IMPORTANT POINT
Great caution should be exercised in scrutinising the validity of an order passed u/s 3(2) of National Security Act, 1980, against an accused when he is likely to be enlarged on bail.

Headnote:(i) Constitution of India, 1950 - Article 22(5) National Security Act. 1980 - Section 3(2) Order of detention under - Validity challenged - Ground of delay in passing the impugned order - Satisfactory explanation - An Order is not to be mechanically struck down if passed after some delay - Necessary to consider the circumstances in each individual case (1988(1) S.CC. 296: Referred) - Distinction between such delay and delay in complying with the procedural safeguards. (1988(3) S.C.C 153: referred),
       Held, that in the present ease the petitioner was in custody and there could not be any apprehension of his including in illegal activities requiring his detention until the grant of bail by the Criminal Court became imminent. Besides, enquiry was also proceeding.
       (Para 6)
        (ii) National Security Act, 1980 -Section 3(2) - Passing an order of detention against an accused when be is likely to be enlarged on bail - Scope of-Great caution should be exercised in scrutinising the validity of the order.
        Held, that the apprehension of the District Magistrate that the prayer in this regard was likely to be granted does not mean that the application was unopposed. The District Magistrate was expecting an adverse order on account of the fact that the witnesses of the incident appeared to be reluctant to support their earlier statements. The situation can be well appreciated as it is common knowledge that due to deteriorating law and order situation in the country and mounting aggressive intimidating postures of accused persons, witnesses are failing to summon courage in assisting the administration of justice by going before a court of law to state what they have seen or heard. (Para 7)
       A perusal of the detention order in the case before us and of the affidavit of the District Magistrate, makes it abundantly clear that be did not act for defeating the bail order. He was of the view that having regard to the entire circumstances appearing from the records placed before him, the petitioner when let out on bail, was likely to create public order problem. The District Magistrate came to this conclusion on the consideration of relevant materials. (Para 8)
        (iii) Constitution of India - Articles 14 & 22(5) - National Security Act, 1980 -Section 3(2) - Order of detention-Challenged Ground of discrimination as the other co-accused joil1ed together with petitioner in the criminal case have not been detained - Role of the petitioner and that of others are not identical - Reasonable apprehension as to their future conduct must depend on the relevant facts and circumstances which differ from individual to individual - A uniform decision was not expected. (Para 9)

Judgment

SHARMA, J. :- The writ petitioner has by the present application under Article 32 of the Constitution challenged the order of his detention dated 7-12-1987, passed under S. 3(2) of the National Security Act, 1980. Earlier he, had unsuccessfully moved the Allahabad High Court under Article 226.

2. The District Magistrate has mentioned three incidents in the grounds served on the petitioner : (i) the petitioner is alleged to have fired with his revolver at one Sri Azam with the intention to kill him but he narrowly escaped. As a result of this attack at 5.00 P.M. on 17-12-1986, according to the detaining authority, "terror spread over in the entire area and all the shopkeepers who had their shops in the nearby locality closed down their shops out of panic and fear. This incident created a public order problem;" (ii) the petitioner is said to have made another bid on 21-6-1987 to kill another person named Aziz who also narrowly escaped; and (iii) on 27-7-1987, at about 7.45 P.M. the petitioner with his colleagues killed Shri Aziz in front of the Lucknow District Jail. The persons who were present there ran away out of fear. The Jail Authorities returned the fire and the petitioner then threw a handgrenade. On being challenged again, the party hurled bombs and the petitioner indiscriminately fired from his pistol. This incident seriously disturbed the public order. The details of the panic which struck the locality are mentioned in the grounds.

3. Criminal cases were registered against the petitioner with respect to each of the three incidents but it appears that evidence against the petitioner was not forthcoming, although several persons supported the prosecution version of the third incident dated 27-7-1987 by their statements recorded under S. 161 of the Criminal Procedure Code. The petitioner was, however, in custody and moved an application for bail. The District Magistrate after considering the relevant circumstances came to the conclusion that the petitioner was likely to be enlarged on bail by the Criminal Court and since he was further of the view that if the petitioner was not detained, he would be indulging in activities prejudicial to the maintenance of public order, the order of detention was made.

4. Mr. R. K. Garg, counsel for the petitioner has contended that the order of detention is vitiated on several counts. The learned counsel argued that as only one of the three incidents mentioned in the grounds can be held to be connected with the public order problem, the order must be held to be bad and further it was wrong for the District Magistrate and the High Court to have referred to the first two incidents. Besides, the order having been passed on account of the third incident which happened more than four months earlier ought to be set aside on the ground of undue delay alone. It was further said that the order was vitiated as the petitioners bail application in the Criminal Court was not opposed by the State; and in any view the District Magistrate had no jurisdiction for detaining the petitioner with a view to frustrate the Criminal Courts order enlarging the petitioner on bail. Referring to the first information report about the July occurrence it was pointed out that 14 persons besides the petitioner were made accused in the case and the authority has illegally discriminated against the peritioner in detaining him while the others have been left free. It was also stated that all the relevant records were not placed before the District Magistrate before passing the detention order and a copy of the application filed at the instance of the petitioner by way of counter case was not served on him. Lastly it was suggested that in view of the respondents reply it appears that probably the petitioners representation was not considered and disposed of by the Central Government at all.

5. The High Court has not considered it essential to decide whether the first two incidents mentioned in the grounds served on the

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1988 Supreme(SC) 486

SUPREME COURT OF INDIAL.M. SHARMA AND N.D. OJHA, JJ.Yogendra Murari, Petitioner VersusState of U.P. and others, Respondents.Writ Petn. (Crl.) No. 259 of 1988, D/-8-8-1988.

IMPORTANT POINT Great caution should be exercised in scrutinising the validity of an order passed u/s 3(2) of National Security Act, 1980, against an accused when he is likely to be enlarged on bail.

Cases Referred (4)

SUPREME COURT OF INDIA
L.M. SHARMA AND N.D. OJHA, JJ.
Yogendra Murari, Petitioner
Versus
State of U.P. and others, Respondents.
Writ Petn. (Crl.) No. 259 of 1988, D/-8-8-1988.

IMPORTANT POINT
Great caution should be exercised in scrutinising the validity of an order passed u/s 3(2) of National Security Act, 1980, against an accused when he is likely to be enlarged on bail.