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PETITIONER: SMT.SHASHI AGARWAL

       Vs.

RESPONDENT: STATE OF UP & ORS.

DATE OF JUDGMENT12/01/1988

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J)

CITATION:  1988 AIR  596            1988 SCC  (1) 436  JT 1988 (1)    83        1988 SCALE  (1)40  CITATOR INFO :  R          1988 SC 934  (14,15)  E&F        1989 SC2027  (20)  D          1989 SC2265  (20)  R          1989 SC2274  (10)  F          1990 SC 516  (9)  RF         1990 SC1196  (15)  E          1990 SC1202  (8,12)  RF         1990 SC1763  (5)  RF         1991 SC1640  (12)

ACT:      National  Security   Act,  1980:  Sections  3  and  12- Detention-Detenu involved  in Criminal  Case-In jail-Whether order of  detention can  be made  in respect of such detenu- Mere apprehension  that, if  enlarged on bail, likelihood of acting prejudicially  to interest  of  public  order-Whether sufficient to justity the detention order. C

HEADNOTE: %      detention order  was passed and served on the detenu on Augus t 3,  1987, while  he was  in  jail  for  five  non-bailable offences alleged  to have  been  committed  by  him  on  May 19,1987. The  detention order alleged that as the detenu who was in  jail was  trying to  come out on bail, and there was enough possibility of his being bailed out, it was necessary to detain  him in  order to  prevent  him  from  doing  acts against maintenance of public order.      The detention  was approved  by the Government under s. 12 (1) of the National Security Act, 1980, after the receipt of  the  Advisory  Board’s  opinion.  The  validity  of  the detention was  challenged in  the writ  petition before this Court.      On  the   question:  whether  the  detention  could  be justiaed solely  on the ground that the detenu was trying to come out  on bail  and there  was enough  possibility of his being bailed out and he would then act pre judicially to the interest of the public order.      This Court  quashed the detention order on December 18, 1987.      Giving the reasons for its decision,

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^      HELD: Section  3 of  the National Security Act does not preclude the  authority from  making an  order of  detention against a  person while he is in custody or in jail, but the relevant facts  in connection  with the  making of the order would make all the difference in every case. The validity of the order  of detention has to be judged in every individual case on its own facts. [597C-D] 594      Every citizen  in this  country has  the right  to have recourse to law. He has the right to move the court for bail when he  is arrested  under the ordinary law of the land. If the State  thinks that  he does  not deserve bail, the State could oppose  the grant  of bail.  He  cannot,  however,  be interdicted from  moving the  court for  bail by clamping an order of  detention. The  possibility of  the court granting bail may  not be  suffi cient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must  also be  credible information  or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act  prejudicially to  the interest  of public  order. [598B-C]      In  the  instant  case,  there  was  no  material  made apparent on record that the detenu, if released on bail, was likely to  commit ac tivities prejudicial to the maintenance of public  order. The  detention order  cannot be  justified merely on  the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out. [598F-G]      Poonam Lata  v. M.  L. Wadhawan, [1987] 4 SCC 48 relied on.      Alijan  Mian   and  another   v.  District  Magistrate, Dhanbad,   [1983]    3   SCR    930;   Ramesh    Yadav    v. DistrictMagistrate, Etah  and ors.,  [1985] 4  SCC at p. 234 and Binod  Singh v.  District Magistrate,  Dhanbad, [1986] 4 SCC 416 at 421, explained

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 735 of 1987.      (Under Article 32 of the Constitution of India).      U.R. Lalit,  P. Lal  and  Mrs.  Rani  Chhabra  for  the Petitioner.      Yogeshwar  Prasad   and  Dalveer   Bhandari   for   the Respondent.       The following order of the Court was delivered      JAGANNATHA SHETTY,  J. The  arguments of this case conc luded at  the close of the court hours on December 18, 1987. We then nlade the following order:                "We will  give the reasons later. But we make           the operative order here and now. 595                The detention  order is  quashed. The  detenu           will be set at liberty forthwith."      Here are the reasons:      In this writ petition, the validity of the detention of      Arun Aggarwal has been challenged. He has been detained      by the  District Magistrate,  Meerut by  an order dated      August 3,  1987 made  under sec.  3(2) of  the National      Security Act,  1980. The  Government, after the receipt      of opinion  of the  Advisory Board,  has  approved  the      detention as required under sec. 12(1) of that Act. The      impugned order reads as under:

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         "office of the District Magistrate, Meerut                               ORDER                As I  am satisfied  as  District  Magistrate,           Meerut that  issue of  order to  prevent Shri Arun           Aggarwal, son  of Shri  Rattan Singh,  resident of           234, ’L’  Block,  Shastri  Nagar,  Police  Station           Medical,  Meerut   from  doing   act  against  the           maintenance of public order is necessary.                Therefore, in exercise of power given in sub-           section 3 of sec. 3 of National Security Act, 1980           (Act No.  65/ 1980),  I hereby give order that the           above said  Shri Arun Aggarwal, son of Shri Rattan           Singh, resident  of 234,  ’L’ Block, Shastri Nagar           Police Station  Medical,  Meerut  be  detained  in           general category  in District  Meerut Jail  in the           custody of  the Supdt. Of the said jail under sub-           section 2 of Sec. 3 of the above said Act.                Passed  today   dated   3.8.1987   under   my           signature and seal "      There are  as many as five grounds of detention set out in the  order. All  relate to  the offence said to have been committed by  Arun Aggarwal  on May  19, 1987.  Two  of  the offences are  said to  have been  committed at  9.OO A.M. On that day,  the other two offences at 9.30 A.M. and the fifth one was  alleged to have been committed between 9.30 A.M. to 1.00 P.M. On the same day. In each of the grounds there is a mention to the following effect: 596                "Due to  your above  ill acts there broke out           com munal  riots causing  heavy loss to properties           and lives  of the people and your this ill act has           spread fear  and terror  in the  general public of           Meerut City.  In this manner, you have corrlmitted           such an act which is against public law and order.           "           All the  cases referred to in the grounds are non-      bailable offences.  In relation of those offences, Arun      Aggarwal was  arrested as an accused on August 2, 1987.      The detention  order was passed and served on August 3,      1987. The  order particularly  stated: "At  present you      are detained  in District  Jail,  Meerut  and  you  are      trying  to  come  out  on  bail  and  there  is  enough      possibility of your being bailed out."           Before we  consider the  main ground raised in the      petition, we  may make  one point  clear. The  order of      detention repeatedly  states that the detenu committing      the alleged  five offences  set out  in  the  detention      order was  the cause  for breaking out communal riot in      Meerut City.  But in  the  counter-affidavit  filed  on      behalf of the respondents, it has been stated "that the      communal riots broke out in Meerut on April 14, 1987 on      the occasion  of Shab-e-Earat.  That was  controlled by      the Administration.  However, in  the night intervening      between 13/19  May, 1987,  again a  communal riot broke      out." But  all the offences said to have been committed      by the  detenu were after 9.00 A.M. on May 19, 1987. It      was not  in the intervening night between May 18/19. It      was, therefore,  inaccurate to  state that the communal      riot broke  out due  to the incidents attributed to the      detenu on May 19, 1987.           The  primary  question  however,  is  whether  the      detention of Arun Aggarwal could be justified solely on      the ground  that he  was trying to come out on bail and      there was  enough possibility  of his  being bailed out      and he  would then act prejudicially to the interest of

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    the public order. Mr. Yogeshwar Prasad, learned counsel      for the  State, sought  to justify  the detention order      relying upon  the decision of this Court in Alijan Mian      and another  v. District Magistrate, Dhanbad, [ 1983] 3      SCR 930.  The counsel also said that the subsequent two      decisions of this court to which we will make reference      later, are  not in  tune with the ratio of the decision      in Alijan Mian’s case.           We will  first consider  what the  case  about  in      Alijan Mian  case. The  detention order  considered  in      that  case   contained  statement   that  the  District      Magistrate was  satisfied that the detenu was likely to      be 597 released on  bail and  if he was allowed to remain at large, he would  be indulging  in  activities  prejudicial  to  the maintenance of public order. This court refused to interfere with that  detention order  on the ground that the detaining authority  was   justified  in  forming  that  opinion.  The conclusion of  this Court  was evidently  on  the  basis  of material placed before the detaining authority in that case.      The principles  applicable in these types of preventive detention cases  have been explained in several decisions of this Court. All those cases have been considered in a recent decision in  Poonam Lata v. M. L. Wadhawan, [1987] 4 SCC 48. The principles may be summarised as follows.      Section  3  of  the  National  Security  Act  does  not preclude the  authority from  making an  order of  detention against a  person while he is in custody or in jail, but the relevant facts  in connection  with the  making of the order would make all the difference in every case. The validity of the order  of detention has to be judged in every individual case on  its own  facts. There  must be  material apparently disclosed to  the detaining  authority in each case that the person against  whom an  order of  preventive  detention  is being made  is already  under custody and yet for compelling reasons, his preventive detention is necessary.      We will  now refer to the two decisions which according to Mr.  Yogeshwar Prasad  are not  in tune with the ratio of the decision in Alijan Milan’s case (supra). In Ramesh Yadav v. District  Magistrate Etah and Ors., [1985]4 SCC 232 at p. 234, this Court observed:                "On a  reading of  the grounds,  particularly           the paragraph which we have extracted above, it is           clear that  the order  of detention  was passed as           the detaining  authority was  apprehensive that in           case the  detenu was  released on  bail  he  would           again carry  on his  criminal  activities  in  the           area.  If   the  apprehension   of  the  detaining           authority was true, the bail application had to be           opposed and  in case  bail was  granted, challenge           against that  order in  the higher forum had to be           raisec;. Merely  on the  ground that an accused in           detention as an under-trial prisoner was likely to           get bail  an order of detention under the National           Security Act should not ordinarily be passed." What was  stressed in the above case is that an apprehension of the  detaining authority  that the accused if enlarged on bail would again 598 carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.      Every citizen  in this  country has  the right  to have recourse to law. He has the right to move the court for bail when he  is arrested  under the ordinary law of the land. If

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the State  thinks that  he does  not deserve  bail the State could oppose  the grant  of bail.  He  cannot,  however,  be interdicted from  moving the  court for  bail by clamping an order of  detention. The  possibility of  the Court granting bail may  not be  sufficient. Nor  a bald statement that the person would repeat his criminal activities would be enough. There must  also be  credible information  or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act  prejudicially to  the interest  of public  order. That  has  been  made  clear  in  Binod  Singh  v.  District Magistrate Dhanbad,  [1986] 4  SCC 416  at 421, where it was observed:                "A bald  statement is merely an ipse dixit of           the officer.  If there  were cogent  materials for           thinking that  the detenu  might be  released then           these  should  have  been  made  apparent.  Etemal           vigilance on  the part  of the  authority  charged           with both  law and  order and  public order is the           price which the democracy in this country extracts           from the  public officials in order to protect the           fundamental freedoms of our citizens. "      There is,  to our  mind, nothing in these two decisions which runs  counter to  the decision  in Alijan  Mian’s case (supra).      In  the  instant  case,  there  was  no  material  made apparent on  record that the detenu, if released on bail, is likely to  commit activities  prejudicial to the maintenance of public  order. The  detention order  appears to have been made merely  on the ground that the detenu is trying to come but on  bail and  there is  enough possibility  of his being bailed out.  We do  not think  that the  order of  detention could be justified only on that basis.      These were  the reasons upon which we quashed the order of detention. N.P.V. 599