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PETITIONER: FAZAL GHOSI, WAHID, AYAZ AHMADAND RIAZ AHMAD

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT29/06/1987

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) KHALID, V. (J)

CITATION:  1987 AIR 1877            1987 SCR  (3) 471  1987 SCC  (3) 502        JT 1987 (3)    22  1987 SCALE  (2)1  CITATOR INFO :  AFR        1990 SC 231  (8)

ACT:     National Security Act,  1980--Sub-s.(3) of s.  3--Deten- tion  Order--Subjective satisfaction of District  Magistrate must be based upon some pertinent material.

HEADNOTE:     Consequent  upon  the  opening of the  Ram  Janam  Bhumi Temple  at Ayodhya, there was considerable  agitation  among the  Muslim Community. The Petitioners and  appellants  were arrested  for inciting the members of the community  to  in- dulge  in violence and charged for offences  under  sections 147/148/149/307/332  of the Indian Penal Code.  While  their bail  applications  were pending; the  District  Magistrate, purporting  to act under sub.s. (3) of s. 3 of the  National Security Act 1980, served detention orders on them.     Writ Petitions challenging the detention orders filed by the appellants were rejected by the High Court.     The Petitioners and appellants contended that the deten- tion orders were bad for the reason that there was no  mate- rial before the District Magistrate on the basis of which he could  form the opinion that they would act in future  in  a manner prejudicial to maintenance of public order. Allowing the petitions and appeals, this Court,     HELD: The power to detain under the Act can be exercised only  with  a view to preventing a person from acting  in  a manner  which  may prejudice any of the  considerations  set forth  in  Section 3 thereof. Preventive  detention  is  not intended as a punitive measure, as a curtailment of  liberty by  way of punishment for an offence already  committed.  No doubt the satisfaction of the District Magistrate making the detention  order is subjective in nature, but, even  subjec- tive satisfaction, must be based upon some pertinent materi- al. [473F-G; 474A-B] In  this case there is no material to show that the  detenus would act 472 in the future to the prejudice of the maintenance of  public order.  Even if it is accepted that the detenus did  address the  assembly  of persons and incited them  to  lawlessness,

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there  is  no material to warrant the  inference  that  they would repeat the misconduct or do anything else which  would be prejudicial to the maintenance of public order. [473G-H]

JUDGMENT:     CRIMINAL   ORIGINAL/APPELLATE  JURISDICTION: Writ  Peti- tion Nos. 30(1 and 30 1 of 1986. ( Under Article 32 of the Constitution of India). WITH Criminal Appeal Nos. 374-A and 411 of 1986.     From  the  Judgment  and Order dated  31-3-1986  of  the Allahabad High Court in W.P. Nos. 1448 and 1405 of 1986. A.K.  Gupta for the Petitioners in W.P. Nos. 300 and 301  of 1986.     S.A. Syed and Shakil Ahmed for the Appellants in Crl. A. Nos. 374A and 411 of 1986.     A.D.  Singh, Ms. Rachna Joshi and Dalveer  Bhandari  for the Respondents. The Judgment of the Court was delivered by     PATHAK, C.J.I. The petitioners Fazal Ghosi and Wahid  in the  two  writ petitions before us and the  appellants  Ayaz Ahmad  and  Riaz Ahmad in the two Criminal Appeals  are  ag- grieved  by  the orders of detention  made  respectively  in respect  of  them under sub-s.(2) of s. 3  of  the  National Security  Act, 1980. The petitioners Fazal Ghosi  and  Wahid filed writ petitions in the High Court of Allahabad  against the  detention orders concerning them and those  writ  peti- tions were dismissed. They have now filed the present  peti- tions  under Article 32 of the Constitution. The  appellants Ayaz  Ahmad and Riaz Ahmad filed writ petitions in the  High Court  of Allahabad against the detention orders  concerning them,  and those writ petitions having been  dismissed  they have appealed here by special leave. All the four cases have been  heard together. It is agreed between the parties  that although separate orders of detention were made under sub-s. (2) of s. 3 of the National Security Act against the various petitioners and appellants the grounds raised in this  court against their detention orders are identical.     It  appears that consequent upon the opening of the  Ram Janam Bhumi temple at Ayodhya, Faizabad, there was consider- able agitation  473 among  the Muslim community. According to the State  Govern- ment,  several members of the community were returning  from the  mosque after their afternoon prayers, and at  Bholanath Ka  Kuan,  Abdul Aziz Road, Lucknow they were  addressed  by Fazal  Ghosi and his son Wahid in language inciting them  to beat the police and the Police Armed Constabulary. At anoth- er place, Sarkata Nala, a large number of the Muslim  commu- nity are said to have been similarly addressed by the appel- lants,  Ayaz  Ahmd  and Riaz Ahmad. It is  alleged  that  in consequence  the  crowd commenced pelting  stones  and  dis- charged fire arms on the Government officials and the police personnel assembled there as a result of which they received injuries.  The petitioners and the appellants were  arrested along with other persons, and a First Information Report was lodged  in respect of each of them for offences  under  sec- tions 147/148/149/307 and 332 of the Indian Penal Code.  The petitioners  and the appellants applied for grant  of  bail, and  while the bail applications were pending  the  District Magistrate,  Lucknow, purporting to act under sub-s. (3)  of s. 3 of the National Security Act, served a detention  order on  February 20, 1986 on each of the four detenus. This  was

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followed  on February 21, 1986 by service of the grounds  of detention.     Learned counsel for the detenus challenges the detention orders on several grounds. In our opinion, it is not  neces- sary to consider all the points raised because it appears to us that the cases can be disposed of on a short ground.  The contention  on  behalf of the detenus is that there  was  no material  before  the District Magistrate on  the  basis  of which  he could form the opinion that the detenus would  act in  future  in a manner prejudicial to  the  maintenance  of public  order. It is pointed out that the National  Security Act provides for preventive detention. and preventive deten- tion is intended where it is apprehended that the person may act  prejudicially  to  one or more  of  the  considerations specified in the statute. There is no doubt that  preventive detention  is not intended as a punitive measure, as a  cur- tailment  of  liberty by way of punishment  for  an  offence already  committed. Section 3 of the Act  clearly  indicates that  the power to detain thereunder can be  exercised  only with  a view to preventing a person from acting in a  manner which  may prejudice any of the considerations set forth  in the section. In the present case, we are unable to  discover any  material  to  show that the detenus would  act  in  the future to the prejudice of the maintenance of public  order. Even if it is accepted that they did address the assembly of persons and incited them to lawlessness there is no material to warrant the inference that they would repeat the  miscon- duct  or do anything else which would be prejudicial to  the maintenance of public order. The District Magistrate, it  is true, has stated that the detention  474 of the detenus was effected because he was satisfied that it was  necessary to prevent them from acting prejudicially  to the  maintenance of public order, but there is no  reference to  any  material in support of that  satisfaction.  We  are aware  that the satisfaction of the District  Magistrate  is subjective in nature, but even subjective satisfaction  must be based upon some pertinent material. We are concerned here not  with  the  sufficiency of that material  but  with  the existence of any relevant material at all.     In the circumstances. the detention orders in respect of the four detenus must be quashed.     The  writ  petitions and the appeals  are  allowed,  the order of detention in respect of each detenu is quashed, and the  detenus are entitled to be set at liberty unless  their detention is required in connection with other cases. N.P.V.                              Petitions  and   appeals allowed.