Dismissed

Lakshya Java v. Superintendent District Jail Varanasi and 3 Others

Allahabad HC13 Jan 2023HABC/404/2022

Case brief

AI extract

What is this about?

The court dismissed a habeas corpus petition challenging detention under the NSA for manufacturing fake COVID-19 vaccines. It held that the detaining authority was aware of the petitioner's custody, there was a real possibility of bail, and the single incident was grave enough to disturb public order, justifying preventive detention.

What the court decided

AI extract

Lakshya Java Vs Superintendent District Jail Varanasi and 3 Others — Allahabad HC (2023) — LawSathi Research

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Judgment reserved on 05.12.2022 Judgment delivered on 13.01.2023

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Case :- HABEAS CORPUS WRIT PETITION No. - 404 of 2022 Petitioner :- Lakshya Java Respondent :- Superintendent District Jail Varanasi And 3 Others Counsel for Petitioner :- Chandrakesh Mishra,Abhishek Kumar Mishra,Sr. Advocate Counsel for Respondent :- G.A.,A.S.G.I.,Kuldeep Singh Chauhan

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Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Narendra Kumar Johari,J.

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(Per: Hon'ble Mahesh Chandra Tripathi, J.)

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We have heard Shri Daya Shankar Mishra, learned Senior Advocate, assisted by Shri Chandrakesh Mishra, Advocate and Shri Abhishek Mishra, Advocate appearing for the petitioner; Shri Syed Ali Murtaza, learned Additional Government Advocate for the Staterespondent nos.1 to 3 and Shri Kuldeep Singh Chauhan, learned Standing Counsel for the Union of India (respondent no.4).

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Present Habeas Corpus Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner, who is in custody in District Jail, Varanasi since 02.3.2022, seeking issuance of a Writ of Habeas Corpus challenging the impugned detention order dated 15.3.2022 passed by the District Magistrate, Varanasi (respondent no.2) under Section 3 (2) of National Security Act, 1980 (in short, NSA, 1980) and the entire consequential proceedings and continued detention as being illegal and unconstitutional. Further prayer has been made to issue a writ of mandamus commanding the respondents to release the petitioner from custody.

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The detention order dated 15.3.2022 states that the District Magistrate has been satisfied that it has become necessary to pass a detention order under Section 3 (2) of the NSA, 1980 to prevent the petitioner from acting in any manner, which would be prejudicial to the maintenance of public order. The grounds of detention are contained in a separate communication of the same date issued by the District

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Magistrate, wherein it has been stated that an information has been received by the Special Task Force, Varanasi on 02.2.2022 that a gang is preparing fake Covid vaccine injections and testing kits and selling these items to the innocent peoples to gain illegal profits during the pandemic era thereby endangering human life. On receipt of the said input, raid was conducted at the premises in question and vaccine vial, wrapper of vaccine, goods of packing, packing machine and other articles were recovered from the spot. After interrogation, the accused persons admitted that they were making fake Covid vaccines, fake Covid test kits and fake Ramedisivir injections and with the help of petitioner, they were selling the same in Delhi and other States. Regarding the said incident, the first information report was lodged on 02.2.2022, registered as Case Crime No.48 of 2022 under Sections 149, 420, 467, 468, 471, 274, 275, 276 IPC; Section 3 of Pandemic Act and Section 67 of Copyright Act, Police Station Lanka, District Varanasi and the petitioner was arrested and sent to District Jail, Varanasi on 03.2.2022.

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Considering the seriousness of the offence, the concerned Station House Officer sent a detailed report to the Senior Police Officers and the same was forwarded to the District Magistrate. Finally, the District Magistrate, Varanasi has passed the impugned order dated 15.3.2022, whereby the petitioner has been detained under Section 3 (2) of NSA, 1980. The impugned detention order alongwith grounds of the detention and all relevant materials were served upon the petitioner through the Jail authorities on the same day i.e. 15.3.2022 to afford him the opportunity for making an effective representation. The aforesaid detention order was approved by the State Government on 24.03.2022. The petitioner has submitted his representations (three sets) before the District Magistrate, Varanasi on 27.3.2022. Finally, the District Magistrate has rejected the representation of the petitioner on 30.3.2022 and the same was communicated to him on the same day through the Jail authorities. The petitioner was also heard by the Advisory Board on 01.4.2022. The aforesaid representation of the petitioner was duly

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rejected by the State Government on 08.4.2022 and the rejection of the said representation was also communicated to the petitioner on 09.4.2022. The representation of the petitioner was also rejected by the Central Government on 11.4.2022 and the same was informed to him on 13.4.2022. After receipt of the report of the Advisory Board, the said detention order was confirmed by the State Government on 26.4.2022 initially for a period of three months from the date of detention. The detention order was again confirmed by the State Government on 06.6.2022 for a period of six months from the date of detention i.e. 15.3.2022. Again the detention order has been extended by the State Government vide order dated 23.11.2022 for a period of 12 months from the date of detention i.e. 15.3.2022.

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Shri Daya Shanker Mishra, learned Senior Advocate appearing for the petitioner has assailed the impugned order of detention on various grounds. He has stated that the detention order is passed without there being any cogent material. If the allegation against the petitioner is that he was involved in preparing and black marketing the fake Covid vaccine and Remdisivir injections, for the said act the authority had ample powers to take recourse of the ordinary penal laws, which can take care of the alleged offences committed by the petitioner. Therefore, there was no justification for exercising the drastic power conferred under NSA, 1980. He further submitted that no act of present petitioner can be said to be a threat to public order or national security. There is a marked difference between 'public order' and 'law and order'. In any view of the matter, the activity as alleged against the detenue can at best be said to be the disturbance to the 'law and order situation' but the same cannot be put in the category of disturbance of 'public order'. Addressing the point about scope of judicial review of the detention order, it was also urged that subjective satisfaction of detaining authority must be based on a reasonable and justifiable material. The detention order must show the independent application of mind by the competent authority. He submitted that a person can be detained under NSA, 1980 even if he was already arrested provided certain parameters

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are fulfilled. The three necessary factors namely whether District Magistrate was independently satisfied that (i) detenu is already under arrest; (ii) there is likelihood of getting bail and (iii) there is possibility of repeating the same conduct, are essential factors which are required to be gone into by the District Magistrate. There exists no such independent application of mind. The order of detention is also bad in law on the ground that the detaining authority has considered solitary offence, which came to be registered against the petitioner which is not covered within the definition of Section 3 (2) of NSA, 1980. On 25.3.2022, i.e. on the date of passing of the detention order, the petitioner was already in custody and there was no possibility of the petitioner acting in any manner prejudicial to the maintenance of public order and in these circumstances, the provisions of Section 3 (2) of the NSA, 1980 are not attracted and the detention order is unsustainable in law.

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Shri Daya Shanker Mishra has next submitted that in the absence of any past history, the detention of the petitioner on the solitary incident, referred to in the ground of detention, was totally unwarranted. The petitioner was in jail when the detention order was passed and as such, there was no apprehension of breach of public order from him. An application was moved on 08.3.2022 to the concerned Court by the pairokar of the petitioner indicating therein that at no point of time the petitioner had instructed any counsel to move the bail application and therefore, the bail application is liable to be dismissed as not pressed. He submitted that the Presiding Officer had made an endorsement on the said application on 08.3.2022. In this backdrop, the claim has been set up that once the application was already moved and the same was well within the knowledge of the D.G.C. (Criminal) and A.D.G.C. (Criminal) that on 15.3.2022 the said bail application would not be pressed, therefore, the authority was fully aware of the fact that the petitioner is in actual custody and there is no possibility of his being released on bail. As such, there was no apprehension that he will be eventually released on bail and there was any possibility/probability of

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indulging him in manner, which would be prejudicial to the maintenance of public order. Therefore, the impugned order is without application of mind and liable to be set aside. In support of his submission, he has placed reliance on the judgment and order dated 23.12.2021 passed by a Division Bench of this Court, in which one of us (Hon. M.C. Tripathi, J) was member, in Abhayraj Gupta vs. Superintendent, Central Jail, Bareilly¹ , wherein it was observed in paragraph nos.54 and 55 as under:-

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“54. From a perusal of aforesaid pronouncements, it is clear that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is real possibility of his being released on bail and, and (b) that on being so released he would in all probability indulge in prejudicial activity; and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in his behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question the same before a higher Court.

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In Kamarunnissa (Supra), one of the accused persons had secreted diamonds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes. The detaining authority was ware of the fact that two of the accused persons had applied bail and in such cases courts ordinarily enlarge the accused on bail. He was also aware of the fact that one of the detenus had not applied for bail. Conscious of the fact that all the three detenus were in custody, he passed the impugned orders of detention as he had reason to believe that the detenus would in all probability secure bail and if they are at large, they would indulge in the same prejudicial activity since the manner in which the three detenus were in the process of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf. The fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum and that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance. All the three detenus had prepared themselves for indulging in smuggling by creating cavities in their bodies after receiving training. In Baby Devassy Chully (Supra) also the Directorate of Revenue Intelligence had intercepted one sea-faring vessel by carrying diesel oil of foreign origin which was smuggled into India. The officers of the DRI seized the said diesel oil weighing about 770 MTs, worth Rs 2 crores, under the Customs Act, 1962, which was being delivered to the accused person. The accused had been granted bail but he had not availed the same. The Hon'ble Supreme Court had upheld the detention orders keeping in view the peculiar facts of the aforesaid cases that the accused persons were professional smugglers, on the ground that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on

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Habeas Corpus Writ Petition No.362 of 2021

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record to justify his conclusion that they would indulge in similar activity if set at liberty.”

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Shri Mishra, Senior Advocate has submitted that the District Magistrate has erred in law while passing the order impugned in absence of entire relevant materials and records and therefore, the impugned detention order had been passed in violation of Article 22 (5), 21 and 14 of Constitution of India. He also alleged that in absence of requisite documents, the applicant could not make effective representation. Moreover, the said representation had not been decided within reasonable time by the State Government and the Central Government. He submitted that on the date of passing the impugned order i.e. 15.3.2022 the petitioner was in custody. Therefore, he submitted that considering the aforementioned facts and circumstances the invocation of Section 3 (2) of NSA, 1980 was unwarranted. The detention order stood vitiated and the writ petition deserves to be allowed. He has also placed reliance on the judgements in Mohinuddin Vs. District Magistrate, Beed & others² and Satyapriya Sonkar Vs. Superintendent, Central Jail, Naini & other³ in submitting that the detention order stands vitiated and the petition deserves to be allowed.

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Per contra, Shri Syed Ali Murtaza, learned A.G.A. for the State has argued in support of the detention order that the impugned detention order dated 15.3.2022 has been passed by the District Magistrate, Varanasi exercising the powers under Section 3 (2) of the NSA, 1980 after recording the subjective satisfaction. He had submitted that order of detention can be passed on the basis of information and materials which may not be strictly admissible under Evidence Act. It depends on the needs and exigencies of administration to take into account some evidence to proceed against the detenu. The detention order can be assailed if it is based on malafides and if there is nothing to rationally support the conclusion drawn by the District Magistrate. It is for the

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AIR 1987 SC page 1977

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2000 Cr.L.J. (Alld.) (DB)

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Government to consider the representation to ascertain whether the order is in-conformity with the power under the law. Moreover, the Advisory Board considered the representation of the petitioner and the case of detenu to examine whether there is sufficient cause for detention. It is not the case of the petitioner that the detention order is challenged by alleging malafide. Therefore, it cannot be said that detention order is without there being any rational basis at all. Learned A.G.A. placed reliance on the judgment passed by the Apex Court in State of Bombay v. Atma Ram Sridhar Vaidya⁴ in which it was held as under:-

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"6.....By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of strong probability of the impending commission of a prejudicial act...."

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(Emphasis supplied)

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He submitted that the STF, Varanasi had received certain inputs that a gang of few persons were operating in the area and indulging in preparing and selling fake Covid vaccine & injections and testing kits to the public at large. On the said input, the Additional Superintendent of Police, STF Unit, Varanasi had telephonically informed to the Assistant Commissioner of Drugs, Varanasi and other concerned police personnel. Consequently, they reached on the spot and during search operation they found vaccine vial, wrapper of vaccine, goods of packing, packing machine and other articles. They had also found a vehicle (XUV 500 Car). The same was stationed in the premises and two persons were loading cartoons. At the time of search operation three other persons were arrested on the spot. During their interrogation, they have further disclosed the names of five other persons having complicity in the crime namely i.e. Rakesh Thawani, Shamsher Singh, Lakshya Jawa (petitioner), Arunesh Vishwakarma & Sandeep Sharma. During search operation, one i-Phone was recovered. During

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1951 SCR 167

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interrogation, they had all confessed that they were indulging in preparing fake Corona vaccines, Covid test kits and Ramedisivir injections with the help of the petitioner. They were selling the said items in the State of Delhi and other States and were also supplied locally. In support of his submission, he has also placed reliance on the averments contained in paragraph-7 of the counter affidavit filed by the District Magistrate, Varanasi, wherein details of seizure items have been given.

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In this backdrop, he submitted that such huge quantities could not be planted by the local police. The accused persons have also confessed that in the vial of Ramedisivir injection, they put Glucon-D powder and affix the label on the vial written as “Ramedisivir Injection”. The cost of the said injection comes to hardly Rs.100/- whereas the same was being sold in the market at Rs.3000/-. The Covid vaccines have also been prepared and actual preparation cost comes to Rs.25/- whereas it was being sold in the market at Rs.300/-. It has also been disclosed that fake rapid covid test kits were also prepared. The preparation cost was only Rs.40/- and they were being sold in the market at Rs.500/-. The said incident had created panic in the district, which was also highlighted in various newspapers. The fallout of the said incident had also created chaos and disturbed the congenial atmosphere affecting the maintenance of public law and order. The said act was an organized act, which was prejudicial to the maintenance of public order. Considering the seriousness of the offence, the concerned SHO sent detailed report alongwith various documents to the Assistant Commissioner of Police, Bhelupur. The said report was forwarded to the Additional Commissioner of Police, Kashi Zone, Varanasi, thereafter, the same was also sent to the Deputy Commissioner of Police, Commissionerate, Varanasi. It was also sent to the District Magistrate, Varanasi for taking preventive action against the petitioner. He submitted that the bail application was already filed by the petitioner. It is allegedly claimed that the same was not pressed on 15.3.2022, which was duly endorsed by the counsel for the applicant without any cogent reason. The bail

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application was already filed and there was fair chance of release of the applicant. In order to prevent the petitioner from acting in any manner prejudicial to maintenance of public order the District Magistrate invoked the power under Section 3/2 of NSA, 1980 after complete subjective satisfaction on the basis of material available on record. The impugned order of detention has been passed on the basis of information and materials, which may not be strictly admissible under Evidence Act. It depends on the needs and exigencies of administration to take into account some evidence to proceed against the detenu. The scope of interference by High Court on a detention order is limited. The detention order can be assailed if it is based on malafides and if there is nothing to rationally support the conclusion drawn by the District Magistrate.

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He further submitted that in the present case, the petitioner was arrested on 02.02.2022 and he was languishing in jail since 02.02.2022 and continued to be in custody till 15.3.2022 - the date on which the impugned order of prevention was passed. The entire claim has been set up on the basis of an endorsement, which was made by the counsel on the bail application on 15.3.2022. Prior to the making of the endorsement on the said date, an application was moved for not pressing the bail application. The same is also reflected in the order dated 15.3.2022 passed by the Additional District Judge, Court No.16, Varanasi, which is heavily relied upon by Shri Daya Shanker Mishra, learned Senior Advocate appearing for the petitioner in his argument. While passing the impugned order it was difficult to presume that the competent authority could visualise the factual situation that on the same date the applicant would not press the bail application before the court concerned. He submitted that the counsel, who has endorsed the bail application, has not pressed it with deliberate intent so that his case would be on better footing in future litigation, especially to tackle the NSA proceeding on the pretext that there was no real possibility of the applicant's release on bail. As such, there would be hardly any chance of the applicant to indulge in such activity, which would disrupt in

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maintaining the public order, which is essential to detain him and to invoke the preventive detention. In such situation, in case the competent authority has passed an order after recording subjective satisfaction in this behalf, such order cannot be struck down on the ground that on the date of passing the impugned order the counsel has not pressed the bail application. Moreover, the order dated 15.3.2022 does not reflect that there was any discrepancy in the bail application or any other cogent reason for not pressing the bail application.

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Sri. Syed Ali Murtaza has submitted that there is even no bar against passing an order of preventive detention of a person who is already in Jail. He has placed reliance upon a decision of the Hon'ble Supreme Court in Kamarunnissa v. Union of India⁵ . The relevant paragraph-11 of the judgement is reproduced herein under: -

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"11. Counsel for the detenus, however, vehemently argued that since the detenus were in custody, there was no compelling necessity to pass the detention orders for the obvious reason that while in custody they were not likely to indulge in any prejudicial activity such as smuggling. In support of this contention reliance was placed on a host of decisions of this Court beginning with the case of Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14 : 1984 SCC (Cri) 361] and ending with the case of Dharmendra Suganchand Chelawat v. Union of India [(1990) 1 SCC 746 : 1990 SCC (Cri) 249]. It is necessary to bear in mind the fact that the grounds of detention clearly reveal that the detaining authority was aware of the fact that the detenus were apprehended while they were about to board the flights to Hong Kong and Dubai on October 5, 1989. He was also aware that the detenu M. M. Shahul Hameed had secreted diamonds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes. He was also aware of the fact that all the three detenus were produced before the Additional Chief Metropolitan Magistrate, Espalande, Bombay and two of them had applied for bail. He was also conscious of the fact that the hearing of the bail applications was postponed because investigation was in progress. His past experience was also to the effect that in such cases courts ordinarily enlarge the accused on bail. He was also aware of the fact that the detenu M. M. Shahul Hameed had not applied for bail. Conscious of the fact that all the three detenus were in custody, he passed the impugned orders of detention on November 10, 1989 as he had reason to believe that the detenus would in all probability secure bail and if they are at large, they would indulge in the same prejudicial activity. This inference of the concerned officer cannot be described as bald and not based on existing material since the manner in which the three detenus were in the process of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf. Even the detenus in their statements recorded on October 5, 1989 admitted that they had embarked on this activity after receiving training. The fact that one of them secreted

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(1991) 1 SCC 128

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diamonds and precious stones in two balloon rolls in his rectum speaks for itself. Similarly the fact that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance. All the three detenus had prepared themselves for indulging in smuggling by creating cavities in their bodies after receiving training. These were not ordinary carriers. These were persons who had prepared themselves for a long term smuggling programme and, therefore, the officer passing the detention orders was justified in inferring that they would indulge in similar activity in future because they were otherwise incapable of earning such substantial amounts in ordinary life. Therefore, the criticism that the officer had jumped to the conclusion that the detenus would indulge in similar prejudicial activity without there being any material on record is not justified. It is in this backdrop of facts that we must consider the contention of the learned counsel for the detenus whether or not there existed compelling circumstances to pass the impugned orders of detention. We are inclined to think, keeping in view the manner in which these detenus received training before they indulged in the smuggling activity, this was not a solitary effort, they had in fact prepared themselves for a long term programme. The decisions of this Court to which our attention was drawn by the learned counsel for the petitioners lay down in no uncertain terms that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at liberty....."

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It is contended that under the NSA, 1980 a person is liable to be detained with a view to preventing him from acting in any manner prejudicial to the security of the State for maintenance of public order. It means his free movement in society is liable to be curbed out by passing the order of detention. But in the present case, the petitioner was already under custody and the order of detention has been passed only on the basis of the strong possibility that he would be released on bail and thereafter, he would repeat the crime. In support of his submission, he has also placed reliance on the decision in Ahamed Nassar v. State of T.N .⁶ , in which it was held that 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 circumstances that there is likelihood of the detenu being released on bail. Merely because no bail application 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. He has also placed reliance on 6. (1999) 8 SCC 473

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the judgment passed by Hon'ble Apex Court in Baby Devassy Chully v. Union of India⁷ , in which the Hon'ble Supreme Court upheld the preventive detention of an accused, who was already in jail on charges of smuggling, in view of the fact that he had been granted bail but he had not availed the bail order and he could come out of the Jail at any time and indulge in activities prejudicial to maintenance of public order. The relevant portion of the said judgment is being reproduced below:-

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"16. It is clear that if a person concerned is in custody and there is no imminent possibility of his being released, the rule is that the power of preventive detention should not be exercised. In the case on hand, it is not in dispute that on 12-4-2005 itself, the competent court has granted bail but the appellant did not avail such benefit. In other words, on the date of the detention order i.e. 3-5-2005, by virtue of the order granting bail even on 124-2005, it would be possible for the detenu to come out without any difficulty. In such circumstances, while reiterating the principle of this Court enunciated in the above decision in Binod Singh case [Binod Singh v. District Magistrate, Dhanbad, (1986) 4 SCC 416 : 1986 SCC (Cri) 490] and in view of the fact that the detenu was having the order of bail in his hand, it is presumed that at any moment, it would be possible for him to come out and indulge in prejudicial activities, hence, the said decision is not helpful to the case of the appellant. In view of the above circumstances and of the fact that the detaining authority was aware of the grant of bail and clearly stated the same in the grounds of detention, we reject the contra arguments made by the learned counsel for the appellant. On the other hand, we hold that the detaining authority was conscious of all relevant aspects and passed the impugned order of detention in order to prevent the appellant from abetting the smuggling of goods in future."

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Learned A.G.A. submitted that the petitioner was involved in preparing fake Covid vaccine injections and testing kits. After considering the dossier relating to the petitioner, a copy of which has been brought on record as Annexure C.A. No.3 with the counteraffidavit dated 21.6.2022, it was found that there is ample material to form the subjective satisfaction that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order and authority, it was necessary to detain the said person and the detention order dated 15.3.2022 was passed. It is also urged that the State thereafter complied with the timeline as provided in Section 3 (4) and (5) of the NSA Act scrupulously and there is no illegality committed at any stage of proceedings. Moreover, the representation of

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(2013) 4 SCC 531

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the petitioner dated 27.3.2022 was rejected and accordingly, the writ petition deserves to be dismissed.

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Learned counsel appearing for the Union of India has vehemently opposed the writ petition and submitted that the detaining authority has recorded its subjective satisfaction for detaining the petitioner on the ground that said incident in the Covid time had totally disturbed the public order in the area and the petitioner was already in judicial custody and admittedly, his bail application was pending consideration and there was every possibility of his being released on bail and on his coming out from the jail he will again indulge in the activities which will disturb the public order. As such, it could not be said that under the facts and circumstances, the impugned order warrants any interference and the same had been passed without application of mind. He has further submitted that even the representation of the petitioner dated 27.3.2022, which was forwarded to the Central Government, was rejected on 11.04.2022 and the same was communicated to the detenue (the petitioner) on 13.4.2022 and thus, on the strength thereof it is urged that the representation was decided without any delay. Consequently the writ petition deserves to be dismissed.

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16. Heard rival submissions and perused the record.

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From the record it is apparent that the STF, Varanasi received the information on 02.2.2022 that the gang was preparing and selling fake Covid vaccine injections & testing kits. On receipt of the said information, the raid was conducted by the authorities at the premises in question and recovered vaccine vial, wrapper of vaccine, goods of packing, packing machine and other articles. Upon interrogation, accused persons admitted that they were making fake Corona vaccines, fake Covid test kits and fake Ramedisivir injections and with the help of petitioner, they are selling the same in Delhi and other States. After going through the entire records the District Magistrate, Varanasi has passed the impugned order dated 15.3.2022, whereby the petitioner has been detained under Section 3 (2) of NSA and at that point of time, the

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petitioner was under detention in District Jail, Varanasi. The impugned detention order alongwith grounds of the detention and all relevant materials were served upon the petitioner through the Jail authorities on the same day i.e. 15.3.2022 to afford him the opportunity for making an effective representation. The District Magistrate sent a report to the State Government about the passing of detention order together with the grounds of the detention and all the particulars bearing on the same. The said report and the particulars were considered by the State Government and it approved of the detention order under sub-section (4) of Section 3 of the NSA, 1980 and sent a report to the Central Government under Section 3 (5) of the NSA, 1980. The State Government forwarded the case of the petitioner to the Advisory Board in due course under Section 10 of the NSA, 1980 along with detention order together with the grounds of detention. The representation made by the petitioner to the State Government was also placed before the Advisory Board. The Board considered the material placed before it, including the representation of the petitioner and after hearing the petitioner in person, sent its report to the State Government. According to the Board there was sufficient cause for detention of the petitioner. In pursuance of the opinion expressed by the Advisory Board the State Government, in exercise of its powers under subsection (1) of section 12 of the NSA, 1980 confirmed the order for detention of the petitioner and the same was communicated to the petitioner. The District Magistrate, Varanasi, who had passed the impugned order, has filed a counter affidavit to which the petitioner has filed his rejoinder affidavit. In his counter affidavit, the District Magistrate has explained the circumstances, which led to the issuance of the detention order. The State respondents while filing the counter affidavit have also brought on record the dossier relating to the petitioner (Annexure CA No.3). There was ample material to form the subjective satisfaction that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order and authority, it was necessary to detain the said person and consequently, the detention order was passed on

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15.3.2022. The State respondents have also complied with the timeline as contemplates in Section 3 (4) and (5) of the NSA, 1980. It also reveals from the counter-affidavit filed by Union of India dated 10.8.2022 that the representation dated 27.3.2022, which was moved by the petitioner, was forwarded to the Central Government and was also rejected on 11.4.2022. The same was duly communicated to the detenue on 13.4.2022. We do not come across any illegality committed at any stage of proceeding.

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A perusal of the grounds of detention would show that the detaining authority was fully aware of the fact that the detenu was actually in jail custody and there was material before him to believe that there was real possibility of his release on bail. In the ground of detention, the detaining authority on the basis of relevant and cogent material, has elaborately stated the effect of the incident. The detaining authority has categorically stated that on account of the incident fear and terror was spread in the general public. In our opinion, even though it was solitary incident but in the circumstances, it was sufficient for the detaining authority to arrive at a finding that the act of the petitioner had prejudicially affected the public order.

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So far as the alleged application dated 01.3.2022 is concerned, an endorsement was made by the counsel on 15.3.2022 for not pressing the bail application. A copy of the application alongwith the order dated 15.3.2022 passed by the Additional District Judge, Court No.16, Varanasi, has been supplied to us by Shri Daya Shanker Mishra, learned Senior Advocate for the petitioner. In order to scrutinize the said claim, it would be apt to re-produce the alleged application alongwith the affidavit moved on behalf of the petitioner by his father namely Ramesh Java as under:-

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“ ¼vfHk;qDr U;kf;d vfHkj{kk esa½

¶66

ekuuh; U;k;ky; ftyk ,oa l= U;k;k/kh’k] okjk.klhA tekur izkFkZuk i= la[;k lu 2022 bZ0

¶67

y{; tkok cuke m0iz0 ljdkj

¶68

¶69

vUrxZr /kkjk 419] 420 467 468] 471 274] 275] 276 vkbZ0ih0lh0 o 63 dksihjkbV ,DV o 3 egkekjh vf/kfu;e] Fkkuk yadk] ftyk okjk.klhA eq0 va0la0 48 lu 2022 bZ0

¶70

izFke tekur izkFkZuk i= feutkfuc izkFkhZ@ vfHk;qDr y{; tkok iq= iq= jes’k tkok fuoklh bZ7@4] ekyoh; uxj] nf{k.k fnYyh] Hkkjr tfj;s vf/koDrk fuEufyf[kr gS%

¶71

1-;g fd mijksDr eqdnesa esa izkFkhZ @ vfHk;qDr dks xyr ,oa QthZ <ax ls vfHk;qDr cuk fn;k x;k gSA izkFkhZ us dksbZ vijk/k ugh fd;k gS rFkk og funksZ"k gSA

¶72

2-;g fd mDr vijk/k esa izkFkhZ@ vfHk;qDr dh tekur izkFkZuk i= ekuuh; U;kf;d eftLVszV izFke okjk.klh }kjk ljljh rkSj ij fujLr dj nh x;h gS] fujLrhdj.k vkns’k layXu gSA

¶73

3-;g fd mDr vijk/k esa vfHk;qDr@ izkFkhZ dk ;g izFke tekur izkFkZuk i= okLrs lquokbZ Jhekuth ds le{k izLrqr gS] vU; dksbZ tekur izkFkZuk i= fdlh vU; l{ke U;k;ky; vFkok ekuuh; mPp U;k;ky; bykgkckn esa u yfEcr gS vkSj u gh fuLrkfjr dh xbZ gSA

¶74

4-;g fd izkFkhZ vfHk;qDr dks xyr rjhd ls O;kikfjd lEca/k gksus ds dkj.k eqdnesa esa vfHk;qDr cuk;k x;k gSA izkFkhZ viuk nok dk O;olk; deh’ku ij djrk pyk vk jgk FkkA

¶75

5-;g fd izkFkhZ vfHk;qDr dksjksuk dky ds nkSjku deh’ku ij dksjksuk VsfLVax dhV dh Fkksd esa O;kolkf;d ,oa lIykbZ dk dk;Z izkjEHk fd;k Fkk o vkMZj nsdj fofHkUu esfMdy nqdkuksa ij mudh fMek.M ds vuqlkj viuk deh’ku j[kdj lIykbZ djrk FkkA

¶76

6-;g fd izkFkhZ vfHk;qDr dks fnukad 02-02-2022 bZ0 dks ts0,l0 jsthMsUlh ls jkr ds 11%30 cts iqfyl }kjk iqNrkWN ds cgkus fgjklr esa fy;k x;k Fkk ijUrq ,Q0vkbZ0vkj0 esa mldks ekSds ls idMuk n’kkZ;s x;s gS] tks fd xyr gSA

¶77

7-;g fd izkFkhZ vfHk;qDr nok dk Fkksd LkIYkk;j gksus ds ukrs lqPkk: :i ls fnYyh ls cukjl viuk O;kolkf;d dk vkMZj ysus ds fy, eghus&eghus ds vUrjky ij vkrk jgrk Fkk] ftldk izek.k vfHk;qDr ds ikl gS] tks fd iqfyl }kjk tCr dj fy;k x;k gSA vfHk;qDr lqpk: :i ls tc Hkh okjk.klh vkrk Fkk rks dk’kh fo’oukFk eafnj esa n’kZu djrk Fkk ,oa ogha ls dqN nwj ts0,l0 jsthMslh esa dejk ysdj jgrk Fkk] tcfd ,Q0vkbZ0vkj esa ;g n’kkZ;k x;k gS fd vfHk;qDr o mlds lkFkh fxjksg cukdj ,d [k.Mgj edku esa viuk QthZ dksfoM nokvksa dk dkjksckj lapkfyr djrs FksA

¶78

8-;g fd izkFkhZ vfHk;qDr iwoZ esa Hkh viuk nok dk O;kolkf;d o ,Ek0vkj0 dk dk;Z djrk pyk vk jgk g S ] dksjksuk egkekjh ds nkSjku ekWl o lsusVkbtj ds c<rs ekWax ds otg ls izkFkh Z ] lgvfHk;qDrksa ds lEidZ esa vk;kA

¶79

9-;g fd vijk/k la[;k mijksDr ds lanHkZ esa tks Hkh ?kVukdze n’kkZ;s x;s gS] og dgha ls Hkh Lohdkj djus ;ksX; ugh gS D;ksfd fujh{kd }kjk Lo;a gh ,Q0vkbZ0vkj0 ntZ djk;h x;h gS vkSj fujh{kd dks eq[kfcjs [kkl }kjk lwpuk nh x;h vFkkZr ?kVuk dk dksbZ Lora= tu lk{kh ugh gS] ek= viuk dk;Z la;ksftr rjhds ls fn[kkus o vius vki dks dkfcy crkus ds mnns’; ls mifujh{kd }kjk eux<ar rjhds ls ,Q0vkbZ0vkj0 ntZ djk;h x;h gSA

¶80

10- ;g fd lPpkbZ ;g gS fd izkFkhZ@ vfHk;qDr dks xyr wBk Qalk;k x;k gSA vfHk;qDr izkFkhZ }kjk ,slk dksbZ Hkh vijk/k dkfjr ugh fd;k x;k gSA

¶81

11- ;g fd izkFkhZ vfHk;qDr dks ?kVukLFky ls iqfyl }kjk idMk x;k fn[kyk;k x;k gS] tcfd izkFkhZ dks bl ckr dh dksbZ tkudkjh ugha Fkh fd ogkW ij udyh dksfoM nokbZ;ksa dk dk;Z py jgk gSA izkFkhZ ds ikl ls eky ls LkEcaf/kr dksbZ cjkenxh ,Q0vkbZ0vkj0 esa ugh n’kkZ;h x;h gSA izkFkhZ dsoy vkSj dsoy nokbZ ds lIykbZ dk dke djrk Fkk vkSj izkFkhZ vc rd iwjh bZekunkjh ls viuk nok dkjksckj djrk pyk vk jgk gSA

¶82

12- ;g fd izkFkhZ vfHk;qDr dks Fkkuk iz’kklu }kjk flQZ [kkukiwfrZ djus ds fy, fcuk fdlh izek.k ds mDr ,Q0vkbZ0vkj esa QthZ <ax ls vfHk;qDr cuk fn;k gS tcfd ,Q0vkbZ0vkj0 ls izkFkhZ dk dksbZ lEcU/k ugh gSA izkFkhZ dk dksbZ vkijkf/kd bfrgkl ugha gSA

¶83

13- ;g fd vfHk;qDr@ izkFkhZ dkuwu es fo’okl j[kus okyk 'kkafrfiz; O;fDr gS] rFkk mijksDr irs dk LFkk;h fuoklh gS ,oa ckn tekur vfHk;qDr izkFkhZ ds iykf;r gksus dh dksbZ Hkh vk’kadk ugh gSA

¶84

14- ;g fd ckn tekur vfHk;qDr@ izkFkhZ dks leqfpr /kujkf’k dh tekur@ eqpydk ij fjg fd;s tkus dk vkns’k ikfjr fd;k tkuk fugk;r t:jh o U;k;laxr gksxkA

¶85

izkFkZuk

¶86

¶87

vr% ekuuh; U;k;ky; ls izkFkZuk gS fd vfHk;qDr izkFkhZ dks leqfpr /kujkf’k dh tekur eqpyds ij fjgk fd;s tku dk vkns’k ikfjr djus dh d`ik djsa] rkfd U;k; gksA

¶88

fnukad% vf/koDrk okLrs vfHk;qDr

¶89

ekuuh; U;k;ky; ftyk ,oa l= U;k;k/kh’k] okjk.klhA

¶90

tekur izkFkZuk i= la[;k lu 2022 bZ0

¶91

y{; tkok cuke m0iz0 ljdkj

¶92

'kiFki=

¶93

’kiFki= jes’k dqekj tkok iq= nkSyr jke fuoklh bZ&7@4] r`rh; ry] LVzhV ua0 7] fudV xhrk Hkou eafnj ds ikl] ekyoh; uxj] nf{k.k fnYyh] Hkkjr l’kiFk fuEufy[kr c;ku djrk gS%&

¶94

1-;g fd 'kiFkdrkZ tekur izkFkZuk i= mijksDr esa izkFkhZ vfHk;qDr dk firk gS rFkk 'kiFki= esa of.kZr rF;ksa ls c[kwoh okfdQ gSA

¶95

2-;g fd 'kiFkdrkZ l’kiFk c;ku djrk gS fd layXu tekur izkFkZuk&i= dk iSjk 1 yxk;r 15 esjh futh tkudkjh esa lc lp o lgh gSA

¶96

lR;kiu

¶97

eS 'kiFkdrkZ mijksDRk l’kiFk lR;kfir djrk gWw fd dqy etewu 'kiFki= dk iSjk 1 rk 2 esjh futh tkudkjh esa lc lp o lgh gS dksbZ Hkh ckr u rks >wB gS vkSj u gh fNik;h x;h gSA bckjr rlnhd ceqdke nhokuh dpgjh] okjk.klhA

¶98

The alleged application was moved on 08.3.2022, wherein it is claimed that at no point of time, the pairokar of applicant/accused/coaccused had ever instructed any counsel to move bail application. Therefore, considering the said fact the bail application was not pressed. The said application duly verified by the applicant's father. In order to scrutinize the said claim, it would be apt to reproduce the application dated 08.3.2022 alongwith an affidavit as under:-

¶99

ekuuh; Jheku vij tuin ,oa l= U;k;k/kh’k]& XVI okjk.klhA

¶100

ljdkj v/s y{; tkok

¶101

izkFkZuk i= okLrs izkFkhZ@ vfHk;qDr ds iSjksdkj tfj;s vf/koDrk fuEufyf[kr fuosnu djrk gS%&

¶102

1-;g fd izkFkhZ@ vfHk;qDr ds tekur izk0i= fnukad 15@3@22 dks lquokbZ dh frfFk fu;e gSA

¶103

2-;g fd izkFkhZ@ vfHk;qDr@lg&vfHk; q Dr ds iSjksdkj }kjk dksbZ Hkh funsZ"k fdlh Hkh vf/koDrk dks tekur nkf[ky djus gsrq ugh fn;k x;k FkkA

¶104

3-;g fd mijksDr ifjfLFkfr;ksa dks /;ku j[krs gq, mDr tekur ij cy u fn;s tkus ds dkj.k mijksDr t0izk0i= ij mfpr vkns’k ikfjr fd;k tkuk U;k;laxr gksxkA

¶105

izkFkZuk

¶106

¶107

vr% ek0 U;k;ky; ls fouez fuosnu gS fd mijksDr ifjfLFkfr;ksa dks /;ku esa j[krs gq, mDr t0iz0 ij cy u fn;s tkus ds dkj.k mijksDr t0izk0i0 ij mfpr vkns’k fn;s tkus ds ckor vkns’k nsosa rkfd U;k; gksA

¶108

izkFkhZ

¶109

fnukad% 8-3-2022 oh0ih0 flag

¶110

ekuuh; Jheku vij tuin ,oa l= U;k;k/kh’k]& XVI okjk.klhA

¶111

izkFkZuk i= la[;k lu

¶112

ljdkj v/s y{; tkok

¶113

U/s 419] 420 467 468] 471 274] 275] 276 IPC o 63 dksihjkbV o 3 egkekjh vf/kfu;e] PS yadk] Distt. okjk.klhA Crime No. 48/22

¶114

'kiFki=

¶115

’kiFkdrkZ jes’k dqekj tkok iq= nkSyr jke fuoklh bZ&7@4] 3 Q~yksj LVzhV ua0 7] xhrk Hkou eafnj ds ikl] ekyoh; uxj] ubZ fnYyh lkmFk fnYyh] fuEufy[kr c;ku djrk gS%&

¶116

1-;g fd 'kiFkdrkZ l’kiFk c;ku djrk gS fd liFkdrkZ vfHk;qDr dk firk gS rFkk irk mijksDr dk fuoklh gS o eqdnesa dk iSjksdkj gSA

¶117

2-;g fd 'kiFkdrkZ l’kiFk c;ku djrk gS fd 'kiFkdrkZ }kjk fn;s x;s izkFkZuk i= lR; o lgh gS dksbZ Hkh rR; fNik;h ugh x;h gSA

¶118

lR;kiu

¶119

iSjk 1 ykxk;r 2 esjh futh tkudkjh esa lR; o lgh gS dksbZ Hkh rF; fNik;h ugh x;h] rlnhd dysDVzsV dpgjh] okjk.klhA

¶120

'kiFkdrkZ”

¶121

While moving the aforesaid application, the stand was taken that earlier bail application was not filed on the instructions of the pairokar of the applicant/accused/co-accused, which was likely to be listed for disposal on 15.3.2022 and therefore, the same may not be pressed. Surprisingly, while passing the order dated 15.3.2022 the Additional District Judge, Court No.16, Varanasi had observed that counsel of applicant is present and he has made an endorsement on the application dated 24.2.2022 on 15.3.2022 for not pressing the said bail application. Consequently, the Additional District Judge has dismissed the bail application as not pressed. It would be apt to reproduce the order dated 15.3.2022 as under:-

¶122

“tekur izkFkZuk i= is’k gqvkA

¶123

vkosnd ds fo}ku vf/koDrk mifLFkr vk, rFkk muds }kjk tekur izkFkZuk i= ij cy u nsus dk dFku djrs gq, izkFkZuk i= ds gkfl, ij ukWV izsl dk vadu fd;k x;k vkSj ;g Hkh dkgk x;k fd ukWV iszl ds vk/kkj ij tekur izkFkZuk i= dk fuLrkj.k dj fn;k tk,A ,slh fLFkfr esa tekur izkFkZuk i= vkosnd dh vksj ls cy u nsus ds dkj.k fujLr fd;k tkrk gSA”

¶124

¶125

The aforementioned circumstances reflect that the bail application alongwith an affidavit of the petitioner's father was on record. Admittedly, the alleged application dated 08.3.2022 was also moved alongwith an affidavit by the petitioner's father. In case the petitioner's father or pairokar of the petitioner or co-accused had not instructed for moving the bail application then while not pressing the bail application on 15.3.2022 the said objection could very well be taken before the Presiding Officer indicating therein that even though the bail application is there for disposal but the same was not instructed by the the petitioner's father or pairokar of the petitioner or co-accused. In such circumstances, it can safely be presumed that the said bail application was not pressed on 15.3.2022 as an after thought. It is brought into the notice that the competent authority has already proceeded to process an application under NSA, 1980 against the petitioner and other accused. Moreover, the endorsement was made by an Advocate on 15.3.2022 for not pressing the bail application. Even at the said juncture neither the Advocate nor the applicants' pairokar raised an objection before the Presiding Officer that at no point of time, any instructions whatsoever was given to any counsel to move the bail application. Otherwise, in normal course the same could be brought into the notice of the Presiding Judge but no such efforts were made. Therefore, at this stage, we can safely presume that at the time of passing the impugned order on 15.3.2022, actually the competent authority had no information regarding the alleged bail application dated 8.3.2022 being not pressed. 23. In most of the cases, where the bail application is pending in a court, it is always open to the detaining authority to come to its own satisfaction based on the contents of the bail application keeping in mind the circumstances that there is any likelihood of the detenu being released on bail. Generally in most of the cases, where the bail application is pending consideration before the competent court, the detaining authority has every right to come to its own satisfaction based on the contents of the bail application, keeping in mind the circumstances that there is every likelihood of the detenue being

¶126

¶127

released on bail. In the present matter, it transpires that the process was already on and the matter was ceased before the competent authority for invoking the NSA against the applicant and other accused. Only to circumvent the said process and on calculative advice, eventually the bail application was not pressed on 15.3.2022. Moreover, only rider “likely to be released” connote chances of being bailed out in the pending bail application or in case of a bail application moved in future.

¶128

We have also occasion to peruse the judgments in Ahamed Nassar (supra) and Pankaj vs. State of UP and ors⁸ which gives an impression that if the authority passes an order after recording his satisfaction in his behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question the same before a higher Court. Even in the case of a person in custody a detention order can validly be passed on following grounds:-

¶129

“ (1) if the authority passing the order is aware of the fact that he is actually in custody;

¶130

(2). if he has reason to believe on the basis of reliable material placed before him (a) that there is real possibility of his being released on bail and, and (b) that on being so released he would in all probability indulge in prejudicial activity; and

¶131

(3) if it is felt essential to detain him to prevent him from so doing.”

¶132

In Kamarunnissa (Supra), one of the accused persons had secreted diamonds and precious stones in his rectum while the other two detenus had swallowed 100 capsules each containing foreign currency notes. The detaining authority was ware of the fact that two of the accused persons had applied bail and in such cases courts ordinarily enlarge the accused on bail. He was also aware of the fact that one of the detenus had not applied for bail. Conscious of the fact that all the three detenus were in custody, he passed the impugned orders of detention as he had reason to believe that the detenus would in all probability secure bail and if they are at large, they would indulge in the same prejudicial activity since the manner in which the three detenus were in the process

¶133

2016 (92) ACC 816

¶134

¶135

of smuggling diamonds and currency notes was itself indicative of they having received training in this behalf. The fact that one of them secreted diamonds and precious stones in two balloon rolls in his rectum and that the other two detenus had created cavities for secreting as many as 100 capsules each in their bodies was indicative of the fact that this was not to be a solitary instance. All the three detenus had prepared themselves for indulging in smuggling by creating cavities in their bodies after receiving training. In Baby Devassy Chully (Supra) also the Directorate of Revenue Intelligence had intercepted one seafaring vessel by carrying diesel oil of foreign origin which was smuggled into India. The officers of the DRI seized the said diesel oil weighing about 770 MTs, worth Rs 2 crores, under the Customs Act, 1962, which was being delivered to the accused person. The accused had been granted bail but he had not availed the same. The Hon'ble Supreme Court had upheld the detention orders keeping in view the peculiar facts of the aforesaid cases that the accused persons were professional smugglers, on the ground that detention orders can validly be passed against detenus who are in jail, provided the officer passing the order is alive to the fact of the detenus being in custody and there is material on record to justify his conclusion that they would indulge in similar activity if set at liberty.

¶136

In Debu Mahato v. The State of West Bengal⁹ , the Supreme Court held as under:

¶137

".....................The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or a series of acts. But, whatever it be, it must be of such a nature that an inference can reasonably be drawn from it that a person concerned would be likely to repeat such acts so as to warrant his detention............"

¶138

A Co-ordinate Bench of this Court in the case of Satyapriya Sonkar (supra) in paras 6 and 8 has noticed as under:-

¶139

“6. We have given our anxious consideration to the rival submissions made by the learned counsel for the parties. In our opinion, on basis of the

¶140

AIR 1974 SC 816

¶141

¶142

submissions made before us, following questions require determination for resolving the controversy raised in this petition :- 1. Whether the representation dated 27th June, 1999 has actually been served on respondent No. 3 namely State of Uttar Pradesh and respondent No. 4 Central Government ? 2. Whether the aforesaid representation contained fresh grounds which required consideration and decision by the State Government and Central Government ? 3. Whether under the scheme of the Act, the detenu is entitled to make successive representations challenging his detention ? 4. Whether the continued detention of the detenu cannot vitiate if he failed to establish any prejudice caused to him on account of non-consideration of the subsequent representation by the State Government or the Central Government ? 5. Whether the order of detention shall vitiate if the appropriate government failed to place all the representations received by it from the detenu before Advisory Board, as required under Section 10 of the Act ?.

¶143

We take up the first question first as to whether the representation dated 27th June, 1999, sent by father of petitioner to the State Government and Central Government has been served or not. There is no dispute about its service so far as Central Government is concerned. In paragraph No. 3 of the counter affidavit filed by Sanjeev Ranjan on 29-9-99, it has been stated that the speed post article dated 27th June, 1999 at Allahabad has been delivered to the addressee Home Secretary, Government of India, New Delhi on 29th June, 1999. However, there appears controversy regarding service of representation dated 27th June, 1999 on the State Government in view of the denial in the supplementary counter affidavit filed by Sri R.A. Khan. Learned A.G.A. has submitted that as on question of service parties are at variance and it is highly disputed question of fact it cannot be resolved by this Court under Article 226 of the Constitution. We are not prepared to accept this submission of the learned A.G.A. that this Court cannot determine the question of fact in proceedings under Article 226of the Constitution. High Court has jurisdiction to try issues both of facts and law. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, question of fact may fall to be determined. It is a self imposed restriction where a complicated question of fact is required to be determined on basis of the oral and documentary evidence which cannot be appropriately dealt with in present proceedings that this Court declines its discretion. The Court in sound exercise of jurisdiction considering the nature of the case, declines to entertain such writ petitions. Hon'ble Supreme Court in case of Babuhai Mulbhai Patel v. Nandalal Khodidas Barot AIR 1974 SC 2105, dealing with the aforesaid question held as under in paragraph No. 9 of the judgment:-

¶144

“The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petition, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Article 226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceeding of a petition under Article 26.The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt

¶145

¶146

discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (See Gunwant Kaur v. Bhatinda Municipality, AIR, 1970 SC802). If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect.”

¶147

In the present case, for determining the question of service of representation, we have to only peruse the affidavits and the documents filed alongwith them. In paragraph No. 30 of the writ petition, petitioner specifically averred that a representation was made by father of petitioner on 27th June, 1999 and it was sent to state Government and Central Government under registered cover and by speed post respectively. It has also been stated that the representations have not been received back by petitioner's father unserved and he is of firm belief that the representations have been received by the Central Government and State Government but they have not been decided and the detention of the petitioner is in contravention of Article 22(5) and Section 14 of the Act which require expeditious disposal of the representation. In the counter affidavit filed by Bina Prasad on behalf of the Central Government nothing has been said about representation dated 27th June,1999 in paragraph No. 6 of the counter affidavit in which paragraph No. 30 of the writ petition has been replied. On behalf of State Government Sri R.S.Agarwal filed counter affidavit. In paragraph No. 6 of his counter affidavit, it has been stated that the representation dated 27 June, 1999 of the petitioner's father as alleged has not yet been received in the concerned section of the State Government. In view of this denial, petitioner filed a supplementary rejoinder affidavit annexing therewith the reports obtained from the Post Office that the registered letter dated 27th June, 1999 was served on 29th June, 1999 on Home Secretary, Uttar Pradesh, Lucknow. Another report has been filed showing that on 29th June, 1999 letter addressed to Governor was also delivered. Along with the rejoinder affidavit petitioner also filed postal receipts showing that the representation was sent to Governor of U.P. in a registered envelop on 27th June, 1999 on payment of Rs. 25/- as postal charges. The representation was also served to Pramukh Sachiv, Uttar Pradesh Shasan on payment of Rs. 25/- as postal charges. Two receipts were numbered as 3411 and 3410. There is a third receipt No. 653 dated 27th June, 1999 which shows that the representation was sent by speed post on payment of Rs. 45/- as postal charges to Home Secretary, Central Government. All these documents filed along with rejoinder affidavit established service. The supplementary counter affidavit filed by Sri R.A.Khan denied receipt or representation dated 27th June, 1999 in the concerned section of the government. In the supplementary counter affidavit filed on 27-9-99 about averments made in paragraph No. 3 about receipts and the addresses, are as under:-

¶148

“3. That the three receipts bearing No. 3411 and No. 3410 issued by the Post Office, Allahabad and No. 553 issued by EMS Allahabad are only indicative of the fact that three closed envelops addressed to (1) His Excellency The Governor, U.P.(2) Principal Secretary, U.P. Lucknow and (3) Home Secretary, Central Government, Internal Security Department, North Block, New Delhi were dispatched. The second envelope bearing address Principal Secretary, U.P., Lucknow is an

¶149

¶150

incomplete address because it does not contain the name of the department to which the letter is supposed to be delivered. They are inadmissible as evidence of proof of the contents contained therein. However, appropriate efforts to locate the alleged contents were made by the concerned section of the State Govt. On enquiry, the Post Master, General Post Office, Lucknow orally informed that any written information about these can be given only on the official request of the Post Office Branch at Allahabad; which had dispatched these letters.”

¶151

From the aforesaid reply, it is clear that the stand taken is hyper-technical and not convincing. It is admitted position that the representation dated 27th June, 1999 sent to Central Government through Home Secretary by speed post was delivered to the addressee. The report of the Post Office clearly indicated that the registered cover addressed to the Principal Secretary, Home and the Governor of Uttar Pradesh were already served on 29th June, 1999. On the receipt No. 3410 only Pramukh Sachiv has been mentioned on the basis of which, it appears, the reply in the supplementary counter affidavit has been developed though the representation dated 27th June, 1999 which has been filed as Annexure - 1 to the rejoinder affidavit clearly shows that it was addressed to the Principal Secretary, Home, U.P. Government, Lucknow. The petitioner has substantiated the fact, that the representation were actually served on 29th June, 1999 by the report obtained from the Post Office against which there is nothing on the record to disbelieve. If the reports were not correct, it was open to State Government to obtain another report from the postal authorities for which procedure was disclosed as stated in the supplementary counter affidavit of Sri R.A. Khan. Thus, in our opinion, there is sufficient material on record to establish that the representation have actually been served on the Central Government and the State Government or through the Governer of Uttar Pradesh and Secretary, Home Department, Uttar Pradesh.

¶152

Questions No. 2, 3 and 4 are related to each other and can be conveniently considered and decided together. There is no doubt about the legal position that the right of representation against preventive detention is constitutional and safeguard provided under Article 22(5) of the Constitution in Section 8 of the Act is only extension of the same right. The detaining authority is required to afford the detenu earliest opportunity of making representation against the order to the appropriate government. The representation so made has to be forwarded to the Advisory Board while making the reference under Section 10 of the Act. It is also to be considered by the State Government (appropriate government) at the earliest. In addition to the aforesaid right petitioner has also a remedy under Section 14 of the Act under which Central Government and the State Government may revoke the order of detention. The relief under Section 14 of the Act may be claimed at any namely before the order of detaining authority is confirmed by the State Government under Section 12 of the Act or subsequent there to. Thus from the provisions of Act, it is clear that the right to make representation by the detenu is not confined under Section 8 only. The detenu may make a second representation to the State Government and the Central Government under Section 14 of Act for invoking the power of revocation. Thus the detenu can make representation more than once during the period he is under detention. Whether the successive or frequent representations amount to abuse of the right conferred under the provisions of the Act, can be dealt with by the State Government and the Central Government and not by any other authority. The submission of the learned A.G.A. was that the subsequent representations can be permitted only on the basis of fresh ground which were not available at the time the first representation was made. The analogy behind this submission appears to be based on the doctrine of constructive res judicata. A Division Bench of this

¶153

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Court in case of Sushil Kumar v. Adhikshak, Kendriya Karagar, Naini, Allahabad, 1983 Cri LJ 744 held that the application of the doctrine of constructive res judicata is confined only to civil action and is entirely inapplicable to any illegal detention and do not bar a subsequent petition for a writ of habeas corpus. The Court also observed that Section 14 of the Act providing for revocation or modification, has a very wide scope which is not the position in the matter of habeas Corpus before the Court.. The relevant extract from judgment is being reproduced below :-

¶155

“When a detention is challenged before a Court, the Court considers whether legal imperatives have been observed and the right procedure has been followed and the proper opportunity, as envisaged in Article 22(4) of the Constitution as well as under the provisions of the Act in question, has been afforded. The Court does not examine the desirability of the detention of the detenu, which depends on so many other factors including conditions prevailing in any particular region and the need of the detention, the matter comes within the ambit of subjective satisfaction of the detaining authority. Besides, while the Court cannot modify the order as to reduce the period of detention etc. even that scope is open to the appropriate authority under Section 14 of the Act.”

¶156

This Court had also referred an issue, as to whether a single incident can be made the basis for passing the detention order under the National Security Act, 1980, to a larger Bench. The Full Bench vide its judgment and order reported in the case of Suresh Pandey v. State of U.P. and others¹⁰ answered the above question and held that the detention order can be passed on a single/ solitary incident if it is an organized crime and having a serious effect on public life. The Full Court relied upon the decision of the Supreme Court in Ali Jan Mian v. District Magistrate, Dhanhad¹¹ , wherein it was held that even a solitary incident, if it has prejudicially affected the public order, may be sufficient to detain a person preventively.

¶157

The detention order shows that fake drugs/injections were manufactured at Varanasi in order to earn undue profit and in turn, said injections/vaccines and other articles were sold in Delhi and other States. The Covid pandemic created complete chaos & havoc in the society and eventually, it became a serious threat to normal life. Moreover, on one hand the people were struggling for getting oxygen, hospital beds, necessary drugs etc. and on the other hand, the persons 10. 2005 CriLJ 1383

¶158

11AIR 1983 SC 1130

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were also venturing with such nefarious designs to earn undue profits. The administration was discharging and working tirelessly during the great crisis which the entire Nation was facing. The administration was required to take care of public order and also law and order situation as well as to ensure supply of oxygen and other essential medicines to the hospitals. On the one hand, the drug manufacturer, supplier, and distributor were tirelessly performing their respective duties so that the country may come out of such great health crisis and on the other hand, some people were indulging in blackmarketing of Remedesivir and even using fake Remedesivir and vaccines. In such time, it was incumbent upon the State machinery to maintain 'public order'.

¶161

As per Section 3 (2) of NSA, 1980, an order of detention can be passed with a view to prevent a person from acting in any manner prejudicial to the security of the State or to the maintenance of the Public Order. The Public Order is said to embrace more of the community than law and order. Public Order is the even tempo of the life of the community taking the country as a whole or even a specified locality. The disturbance of Public Order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility.

¶162

Considering the aforesaid facts and circumstances, we had also proceeded to examine a few precedents in detail so as to ascertain whether the facts of the present case make out a case of disturbance to “public order” or it would merely fall under the category of a disturbance to “law and order”. The Division Bench of this Court in Abhayraj Gupta 's case (supra) had considered said aspect of the matter in detail in paragraphs 24, 25, 26 and 27. The same are reproduced herein below:-

¶163

“24. In Arun Ghosh Vs. State of West Bengal (1970) 1 SCC 98, the preventive detention was ordered on the following allegations against the accused: -

¶164

"18-5-1966 Teased one Rekha Rani Barua, and when her father protested confined and assaulted him.

¶165

¶166

29-3-1968 One Deepak Kumar Ray was wrongfully restrained and assaulted with lathis and rods.

¶167

1-4-1968 Attempt was made to assault Deepak Kumar Ray at the Malda Sadar Hospital where he was being treated for his injuries in the previous assault.

¶168

2-9-1968 Threatened one Phanindra C. Das that he would insult his daughter publicly.

¶169

26-10-1968 Embraced Uma Das d/o Phanindra C. Das and threw white powder on her face (Criminal case started).

¶170

7-12-1968 Obscenely teased Smt Sima Das, sister of Uma Das and beat her with chappals.

¶171

18-12-1968 Smt Sima Das was again teased

¶172

26-1-1969 Threatened the life of Phanindra C. Das."

¶173

In the light of the aforesaid facts, the Hon'ble Supreme Court proceeded to hold as follows:-

¶174

"3. The submission of the counsel is that these are stray acts directed against individuals and are not subversive of public order and therefore the detention on the ostensible ground of preventing him from acting in a manner prejudicial to public order was not justified. In support of this submission reference is made to three cases of this Court: Dr Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 ; Pushkar Mukherjee v. State of W.B. WP No. 179 of 1968, decided on November 7, 1968 : (1969) 1 SCC 10 and Shyamal Chakraborty v. Commissioner of Police, Calcutta WP No. 102 of 1969, decided on August 4, 1969 : (1969) 2 SCC 426. In Dr Ram Manohar Lohia case [(1966) 1 SCR 709] this Court pointed out the difference between maintenance of law and order and its disturbance and the maintenance of public order and its disturbance. Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Take the case of assault on girls. A guest at a hotel may kiss or make advances to half a dozen chamber maids. He may annoy them and also the management but he does not cause disturbance of public order. He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only. Take another case of a man who molests women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its affect upon the public

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¶176

tranquility there is a vast difference. The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies. It means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. The French distinguish law and order and public order by designating the latter as order publique. The latter expression has been recognised as meaning something more than ordinary maintenance of law and order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. He drew an analogy between public and private crimes. The analogy is useful but not to be pushed too far. A large number of acts directed against persons or individuals may total up into a breach of public order. In Dr Ram Manohar Lohia case examples were given by Sarkar and Hidayatullah, JJ. They show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its affect upon the community. The question to ask is: Does it lead to disturbance of the current of life of the community so as to amount 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 facts. There is no formula by which one case can be distinguished from another."

¶177

In the present case all acts of molestation were directed against the family of Phanindra C. Das and were not directed against women in general from the locality. Assaults also were on individuals. The conduct may be reprehensible but it does not add up to the situation where it may be said that the community at large was being disturbed or in other words there was a breach of public order or likelihood of a breach of public order. The case falls within the dictum of Justice Ramaswami and the distinction made in Dr Ram Manohar Lohia case." (emphasis supplied)

¶178

In Subhash Bhandari Vs. District Magistrate and others, 1987 (4) SCC 685, the facts mentioned in the detention order were that: -

¶179

"...on September 15, 1984 there was a tender for the supply of ballast in PWD in which tenders had been submitted by him in K.P. Singh's name. You keep share with K.P. Singh. On account of your and K.P. Singh's terror no other person submits any tender against you people for which reason you people obtain tenders at rates of your choice. If any other person submits his tender you and K.P. Singh terrorise him. On account of the rates of his tender being lower on September 15, 1984, the tender of the complainant was accepted in one group and in the remaining groups the tenders of K.P. Singh etc. were accepted. For this reason you and K.P. Singh bore a grudge against the complainant.

¶180

On September 25, 1984 at about 3.45 p.m. when Surya Kumar was going, in connection with his tender, in his Ambassador car No. USS 7418, accompanied by his brother-in-law, opposite to the National Highway Khand, he saw some contractors. On reaching near them the complainant had just started talking to them, when suddenly in two cars, you with a pistol, Phool Chand with a revolver, Jaleel with a revolver, Ashok with desi katta, Ashok Sonkar and Saarif with hand-grenade and Shankar Dey with a gun along with

¶181

¶182

three other persons came and with intent to kill the complainant fired at the complainant, threw hand-grenades which fell on the car of the complainant. Consequently, there was a commotion. Traffic was obstructed and public tranquillity was disturbed........"

¶183

In the backdrop of the above mentioned facts, the Hon'ble Supreme Court proceeded to formulate the question to be decided as follows: -

¶184

"6. The High Court of Allahabad after hearing the parties and on a consideration of the decisions cited before it found that whether an act creates a mere law and order problem or affects the even tempo of the life of the community, it is to be seen what is the extent of the impact of the act in question upon the society as a whole; whether the effect is restricted to an individual or a few individuals alone or it creates a sense of insecurity, danger and apprehension in the minds of the people in general apart from those who are the victims of the incident; whether the act or acts disturb the even tempo of life of the society or a section of society; whether the act leads to disturbance of public order or only law and order . The High Court further found that in the context the act committed tends to teach a lesson to the complainant and to act as a warning to prospective tenderers in future who may not dare to avail of the opportunity to submit their tenders against that of the appellants. It was also found that the impact and reach of the act in question goes beyond the individual and affects the community of contractors who take contracts for executing the public works. The court further held that the order of detention made by the detaining authority is legal and valid and the writ petitions were dismissed.

¶185

(emphasis supplied)

¶186

The main question which falls for decision is whether the act referred to in the grounds of detention is directed against certain individuals creating a law and order problem or the reach and potentiality of the act is so deep as to disturb the society to the extent of causing a general disturbance of public tranquility."

¶187

Considering the facts and circumstances, we are not inclined to

¶188

quash the impugned detention order dated 15.3.2022.

¶189

Consequently, the Habeas Corpus Petition is dismissed.

¶190

Order Date :- 13.01.2023 RKP/

¶191

(Hon'ble Mr. Justice Narendra Kumar Johari has joined the Bench for delivery of judgment through video conferencing from Lucknow Bench of this Court.)

¶192

( Hon'ble Narendra Kumar Johari,J.) (Hon'ble Mahesh Chandra Tripathi,J. )

¶193

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

Lakshya Java v. Superintendent District Jail Varanasi and 3 Others

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Lakshya Java v. Superintendent District Jail Varanasi and 3 Others

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