Back
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
MAHESH CHANDRA TRIPATHI, SUBHASH VIDYARTHI, JJ.
Abhayraj Gupta – Appellant
Versus
Superintendent, Central Jail, Bareilly – Respondent
E-Habeas Corpus Writ Petition No.-362 of 2021
Decided on : 23-12-2021
Constitution of India, 1950 - Article 226 and 22(5) - National Security Act, 1980 - Section 3 (2) - Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 - Section 2/3 - Epidemic Act, 1897 - Sec. 3 - Disaster Management Act, 2005 - Sec.53 - COFEPOSA Act – Section 3 - Writ of Habeas Corpus - Application For Bail - Writ Petition under Article 226 of Constitution of India has been filed by petitioner who is in custody in Central Jail, Bareilly through his mother seeking issuance of a Writ of Habeas Corpus challenging his detention under an order passed under Section 3(2) of National Security Act, 1980 and entire consequential proceedings and continued detention as being illegal and unconstitutional and a prayer has been made to issue a Writ of Mandamus commanding respondents to release petitioner from custody - Detention order states that District Magistrate has been satisfied that it has become necessary to pass a detention order under Section 3 (2) of NSA, 1980 to prevent petitioner from acting in any manner which would be prejudicial to maintenance of public order - Grounds of detention are contained in a separate communication of same date issued by District Magistrate which narrates incident which led to passing of detention order - As per report given by informant deceased accompanied by Driver and informant reached P.W.D. Office - Whether petitioner knew about facts of Case Crime and contents of his bail application or not.
Finding of the Court:
Petitioner was entitled to receive entire material referred to or relied upon by detaining authority in detention order and non-supply of copies of documents relating to Case Crime and that of bail application in case vitiates detention order and its legal consequence is bound to follow - Petitioner was already in Jail in a case under Sections 2/3 of Uttar Pradesh Gangsters and Anti Social Activities (Prevention) Act, 1986, that he had not filed an application for bail in aforesaid case and that even when he would file an application for bail he would not be released on bail unless (a) Public Prosecutor is given an opportunity to oppose application for such release and (b) Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail it cannot be accepted that there was any material for recording satisfaction of the detaining authority that with a view to preventing petitioner from acting in any manner prejudicial to maintenance of public order it was necessary to detain petitioner under NSA, 1980 - Satisfaction that it is necessary to detain petitioner for purpose of preventing him from acting in a manner prejudicial to maintenance of public order is basis of order under section 3 (2) of NSA, 1980 and basis is clearly absent in present case - Detention order is unsustainable in law on Court ground also.
Result: Writ Petition allowed.
JUDGMENT :
Subhash Vidyarthi, J.
1. Heard Shri Daya Shankar Mishra, learned Senior Advocate, assisted by Shri Chandrakesh Mishra and Shri Abhishek Mishra Advocates, learned Counsel appearing for the petitioner, Shri Syed Ali Murtaza, learned Additional Government Advocate for the State-respondents (1) Superintendent, Central Jail, Bareli, (2) the District Magistrate, Shahjahanpur and (3) the State of Uttar Pradesh and Ms. Sadhna Singh, learned Standing Counsel for the Union of India.
2. The instant Writ Petition under Article 226 of the Constitution of India has been filed by the petitioner Abhay Raj Gupta, who is in custody in Central Jail, Bareilly, through his mother, seeking issuance of a Writ of Habeas Corpus challenging his detention under an order dated 23-01-2021 passed under Section 3 (2) of the National Security Act, 1980[NSA, 1980] and the entire consequential proceedings and continued detention as being illegal and unconstitutional and a prayer has been made to issue a Writ of Mandamus commanding the respondents to release the petitioner from custody.
3. The detention order dated 23-01-2021 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 Magistrate, which narrates the incident which led to the passing of the detention order. As per the report given by the informant, the deceased Rakesh Yadav accompanied by Kuldeep Jaiswal alias Sonu, Driver Shadab and the informant, reached the P.W.D. Office at about 01:15 p.m. on 02-12-2019. Three unidentified persons present there started firing at Rakesh Yadav with the intention to kill him. As soon as Kuldeep Jaiswal alias Sonu took aim with the licensee pistol of Rakesh, they fired at him also. People starting running away. Rakesh Yadav was killed and Kuldeep Jaiswal was admitted for treatment. On the information of the brother of the deceased, Case Crime Number 837/19 under Sections 302, 307 IPC was registered on 03-12-2019 at 00:53 in Police Station Sadar Bazar, Shahjahanpur.
4. The Second F.I.R. under Case Crime Number 873/19 under Section 307 IPC was registered on 22-12-2019 in Police Station Sadar Bazar, Shahjahanpur on the allegation that when the police apprehended the petitioner to arrest him for the aforesaid incident which occurred on 02-12-2019, he fired at the Police personnel with the intention to kill. The petitioner was taken in custody and was lodged in Jail on 23-12-2019.
5. On the ground of the same incident, a third F.I.R. was lodged under Section 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 as Case Crime No. 221/20 in Police Station Sadar Bazar, Shahjahanpur, in which the petitioner is in custody since 01-05-2020.
6. The detention order states that because of the incident which occurred in P.W.D. Office on 02-12-2019 at about 01:15, the students present in the Gandhi Faiz-e-Aam College adjacent to the P.W.D. College got panicked. Upon coming to know about the incident the guardians of the students also got panicked and in talks with the college management they expressed their concern regarding the safety of their children. The Principal, G. F. College has given an application in this regard to the Police, which establishes that because of the offence of gruesome murder done by the petitioner’s accomplices under a conspiracy hatched by him, people got afraid and panicked and the public order was disturbed.
7. It has been averred in the writ petition that there has been an old animosity between the deceased Rakesh Yadav and his family members and the family members of the petitioner. The petitioner’s grand father Radheyshyam had lodged a first information report in relation to murder of the petitioner’s uncle Ash
If a person 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.
Preventive detention requires a clear demonstration of how actions disturb public order, not merely law and order, with timely issuance reflecting genuine concern for community safety.
Preventive detention under the National Security Act requires subjective satisfaction of the authorities that the detenue is likely to disturb public order based on gathered evidence and present cond....
The detention order under the National Security Act was based on the subjective satisfaction of the detaining authority, considering the likelihood of the detainee being released from custody in the ....
Preventive detention under the National Security Act requires clear justification of public order disturbances, adherence to procedural safeguards, and can be validated by prior criminal history.
Preventive detention requires clear, compelling reasons linked to public order; mere apprehensions are insufficient.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
