of certiorari quashing the Order (No.05/J.A./N.S.A./2022) dated 06.09.2022 (Annexure No.7 to the writ petition) passed by the District Magistrate/Restraining Authority, Kanpur Nagar (respondent no.3) as approved by the State Government and the Advisory Board, which was later on extended from time to time.

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(4). Before appreciating the legal submissions advanced by the respective counsels, it is desirable to give a bird’s eye view to the factual aspects of the case:-

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FACTUAL MATRIX :

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(5). An F.I.R. was lodged by one Pratham s/o Mohar Singh on 15.7.2022 at 22.41 hours for the incident said to have taken place around 20.00 hours on the same date, which was registered as Case Crime No.342 of 2022, u/s 147, 148, 149, 298, 352, 324, 308, 504 I.P.C. and Section 7 of Criminal Law Amendment Act, against as many as 16 named persons, including the petitioner Danish, and 50 other unknown persons. The prosecution story mentioned in the F.I.R. in brief is, that the informant Pratham s/o Mohar Singh resident of Mohalla Pant Nagar, Police Station Bilhaur, Kanpur Nagar on 15.7.2022 around 08.00 in the evening, he along with his brother Rahul after having snacks from the roadside snack vendor, were coming back to their home. When they reached adjacent to Dr. Rahman’s residence, on five motorcycle Shadan s/o Naseem, Mohd. Zaid s/o Mohd. Hasim resident of Rajiv Nagar and Kasib Khan, Danish Khan, Hasim Khan, Tamil Khan, Jahid Khan, Kamil Khan, Daud Khan, Shahnawaj Khan, Arbaz Khan, Sohel Khan, Babu Khan, Arif Khan, Asif Khan s/o Tauhid Khan, Hasim Qurashi s/o Ramzan and 50 unknown persons, raising religious slogans and filthy abuses, assaulted the informant as well as his brother by sword, knife and butt of Tamancha.

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In this criminal transaction, the assailants have sliced the neck of informant’s brother Rahul and caused injuries to the informant. As a result of this attack, the entire locality was gripped into a severe panic and a charged atmosphere full of turmoil and upheaval.

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On this factual matrix, the F.I.R. was got registered against 16 named and 50 unknown persons, whereby the petitioner Danish is named at serial no.4. Interestingly, only the names of accused persons have been mentioned without giving their parentage or their respective addresses.

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(6). From the aforesaid, it is clear that this F.I.R. came into existence in the month of July, 2022. Needless to mention here that in June, 2022 city of Kanpur and Allahabad of the State of Uttar Pradesh have witnessed a severe communal tension on the eve of Nupur Sharma’s statement. It seems that the local police was extra vigilant and they tried to give colour to every minor scuffle as a result of communal disharmony and tension. In this process, the police have roped in 16 named persons who all belonging to a particular community, without naming their parentage and their addresses. This explicitly shows a typical ‘ modus operandi ’ of local police so that they may teach a bitter lesson to a particular community, argued by learned counsel for petitioner.

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(7). The petitioner was arrested on 20.7.2022 in connection with above case crime number and was released on bail by the learned District & Session Judge, Ramabai Nagar, Kanpur Dehat while allowing his Bail Application No.2127 of 2022 vide order dated 29.8.2022. From the bail order, it is culled out that the injured Rahul has sustained only two injuries which are simple in nature, whereas the informant Pratham has received four injuries and yet another injured Sandip has also sustained two injuries on his person. According to N.C.C.T. Scan report of injured Rahul, there is haematoma found over his head. Fact remains, that the medical reports of Pratham,

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Rahul and Sandip indicates that none of these injured have sustained any life threatening injuries over their person. In fact, there was scuffle between the two groups which has been given colour to communal tension and disharmony by the police, and therefore, the petitioner was granted bail by the learned Sessions Judge.

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(8). In order to justify the conduct local police, as a last resort, after getting a green signal from the higher police authorities, the Incharge Inspector, Police Station Bilhaur, Kanpur Outer have prepared an undated report addressed to S.P. Kanpur Outer for initiating the proceeding 3(2) of National Security Act, 1980. It is urged by learned counsel for petitioner that a small incident of two groups of course belonging to different communities was magnified by manifolds by local police and the In-charge Inspector have prepared a detailed report mentioning therein that “after holding a detailed investigation” the police have submitted a charge sheet against 12 named accused persons, including the petitioner Danish u/s 147/148/149/298/352/ 324/307/504/34 I.P.C. and Section 7 of Criminal Law Amendment Act and submitted its report on 30.8.2022 for initiating the proceedings u/s 3(2) of National Security Act only against Danish. We have perused this report of the In-charge Inspector (annexed as Annexure-3 to the petition). The salient features of the said report is quoted herein below :

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“ उक्त लोक व्यवस्था छि�न्न - छि�न्न करने वाली घटना की खबर न्यूज चैनलों में प्रसारिरत होने से घटनास्थल तथा उसके आसपास के क्षेत्रों में �य का माहौल पैदा हो गया। आम जनता में असुरक्षा की �ावना पैदा हो गयी। सामान्य जन - जीवन अस्त व्यस्त हो गया। जनपद तथा प्रदेश स्तर पर इस साम्प्रदायियक घटना की विवछि�न्न माध्यमों से चारो तरफ चचा8 होने लगी। इस वी�त्स घटना से घटनास्थल के आस - पास के क्षेत्रों में आवागमन ठप्प हो गया तथा सामान्य जन जीवन अस्त व्यस्त हो गया। घटनास्थल व आस - पास के क्षेत्रों में लोक व्यवस्था पूरी तरह छि�न्न - छि�न्न हो गयी। जिजसे सं�ालने के लिलए जनपद फर्रू8खाबाद , इटावा , कन्नौज , कानपुर कविमश्नरेट , कानपुर आउटर के विवछि�न्न

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थाना क्षेत्रों से �ारी पुलिलस बल तैनात विकया गया। शासन - प्रशासन के काफी अथक प्रयास के पश्चात आम जन - जीवन सामान्य हो पाया एवं लोक व्यवस्था सामान्य हो पायी। विदनांक 16.07.2022 समय 10.18 बजे तत्कालीन प्र�ारी विनरीक्षक अरविवन्द सिंसह जिससौविदया द्वारा देखरेख शान्तिन्त सुरक्षा व्यवस्था व रोकथाम जुम8 जरायम के उपरांन्त रो०आम में अंविकत विकया गया विक घटनास्थल पर पुलिलस बल के साथ पहुंचा तो अछि�युक्त व उनके साथीगणों द्वारा कारिरत की गयी , घटना से कस्बा विबल्हौर व आसपास की लोक व्यवस्था �ंग होकर यातायात व आवागमन बंद हो गया लोगों द्वारा अपने घर के दरवाजों को बंद कर लिलया गया। दुकानों के शटर आविद बंद होकर बाजार की लोक व्यवस्था छि�न्न छि�न्न हो गयी तथा आवागमन यातायात बंद हो गया जिजसकी सूचना उच्चायिJकारीगण को दी गयी। विवछि�न्न थानों एवं जनपदों की पुलिलस फोस8 को लोक व्यवस्था को पुनः सुचार्रू र्रूप से बनाये रखने के लिलये लगाया गया पुलिलस बल को कस्बा के विवछि�न्न मोहल्लों सड़कों , यितराहे , चौराहे , प्रयितष्ठान आविद स्थानों पर लगाया गया। उपरोक्त �ंग हुई लोक व्यवस्था को पुनः सामान्य बनाये जाने हेतु पुलिलस महाविनरीक्षक कानपुर रेंज कानपुर , आयुक्त कानपुर रेंज कानपुर जिजलायिJकारी कानपुर , पुलिलस अJीक्षक कानपुर आउटर , अपर पुलिलस अJीक्षक , क्षेत्रायिJकारी विबल्हौर व अन्य क्षेत्रायिJकारी गण के सहयोग से करीब 11 घंटे में �ंग हुई लोक व्यवस्था को सामान्य न्तिस्थयित में कराया गया। विवछि�न्न स्थानों पर ड्यूविटयां लगायीं गयी। जिजसका उल्लेख विदनांक 16/07/22 समय 10.18 बजे रो०आम प्र०सं० 63 पर थाना विबल्हौर कानपुर आउटर में विकया गया। संलग्नक सं० -03 रो०आम की प्रयित पेज सं० -52

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घटनास्थल तथा उसके आस - पास के क्षेत्रों में लोक व्यवस्था बहाली हेतु तथा वादी मुकदमा के घर , पंतनगर मोहल्ले , आवागमन बहाली हेतु विदनांक 16.07.2022 से वत8मान तक पुलिलस बल लगाया गया , जिजसका उल्लेख थाना विबल्हौर के रो०आम विदनांक 15/07/2022 से वत8मान तक रो०आम में विकया गया है। संलग्नक सं० -4 विवछि�न्न यितछिथयों की थाने की जी०डी० व अन्य थानों की जी०डी० पेज सं० -53-250”

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" विववेचक द्वारा वादी मुकदमा प्रथम एवं चुटविहल राहुल , प्रथम , संदीप , संजय का बयान लिलया गया तथा चश्मदीद सायिक्षयों का बयान �ी अंविकत विकया गया। वादी मुकदमा ने अपने बयान में प्रथम सूचना रिरपोट8 का समथ8न विकया। "

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" चुटविहल राहुल ने अपने बयान में बताया विक साहब विदनांक 15.07.2022 को मै अपने �ाई प्रथम व अपने जीजा श्यामजीत उफ8 छिशवजीत के साथ कस्बे में �ुन्ना की दुकान पर फिंफगर यिचप्स खाने गया था। फिंफगर यिचप्स खाकर लौटते समय डॉ० रहमान वाली गली में कस्बे का दाविनश , जैद , शहनवाज , शादान के साथ करीब 10-15 लोग थे जिजनके हाथ में सरिरया , डंडा लिलए हुए थे मुझे देखकर कहने लगे विक यही राहुल है इसको मारकर विगरा दो आज कोई �ी

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विहन्दू बचकर नहीं जायेगा और विबना कु� पू�े जांचे मेरे ऊपर हमला कर विदये तथा सरिरया , डंडा लात घूसों से मुझे मारते रहे मैं बेहोश हो गया मुझे इसके बाद कोई जानकारी नहीं है जब मुझे होश आया तो मैने अपने आप को अस्पताल में पाया। साहब जो देखा वहीं बताया मेरा अ�ी इलाज चल रहा है मै अ�ी पूरी तरह ठीक नहीं हूँ , और मुझे अ�ी �ी इन लोगों से �य व खतरा है। साहब यही मेरा बयान है। संलग्नक 09 पेज संख्या -420”

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(9). The police reports, mainly relied upon the local electronic and print media reports whereby, various local news channels and local newspapers have published the news items making the small incident between two groups as sensational and exaggerating the same manifolds and thereafter giving a colour of communal disharmony and communal tension. In the said report, the In-charge Inspector has quoted the headlines of newspapers ‘Dainik Jagaran’, ‘Hindustan’, ‘Amar Ujala’, ‘My City Reporter’ etc. to establish their case, that this was a spark, which could have led to a communal disharmony and tension in the locality and the police have to struggle a lot for eleven hours to calm down the situation.

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(10). Shri Nitin Sharma, learned counsel for petitioner has drawn attention of the Court to the injury report of injured persons, indicating that all of them have sustained simple injuries over their person and except a small haematoma over the head of injured Rahul, none of the injured persons have sustained any grievous or life threatening injury over their person, but the local police as a matter of extra cautious have tried to give a colour of communal disharmony to an incident of minor marpeet and scuffle between two groups. It is further urged by learned counsel for petitioner that this action on the part of the police is an outcome of communal tension in Kanpur Nagar on 3^rd June, 2022 which was erupted after the statement of Nupur Sharma’s statement. Thereafter, the local police was extraordinarily on their toes and bent upon to give colour to

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every small situation/incident of law and order as a disruption of ‘Public Order’.

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(11). The matter was referred to the Circle Officer, Bilhaur, Kanpur Outer; Additional S.P., Kanpur Outer and S.P., Kanpur Outer mentioning therein that though the petitioner was admitted on bail by the learned Sessions Judge, Kanpur Dehat but remaining procedure is under the pipeline and if he comes out from jail, he would again indulge into such offence, and therefore, his detention u/s 3 of the National Security Act is desirable and warranted. After receiving undated report, by In-charge Inspector, P.S.-Bilhaur, Kanpur Nagar, the S.P., Kanpur Outer on 3.9.2022 has blindly dittoed and put his seal of approval endorsing the proposed action u/s 3 of the National Security Act against the petitioner. On 3.9.2022 a letter was addressed to the District Magistrate, Kanpur Nagar, which, on the face of it transpires to be a ‘carbon copy’ of undated report given by the In-charge Inspector, Police Station Bilhaur, Kanpur Outer. There is complete non application of mind and rather this is a reiteration of exact words and phrases used by him. It is contended by learned counsel for petitioner, that this is not the spirit of the law to blindly reiterate the report of a subordinate.

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(12). Soon after receipt of the communication from the S.P., Kanpur Outer, on 6.9.2022 the District Magistrate, Kanpur Nagar without wasting time blindly relying upon it, have passed an order u/s 3(3) of the National Security Act, which reads thus :

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“ चूँविक जनपद कानपुर नगर के जिजला मजिजस्ट्रेट के र्रूप में मेरा समाJान हो गया है विक श्री दाविनश पुत्र जमील अहमद विनवासी राजीव नगर कस्बा व थाना विबल्हौर जनपद कानपुर नगर उम्र 30 वर्ष8 को विकसी �ी ऐसी रीयित में काय8वाही करने से रोकने के उद्देश्य से जो विक लोक व्यवस्था के अनुरक्षण के प्रयितकूल है , ऐसा आदेश देना आवश्यक है।

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अतएव राष्ट्रीय सुरक्षा अयिJविनयम 1980 ( अयिJ०सं० 65/1980) की Jारा 3 की उपJारा (3) द्वारा प्रदत्त अयिJकारों का प्रयोग करके मैं एतद द्वारा यह विनदeश देता हूँ विक श्री दाविनश पुत्र जमील अहमद विनवासी राजीव नगर कस्बा व थाना विबल्हौर जनपद कानपुर नगर उम्र 30 वर्ष8 को उक्त अयिJविनयम की Jारा 3 की उपJारा (2) के अJीन जिजला कारागार कानपुर देहात में साJारण श्रेणी के बंदी के र्रूप में उक्त कारागार के अJीक्षक की अछि�रक्षा में विनर्रूद्ध विकया जाये।

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आज विदनांक 06-9-22 को मेरे हस्ताक्षर एवं मुहर से यह आदेश जारी विकया गया।

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संख्याः 05/ जे०ए० / एन०एस०ए० /2022

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विदनांकः 06-09-2022

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(13). The Court lays its hands to the order passed by the District Magistrate dated 6.9.2022 accompanied by a detailed order regarding the satisfaction of the District Magistrate/Detaining Authority, in which he mentioned that :

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“ मैंने विनर्रूद्धी के औयिचत्य के सम्बन्J में प्र�ारी विनरीक्षक विबल्हौर के प्रस्ताव व पुलिलस अJीक्षक कानपुर आउटर , अपर पुलिलस अJीक्षक कानपुर आउटर क्षेत्रायिJकारी , विबल्हौर कानपुर आउटर की संस्तुयितयों से युक्त आख्या का पूण8 मनोयोग सविहत गं�ीरता से स्वतन्त्र एवं , न्यायियक मन्तिस्तष्क का प्रयोग करते हुए अध्ययन , परिरशीलन एवं मनन विकया। संलग्नक संख्या (i), ए , बी , सी पेज सं० 01-19”

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(14). Contention raised by learned counsel for petitioner, is that from the perusal of aforesaid, apparently it has come out that the District Magistate while passing the alleged detention order under the National Security Act has never applied his own independent mind and discretion which he ought to have, but fact remains, that while passing detailed order not a single word has been added by the District Magistrate in it, rather it is a carbon copy of earlier orders by the local police officials.

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Secondly, it has contended by learned counsel for petitioner that as per Section 13 of the National Security Act the maximum period for which a person may be detained pursuant to any detention order, which has to confirm u/s 12 of the National Security Act, shall be of 12 months from the date of detention. Thus, on the strength of aforesaid mandatory provision, it is urged by the learned counsel for petitioner that the order must spell out the proposed period of detention in it, but in absence of this, the entire order of detention gets vitiated and the petitioner may be set at liberty on this score alone.

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It is also contended by learned counsel for petitioner that the petitioner Danish had sent a detailed representation against the detention order u/s 3(3) of National Security Act dated 6.9.2022, annexed as Annexure-8 to the petition, on 16.9.2022, but it appears that same was also set at naught by the higher executive authorities.

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(15). It is contended by learned counsel for petitioner that while passing the detention order, the petitioner was branded as an extremely arrogant, anti-social, provocative and dangerous to the communal harmony and his free roaming could be detrimental to society at large and there is eminent threat to adversely affect the public order. Learned counsel for petitioner has refuted the unfounded allegation of branding the petitioner as threat to the society at large. It is urged by learned counsel for petitioner that this is nothing but a handi-work of local police who wanted to show his ‘good work’ by falsely implicating the petitioner applying the provisions of draconian law. It is further urged by learned counsel for petitioner that at the best, it could be said that it is a case of ‘law and order’ and by no stretch of imagination, it could be said that the

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petitioner was never involved in any activity which could be said to be detrimental to the ‘public order’. There is no justifiable or bona fide reason or ground for detention of poor petitioner under Section 3(2) of the National Security Act and there are no ingredients to attract this serious provision of the National Security Act in the present facts of case.

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(16). It is submitted by learned counsel for petitioner that petitioner is completely an innocent young lad, having not a single criminal case to his credit, despite that, he has been branded as potential threat to the society in a colourable exercise of power vested in the local police. The local police mischievously magnified the small case to manifolds and after using the hyperboles and on that basis the police have kept the petitioner for an unspecified time into jail. There are number of procedural fallacies, according to petitioner’s counsel, which touches the core issue of detention. Petitioner is a young lad of 30 years and has engaged himself in two-wheeler mechanic job. As per the allegations made in the F.I.R. that the only sin of petitioner is that he is Muslim by community and the local police horrified by the previous month’s incident at Kanpur, rather misusing their powers booked the innocent persons by applying the serious provisions of National Security Act.

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(17). Shri Alok Ranjan Mishra, learned counsel for Union of India has filed his counter affidavit as well as written submission. The Court has an occasion to peruse the counter affidavit sworn by Ms. Meena Sharma, Under Secretary, Ministry of Home, Union of India, New Delhi. In the counter affidavit, learned counsel for Union of India has tried to justify the action of the police by making a submission that the action was necessary to detain the petitioner

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under the National Security Act in order to maintain public peace and order so that the public tranquillity shall be maintained at all cost. Learned counsel for Union of India also submitted that the District Magistrate too has recorded his satisfaction while passing final order of detention u/s 3(3) of the National Security Act against the petitioner. From the various reports made by the police, it is apparent that the general tempo of life was under serious threat and the people at large in the area was horrified by any untoward incident, therefore, huge number of police personnel were deployed by summoning them from adjacent districts to maintain peace and tranquillity. The Police after making great deal and effort and after struggling eleven hours time, then only, any how they have succeeded in establishing the peace and tranquillity in the area. Not only this, the police was remained there on the spot for a long period, so as to ensure the public peace and tranquillity. The District Magistrate while passing the order have focused mainly on the credentials of petitioner that he is a man of criminal mentality and there is every likelihood that he would again indulge into same type of criminal offensive, if he is set at liberty and would endanger the “public order”. It is not a case of “law and order” but where equilibrium of the society got disturbed and the tempo of life came under the immense threat, then in order to bring the normality in the life, it is desirable that such person shall be booked as a preventive measure. The pleading that petitioner has got no criminal antecedents is irrelevant considering the impact of alleged crime on the tempo of life in the locality. In this regard, to buttress his contention, learned counsel for Union of India has cited number of authorities namely, (i) Kanu Biswas vs. The State of West Bengal, 1972 3 SCC 831; (ii) State of U.P. and another vs. Sanjai Pratap Gupta @ Pappu and others, (2004) 8 SCC 591; (iii) Rakesh

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Kumar vs. Superintendent of Jail, Farrukhabad, 2006 (9) ADJ 454 (All) (DB); Sajid vs. State of U.P. and others, (2015) ACC 888; Lalit Gupta vs. State of U.P. and others; (2021) 5 ALJ 323 and Ram Sewak vs. State of U.P. and others in Habeas Corpus Writ Petition No.30758 of 2021 decided on 14.9.2022 .

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(18). Learned A.G.A. too has filed counter affidavit on behalf of respondent no.1, 3 and 4, sworn by Shri Sabhapati Bind, Under Secretary, Home (Confidential Department), U.P. Civil Secretariat, Lucknow; Vishak Ganapathy Iyar, District Magistrate, Kanpur Nagar and Shashikant Singh, Senior Superintend, Central Jail, Naini, Prayagraj. In their respective affidavits, annexing the original orders of Advisory Board dated 21^st October, 2022, confirming the order of detention by the District Magistrate dated 6.9.2022 and thereafter in the counter affidavit filed by the District Magistrate, he too tried to justify the action of his predecessor, in which he has admitted that the sponsoring authority In-charge Inspector, P.S. Bilhaur, Kanpur Outer has given an undated report to the S.P. Kanpur Outer through the Circle Officer recommending to initiate the proceeding against the petitioner under the National Security Act. The petitioner is a chargesheeted accused in Case Crime No.342 of 2022 and while he was in jail he also extended threats to the informant of the case, for which a Case Crime No.421 of 2022 u/s 504, 506 I.P.C. was registered. According to the District Magistrate, Kanpur Nagar the petitioner is a potential threat to the peace and tranquillity of the society at large and thus it is desirable to keep him in jail for the period prescribed.

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LEGAL DISCUSSION :

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(19). We have heard the submissions advanced by learned counsel for petitioner as well as learned counsel for respondents with rapt attention. Shri Nitin Sharma, learned counsel for petitioner in sum and substance has raised the following points for consideration :

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(i) The instant case relates to ‘law and order’ and not ‘public order’.

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(ii) There is no material on record to arrive at the satisfaction that detenu Danish is in jail and his custody is imperative to prevent him from any activity or eventuality recorded u/s 3(2) of National Security Act.

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(iii) No subjective satisfaction while passing the detention order or extension order was recorded by the District Magistrate. The District Magistrate neither in the order nor in his grounds of detention have provided any cogent reason attracting the public order.

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(iv) Detention period is not enumerated in the detention order and the same has been extended without there being any ground or cogent reason. No ground or reasoning attached to the detention order.

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(v) The satisfaction recorded by the appropriate government regarding the detenu Danish is absolutely ill-founded and based on malicious analysis of the facts.

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(vi) The impugned detention order is being passed only to frustrate the order of bail passed in favour of petitioner by the

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learned Sessions Judge, Ramabai Nagar, Kanpur Dehat dated 29.8.2022.

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(vii) The detention order of petitioner Danish deserves to be revoked as State of U.P. as well as Central Government have failed to decide quintessentially the representation submitted by the detenu.

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(20). Learned counsel for petitioner while drawing attention of the Court to the legal authorities has relied upon the judgment of this Court in Mahboob vs Union of India and 5 others in Habeas Corpus Writ Petition No.3895 of 2018 dated 5.4.2019 reported in 2019 (7) ADJ 650 . While referring to the established pronouncement of Hon’ble Apex Court, it is urged by learned counsel that the subjective satisfaction is imperative and to be recorded by the detaining authority keeping in view the legal parameters as established by consistent law in this regard which has been completely overlooked. In fact the present case is of ‘law and order’ and no iota of ‘public order’ is involved in it. The detaining authority has simply dittoed the recommendation of the sponsoring authority without any application of mind and he has blindly put a seal of approval over it.

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(21). Learned counsel for petitioner has laid much emphasis to the effect that the present case is only a case of simply ‘law and order’ and would not fall within the ambit of ‘public order’. The facts of the case that 2-3 boys after consuming the snacks from a street vendor going to home and were intercepted by few hooligans of a particular community, who allegedly assaulted them by sword, knife and iron rod, but fact remains that all the injured persons have sustained “simple injuries with a haematoma” over the head of injured Rahul.

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Thereafter the action of the police came into play whereby they have magnified the small incident into manifold using all sort of hyperboles and exaggerating the incident using their horses of imagination. The deployment of the police and the hours consumed by them would not going to convert the tone, texture and tenor of the case.

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In fact this is not a documentary factum that the police were summoned from nearby police stations/districts and they were deployed for eleven hours. This is not the litmus test for any incident that the police was deployed for eleven hours, nor its publicity in newspapers would determine the nature and gravity of offence.

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(22). In the case of Mahboob vs Union of India (supra) the Division Bench of this Court has throws much light on the issue at hand while referring the authorities of Hon’ble Apex Court, therefore, at this juncture it would be apt to quote the relevant portion of this judgment, as under :

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“(11). Much has been contended by the counsel for the petitioner to the effect that the present is a case of only simple "law and order" and will not fall within the category of "public order". The questions of "law and order" and "public order" have been engaging the attention of the Court since time immemorial. A perusal of relevant case law in this regard would show that "public order" indicates something more than "law and order". The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in

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contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.

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(12). In Dr. Ram Manohar Lohia vs State of Bihar and others, 1966 AIR 740 , it has been held by the Apex Court that any contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against "law and order", "public order" and "security of the State" are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community, but in fact it was a solitary case of robbery, it was held that mere citation of these words in the order of detention is more in the nature of a ritual rather than with any significance to the content of the matter. Thus a solitary instance of robbery as mentioned in the grounds of detention is not relevant for sustaining the order of detention for the purpose of preventing the detenu from acting in any manner prejudicial to the maintenance of public order.

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(13). The determining test in all such cases is "the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed." The expression "law and order", "public order" and "security of the State" are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the

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other the most serious and cataclysmic happenings. ( Dr. Ram Manohar Lohia vs State of Bihar and others, AIR 1966 SC 740 ).

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(14). In Mrs. T. Devaki vs Government Of Tamil Nadu and others, reported in AIR 1990 SC 1086 , the Apex Court has held that single incident of murderous assault on the Minister in a public place was prejudicial to the maintenance of public order. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound to some extent affect the peace prevailing in the locality and it may also affect law and order problem but the same need not affect maintenance of public order. The incident did not and could not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality. The solitary incident as alleged in the ground of detention is not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of public order.

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(15). Learned counsel for the petitioner has further submitted that this is a solitary case and thus, there was no occasion for the detaining authority to have passed the preventive detention order. Reliance has been placed in this regard on the judgment of the Apex Court rendered in the case of Rekha vs State Of Tamilnadu through Secretary to Government, reported in AIR 2011 (5) SCC 244 , wherein the Apex Court has held that if recourse to criminal proceedings would be sufficient to deal with alleged prejudicial activities, then the detention order would be illegal. Even If a person is liable to be tried in a criminal court for commission of a criminal offence or is actually being so tried, but the ordinary criminal law (IPC or the penal statutes) will not able to deal with this situation, then and only then, the preventive detention law be taken recourse to.

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(17). Reference may also be made to a judgment of the Apex Court rendered in the case of Ramveer Jatav vs State Of U.P. and others reported in AIR 1987 SC 63 , wherein the Apex Court has observed that it is difficult to infer from the solitary ground set out in the grounds of detention that the act alleged to have been committed by the petitioner would have disturbed public order as distinct from law and order or that one single act committed by the petitioner was of such a character that it could reasonably be inferred by the

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detaining authority that if not detained, he would be likely to indulge in such activity in future.

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(18). Reliance has also been placed on another judgment of the Apex Court rendered in the case of Subhash Bhandari vs District Magistrate Lucknow, reported in AIR 1987 (4) SCC 685 .

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(19). Thus, in view of the aforesaid facts and circumstances of the case and consistent legal position as enumerated above, we set aside the impugned detention order dated 19.9.2018 passed by the District Magistrate, Muzaffar Nagar, respondent no.3, as approved by the State Government on 1.11.2018 and all consequential orders by means of which the period of detention was extended from time to time.

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(20). The writ petition is allowed. The petitioner, if not wanted in any other case, shall be released from custody forthwith in accordance with law after due communication of this order to the authorities concerned, once again in accordance with law.”

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(23). Keeping in view the totality of circumstances and the guidelines set up by the Hon’ble Apex Court as well as this Court in aforementioned cases, we set aside the impugned Order (No.05/J.A./ N.S.A./2022) dated 06.09.2022 (Annexure No.7 to the writ petition) passed by the District Magistrate/Restraining Authority, Kanpur Nagar (respondent no.3) as approved by the State Government and the Advisory Board, as well as subsequent orders whereby detention of the petitioner has been extended time to time.

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(24). The instant Habeas Corpus Writ Petition is ALLOWED. The petitioner, if not wanted in any other case, shall be released from custody forthwith in accordance with law after due communication of this order to the authorities concerned.

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(25). No orders with regard to cost.

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Order Date :- 15.9.2023 M. Kumar

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Digitally signed by :- MANISH KUMAR High Court of Judicature at Allahabad

Danish v. State of U.P. and 5 Others

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Danish v. State of U.P. and 5 Others

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