http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 11

Vs.

RESPONDENT:
STATE OF U.P. & ANR.

DATE OF JUDGMENT25/11/1988

BENCH:
VENKATACHALLIAH, M.N. (J)
BENCH:
VENKATACHALLIAH, M.N. (J)
MISRA RANGNATH

CITATION:
1989 AIR 364 1988 SCR Supl. (3) 967
1989 SCC (1) 374 JT 1988 (4) 489
1988 SCALE (2)1489
CITATOR INFO :
APL 1989 SC 371 (10)

ACT:
Constitution of India 1950: Article 21--Personal
liberty--Greatest of human freedoms--Preventive detention
laws--To be strictly construed--Procedural safeguards--
Meticulous compliance to be insisted upon.
%
National Security Act 1980: Sections 3 and 5--detention
order--Subjective satisfaction of detaining authority--
Necessity for--What would be a simple ’law and order
situation may assume gravity and mischief of ’public order’
problem.
Statutory Interpretation: Preventive Detention laws to
be strictly construed--meticulous compliance with procedural
safeguards to be insisted upon.

HEADNOTE:
The petitioner-detenu was involved in three incidents
of offensive activity. In the first two incidents he is
alleged to have damaged the buses of one Anil Gautam
whereupon non-cognizable offences under section 504, 427
I.P.C. were registered against him. In the third incident he
is alleged to have caused the death of Anil Gautam by giving
him knife blows and a case under s. 302 I.P.C. was
registered against him.
While the detenu was in judicial custody, the detaining
authority, apprehending his release on bail, passed the
order of detention against him under s. 3(2) of the National
Security Act, 1980. The three grounds of detention related
to the three incidents stated above.
On behalf of the petitioner in the writ petition, it
was contended that the order of detention was vitiated
because (i) the grounds, even assuming to be true, were
incapable in law of producing the satisfaction of any
apprehension in regard to the maintenance of the public-
order, and, at the worst, did no more than to suggest a
possible ’law and order’ situation; (ii) the object of the
bail since granted to the detenu; and (iii) the detaining
authority failed to consider the telegram sent on behalf of
the petitioner complaining that the petitioner had been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
PG NO 967
PG NO 968
taken away by the police at 8.00 p.m. earlier that night
while the incident of assault on Anil Gautam, as stated in
the third ground, occurred at about 9.10 p.m. that night.
Ramesh Yadav v. Distt. Magistrate Etah, AIR 1986 SC
315, relied upon.
On behalf of the State, it was contended that the three
acts attributed to the detenu had serious adverse effect on
the even tempo of life in the locality and produced a
"public-order" problem and that the detention fully
satisfied all the procedural-safeguards.
Allowing the writ petition and quashing the order of
detention it was,
HELD: (1) Section 5A of the Act provides that where a
person has been detained on two or more grounds, such order
shall be deemed to have been made separately on each of such
grounds. The object of sec. 5A is that if any of the grounds
is found to be vague, non-existent, not relevant, not
connected with the detenu or is invalid for any other reason
whatsoever, it should be open to the detaining-authority to
support the detention order on such ground or grounds as may
not be so vitiated. [971B-C]
(2) Personal liberty protected under Article 21 of the
Constitution is held so sacrosant and so high in the scale
of constitutional values that in a habeas corpus petition
the obligation of the detaining-authority is not confined
just to meet the specific-grounds of challenge but is one of
showing that the impugned detention meticulously accords
with the procedure established by law. The law of
preventive-detention are strictly construed and compliance
with the procedural safeguards, however technical, is
strictly insisted upon by the courts. [974F-H]
Thomas Pelham Dales’s, case [1881] 6 QBD 376, referred
to.
(3) The compulsions of the primordial need to maintain
order in society, without which the enjoyment of all rights,
including the right to personal liberty, would lose all its
meaning is the true justification for the laws of preventive
detention. The pressures of the day in regard to the
imperatives of the security of the state and of public order
might it is true require the sacrifice of the personal
liberty of individuals. [1975G-H]
PG NO 969
(4) The actual manner of administration of preventive
detention is of utmost importance. The law has to be
justified by the genius of its administration so as to
strike the right balance between individual liberty on the
one hand and the needs of an orderly society on the other.
Adjustments and readjustments are constantly to be made and
reviewed in maintaining the right balance according to the
pressures of the day. [976C-E]
Ichudevl v. Union of India, AIR 1980 SC 1983; Vijay
Narain Singh v. State of Bihar, AIR 1984 SC 1334 and Hem
Lall Bhandari v. Sikkim, AIR 1987 SC 762, referred to.
(5) There are well recognised objective and judicial
tests of the subjective satisfaction for preventive
detention. Amongst other things, the material considered by
the detaining-authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic.
[978G]
(6) It is true that if the only ground of justification
for the detention is the apprehension that the detenu was
likely to be enlarged on bail, the detention might be
rendered infirm. But where, as here, there are other
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
grounds, the reference by the detaining authority to the
prospects of grant of bail could be no more than an emphasis
on the imminence of the recurrence of the offensive
activities of the detenu. [979B-F]
7) Even a single instance of activity tending to harm
"public-order" might, in the circumstances of its
commission, reasonably supply justification for the
satisfaction as to a legitimate apprehension of a future
repetition of similar activity to the detriment of "public-
order". [979F]
(8) Even if a prosecution against a person fails or
bail is granted an order of detention could be passed
drawing the satisfaction therefore from the facts and
circumstances in the criminal proceedings. But it is
necessary for the detaining authority to resist the
temptation to prefer and substitute, as a matter of course,
the easy experience of a preventive detention to the more
cumbe-some one of punitive detention. [979G-H; 980A]
(9). What might be an otherwise simple "law and order"
situation might assume the gravity and mischief of a
"public-order" problem by reason alone of the manner or
circumstances in which or the place at which it is carried
out. [980E]
PG NO 970
Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740,
referred to.
(10) The first two grounds which pertain to the
commission of non-cognizable offences have no rational nexus
relatable to the maintenance of public order. The alleged
attacks were directed against the same individual and, even
according to the police, they constituted merely offences of
a non-cognizable nature. [980D-F]
(11) It is not disputed that the telegram was not
placed before and considered by the detaining authority. If
a piece of evidence which might reasonably have affected the
decision whether or not to pass an order of detention is
excluded from consideration, there would be a failure of
application of mind which, in turn, vitiates the detention.
[981G-H; 982A]

JUDGMENT:
ORlGlNAL JURlSDlCTION: Writ Petition (Crl.) No. 210 of
1988.
(Under Article 32 of the Constitution of India.)
R.K. Garg. R.S.M. Verma and Shakil Ahmad Syed for the
Petitioner.
V.C. Mahajan, Yogeshwar Prasad, Ms. A. Subhashini,
Dalveer Bhandari, Rachna Joshi and H.K. Puri for the
Respondents.
The Judgment of the Court was delivered by
VENKATACHALIAH, J. By this writ petition under Article
32 Of the Constitution, the detenu--Ayya alias Ayub, son of
Babu Khan, residence No. 100, Khernagar, P.S. Delhi Gate,
Meerut--challenges the order of detention dated 28/2/1988
passed by the District Magistrate, Meerut, ordering the
detention of the petitioner under Sec. 3(2) of the National
Security Act, 1980, on the said authority’s satisfaction
that such detention is necessary with a view to preventing
petitioner from acting in a manner prejudicial to the
maintenance of the "public-order". At the time of the
passing of the order, petitioner was already in judicial-
custody in connection with a criminal prosecution arising
out of the incident referred to in one of the grounds of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
detention.
2. Section 3(2) of the Act provides, inter alia, that
the Central Government or the State Government, may make an
order with respect to any person for purposes of preventing
him from acting in a manner prejudicial to the maintenance
PG NO 971
of the public-order. The sub-section provides for detention
on certain other grounds which are not germane to the
present matter as the avowed object of the impugned
detention is in relation to, and for the purposes of, the
maintenance of public order. Sec. 5A of the Act also
provides that where a person has been detained on two or
more grounds, such order shall be deemed to have been made
separately on each of such grounds. The object of Sec. 5A is
that if any of the grounds is found to be vague, non-
existent, not relevant, not connected with the detenu or is
invalid for any other reason whatsoever, it should be open
to the detaining-authority to support the detention order on
such ground or grounds as may not be so vitiated.
3. We have heard Shri R.K. Garg, learned Senior Counsel
for the petitioner and Shri Yogeshwar Prasad, learned Senior
Counsel for the detaining-authority.
Shri Garg strenuously contended that the impugned
detention is an instance of a demonstrable abuse of power
and the grounds are wholly ultra vires of the power of
detention in that--quite apart from the falsity of the
allegations and other legal infirmities--the grounds, even
assuming to be true, are incapable in law of producing the
satisfaction of any apprehension in regard to the
maintenance of the public-order. The grounds, at the worst,
Learned Counsel contends do no more than to suggest a
possible ’law and order’ situation and not a ’public-order’
situation. The detention, it is urged, is also vitiated by a
non-application of mind by an omission to consider material
capable of influencing the satisfaction.
Shri Yogeshwar Prasad, however, sought to support the
order of detention, relying upon the records of the
proceedings and the affidavit filed by the detaining-
authority. The concerned police officers have also filed
their counter-affidavits.
4. In order to appreciate the contentions urged at the
hearing, it is necessary to advert to the three grounds on
which the satisfaction on the part of the detaining-
authority for the need for the detention was reached. They
are:
1. ’That on 6.2.88 at Ghursal Mor. near Jamaniya Bagh
R.T.O. Road, P.S. Railway Road at 3.50 P.M. you along with
your other companions stopped Mini Bus No. U.S.Q. 9278 and
you immediately started breaking the glass screens of the
PG NO 972
bus with an iron rod and your companions hurled brick-bats
at the glasses of the bus and extended abuses to the driver.
On being told about above incident by Shri Chandrapal,
Driver of Mini Bus, Shri Anil Gautam made a written
complaint on the basis of which a report No. 8 of non-
cognizable offence was registered u/s 504, 427 of I.P.C.
Your aforesaid misdeed caused fear and terror among the
common public and in this way you committed an act which is
prejudicial to the maintenance of public order."
"2. That, on 13.2.1988 at about 11.45 P.M. in front of
Faize-e-Aam Inter College, Meerut on the open road you
alongwith your other companions displayed "gundaism" and
stopped Bus No. U.S.N. 8377 which was going from Medical
College to City Station and you had broken the glass screens
of the said bus and abused Shri Balram the driver and Vipin
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
the conductor of the bus, which caused fear and terror among
the general public. On the basis of the information given by
Shri Anil Gautam the Report No. 15 for non-cognizable
offence u/s 427, 504 of I.P.C. was registered at P.S. Delhi
Gate. In this way you acted in such a manner which is
prejudical to the maintenance of public order."
3. That, on 18.2.1988 near Caltex Petrol Pump on Delhi-
Muzzafar Nagar Road at about 9.10 O’clock at night you
alongwith your other three companions reached at the Book
stall situated at the aforesaid petrol pump, and holding him
by neck you pulled Shri Anil the book seller and you, with
intent to kill him gave blows of knife on his neck and chest
and you also assaulted with knife on other parts of his
body, because of which the nearby shops were closed down due
to fear and terror caused by you and the people were
alarmed. You committed the above misdeed because on 30th
December 1987 at about 7.00 P.M. you had teased a girl who
was the daughter of an Army Major, while she was buying a
magazine from the aforesaid Book-stall and this was objected
by Mr. Anil but you did not refrain from teasing the girl,
then Anil had beaten you. On which you and your companions
PG NO 973
threatened Mr. Anil that this Enmity will be too expensive
for him. On the basis of a written information given by Mr.
Brij Mohan, Crime No. 59 under Section 307 I.P.C. was
registered against you which, after the death of injured
Anil in the Hospital, was covered into an offence under
Section 302 of I.P.C. and this offence is under
investigation. Your aforesaid misdeed has caused fear and
terror among the general public and in this way you have
committed an act which is prejudicial to the maintenance of
public order.
At present you are confined in District Jail, Meerut,
and you are trying to get released on bail and there is
every possibility of you being released on bail."
(Emphasis Supplied)
Shri Garg submitted that the first two grounds which,
even according to the detaining-authority, constitute non-
cognizable offences negate th6e requisite degree or gravity
of the activity which could reasonably be said to be
productive of a "public-order" situation. The adhered
activities are liable to be dealt with in accordance with
the ordinary law of the land and that in both the cases a
certain Anil Gautam was the complainant and the attack was
against the bus belonging to him, it being incidentally
suggested that the driver and the conductor of the bus were
also released. It was not a part of the grounds, says
learned counsel, that there were passengers in the bus at
the time and conduct of the petitioner caused a scare
amongst them. The inference drawn by the detaining-authority
that the activities referred to in grounds (I) and (II) did
create a "public-order" situation is therefore, contends
counsel, vitiated by a lack of rational nexus between the
activity attributed to the petitioner and a "public-order"
situation. Learned counsel submitted that the satisfaction
to be reached by the detaining-authority, subjective though
it be must rest on material which is capable in law of
producing the satisfaction and the concept of "public-order"
is what law understands and recognises as such and not what
the detaining-authority misunderstands it to be.
5. In regard to the third ground of detention, learned
counsel said, the petitioner was taken into custody at 8.00
P.M. on 18.2.1988 and that the wireless message sent at 8.07
P.M. by the Mobile Van to the Circle Police Officer and the
Superintendent of Police had specifically referred to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
attack on Anil Gautam and had clearly omitted to mention the
PG NO 974
name of the petitioner and the alleged witnesses. Shri Garg
submitted that the allegations that the attack on Anil
Gautam at 9.10 PM that day, as now asserted in Ground No.
III would stand disproved if the original "Log-Book"
recording the wireless-messages had been produced. He
submitted the sheaf of loose sheets purporting to be "Log-
Book" produced before this Court was not the original "Log-
Book". These loose-sheets, it is urged, had been discarded
by the Learned Sessions Judge who had since granted Bail to
the petitioner. Learned Counsel submitted that the object of
the present detention was avowedly to render nugatory the
benefit of the Bail. Shri Garg relied upon the pronouncement
of this Court in Ramesh Yadav v. Distt Magistrate Etah, AIR
1986 SC 315, to contend that if the detention is ordered
because the detaining-authority was apprehensive that in
case the detenu was released on bail he would carry on his
criminal activity, it would not be a proper exercise of the
power to detain.
6. Shri Garg submitted that at 12.30 A.M. that very
night, on 18.2.1988 a certain Mirazuddin acting on behalf of
the petitioner, had sent a telegram to the Senior
Superintendent of Police, Meerut, complaining that the
petitioner had bee6n taken away by the police at 8.00
PM earlier that night. Shri Garg submitted that this
document which improbablised petitioner’s participation in
the incident alleged at 9.10 P.M. that night ought to have
been placed before and considered by the detaining-authority
and a non-consideration of this document vitiated the order
of detention for non-application of mind.
Shri Yogeshwar Prasad submitted that the three acts
attributed to the detenu had serious adverse effect on the
even tempo of life in the locality and produced a ’public-
order’ problem and that the detentionfully satisfied all the
procedural-safeguards.
7. Personal liberty protected under Article 21 of the
Constitution is held so sacrosanct and so high in the scale
of constitutional values that this Court has shown
great anxiety for its protection and wherever a petition for
writ of habeas-corpus is brought-up, it has been held that
the obligation of the detaining-authority is not confined
just to meet the specific-grounds of challenge but is one of
showing that the impugned detention meticulously accords
with the procedure established by law. Indeed the English
Courts a century ago echoed the stringency and concern of
this judicial vigilance in matters of personal liberty in
the following words:
PG NO 975
"Then comes the question upon the habeas corpus. It is
a general rule, which has always been acted upon by the
Courts of England, that if any person procures the
imprisonment of another he must take care to do by steps,
all of which are entirely regular, and that if he fails to
follow every step in the process with extreme regularity the
Court will not allow the imprisonment to continue." [Thomas
Pelham Dales’ case, (1881) 6 QBD 376 at page 461].
It has been said that the history of liberty has
largely been the history of observance of procedural
safeguards. The procedural sinews strengthening the
substance of the right to move the court against executive
invasion of personal liberty and the due dispatch of
judicial-business touching violations of this great is
stressed in the words of Lord Dinning:
"Whenever one of the King’s Judges takes his seat,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
there is one application which by long tradition has
priority over all others. Counsel has but to say ’My Lord, l
have an application which concerns the liberty of the
subject’ and forth-with the Judge will put all other matters
aside and hear it. It may be an application for a writ of
habeas corpus, or an application for bail, but, whatever
form it takes, it is heard first."
[Freedom under the Law, Hamlyn Lectures, 1949]
8. Personal liberty, is by every reckoning, the
greatest of human freedoms and the laws of preventive-
detention are strictly construed and a meticulous compliance
with the procedural safeguards, however technical, is
strictly insisted upon by the courts. The law on the matter
did not start on a clean state. The power of courts against
the harsh incongruities and unpredictabilities of preventive
detention is not a merely ’a page of history but a whole
volume. The compulsions of the primordial need to maintain
order in society. without which the enjoyment of all rights,
including the right to personal liberty, would lose all
their meaning are the true justifications for the laws of
preventive detention. The pressures of the day in regard to
the imperatives of the security of the State and of public-
order might. it is true, require the sacrifice of the
personal-liberty of individuals. L˜ws that provide for
preventive detention posit that an individual’s conduct
prejudicial to the maintenance of public-order or to the
security of State provides grounds for a satisfaction for a
reasonable prognostication of a possible future
PG NO 976
manifestations of similar propensities on the part of the
offender. This jurisdiction has been called a jurisdiction
of suspicion; but the compulsions of the very preservation
of the values of freedom, of democratic society and of
social order might compel a curtailment of individual
liberty. "To lose our country by a scrupulous adherence to
the written law" said Thomas Jeferrson "would be to lose the
law itself, with life, liberty and all those who are
enjoying with us; thus absurdly sacrificing the end to the
needs." This is, no doubt, the theoretical justification for
the law enabling preventive detention.
But the actual manner of administration of the law of
preventive detention is of utmost importance. The law has to
be justified by the genius of its administration so as to
strike the right balance between individual-liberty on the
one hand and the needs of an orderly society on the other.
But the realities of executive excesses in the actual
enforcement of the law have put the courts on the alert,
ever-ready to intervene and confine the power within strict
limits of the law both substantive and procedural. The
paradigms and value judgments of the maintenance of a right
balance are not static but vary according as the "pressures
of the day" and according as the intensity of the
imperatives that justify both the need for and the extent of
the curtailment to be individual liberty. Adjustments and
readjustments are constantly to be made and reviewed. No law
is an end in itself. The "inn that shelters for the night is
not journey’s end and the law, like the traveller, must be
ready for the morrow."
As to the approach to such laws which deprive personal
liberty without trial, the libertarian judicial faith has
made its choice between the pragmatic view and the
idealistic or doctrinaire view. The approach to the
curtailment of personal liberty which is an axiom of
democratic faith and of all civilised like is an idealistic
one for, loss or personal liberty deprives a man of all that
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
is worth living for and builds up deep resentments. Liberty
belongs what correspond to man’s inmost self. Of this
idealistic view in the judicial traditions of the free-
world, Justice Dougla said:
"Faith in America is faith in her free institutions or
it is nothing. The Constitution we adopted launched a
daring and bold experiment. Under that compact we agreed to
tolerate even ideas we despise. We also agreed never to
prosecute people merely for their ideas or beliefs ......."
[See: On Misconception of the Judicial Function and the
PG NO 977
Responsibility of the Bar, Columbia Law Review, Vol.
59, p. 232]
Judge Stanley H. Fuld of the New York Court of Appeals
said:
"It is a delusion to think that the nation’s security
is advanced by the sacrifice of the individual’s basic-
liberty. The fears and doubts of the moment may loom large,
but we lose more than we gain if we counter with a resort to
alian procedures or with a denial of essential
constitutional guarantees. "
[Quoted by Justice Douglas at p. 233--On Misconception
of the Judicial Function and the Responsibility of the Bar;
Columbia Law Review Vol. 59]
It was a part of the American judicial faith that the
Constitution and Nation are one and that it was not possible
to believe that national security did require what the
Constitution appeared to condemn.
Under our Constitution also the mandate is clear and
the envoy is left under no dilemma. The constitutional
philosophy of personal liberty is an idealistic view, the
curtailment of liberty for reasons of State’s security,
public-order, disruption of national economic discipline
etc. being envisaged as a necessary evil to be administered
under strict Constitutional restrictions.
In Ichudevi v. Union of lndia AIR 1980 SC 1983,
Bhagwati J. spoke of this Judicial commitment.
.... The Court has always regarded personal liberty as
the most precious possession of mankind and refused to
tolerate illegal detention, regardless of the social cost
involved in the release of a possible renegade.
(page 1988)
(Emphasis Supplied)
"This is an area where the court has been most strict
and scrupulous in ensuring observance with the requirements
of the law, and even where a requirement of the law is
breached in the slightest measure, the court has not
hesitated to strike down the order of detention ...."
(P. 1988)
(Emphasis Supplied)
PG NO 978
In Vijay Narain Singh v. State of Bihar, AIR 1984 SC
1334 Justice Chinnappa Reddy J. in his concurring majority
view said:
"....I do not agree with the view that those who are
responsible for the national security or for the maintenance
of public order must be the sole judges of what the national
security or public order requires. It is too perilous a pro-
position. Our Constitution does not give a carte blanche to
any organ of the State to be the sole arbiter in such
matters ...."
(p. 1336)
".... There are two sentinels, one at either end. The
legislature is required to make the law circumscribing the
limits within which persons may be preventively detained and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
providing for the safeguards prescribed by the Constitution
and the courts are required to examine, when demanded,
whether there has been any excessive detention, that is,
whether the limits set by the Constitution and the
legislature have been transgressed . . ."
( p 1336)
In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766,
it was observed:
"It is not permissible in matters relating to the
personal liberty and freedom of a citizen to take either a
liberal or a generous view of the lapses on the part of the
officers .......".
10. There are well recognised objective and judicial
tests of the subjective satisfaction for preventive
detention. Amongst other things, the material considered by
the detaining-authority in reaching the satisfaction must be
susceptible of the satisfaction both in law and in logic.
The tests are the usual administrative law tests where power
is couched in subjective language. There is, of course, the
requisite emphasis in the context of personal liberty.
Indeed the purpose of public-law and the public law courts
is to discipline power and strike at the illegality and
unfairness of Government wherever it is found. The
sufficiency of the evidentiary material or the degree of
probative criteria for the satisfaction for detention is of
course in the domain of the detaining-authority.
PG NO 979
To lose sight of the real and clear distinction between
the "public-order" and "law and order" might lead, in the
process of obliteration of their outlines, to the
impermissible engrafting of the latter on the former.
11. In the present case, we are not, however, impressed
with the submission of Shri Garg that the detention was
solely for the purpose of rendering nugatory the order of
bail, the grant of which the detaining-authority had then
considered quite imminent. It is true that if the only
ground or justification for the detention is the
apprehension that the detenu was likely to be enlarged on
bail, the detention might be rendered infirm. Sri Garg
relied upon the following observations in Ramesh Yadav’s
case (supra):
"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 higher6
forum had to be raised. Merely on the ground that an accused
in detention as an undertrial prisoner was likely to get
bail an order of detention under the National Security Act
should not ordinarily be passed ......." [AIR 1986 SC 315 at
316]
But, where, as here, there are other grounds, the
reference by the detaining authority to the prospects of
grant of bail could be no more than an emphasis on the
imminence of the recurrence of the offensive activities of
the detenu. Even a single instance of activity tending to
harm "public-order" might, in the circumstances of its
commission, reasonably supply justification for the
satisfaction as to a legitimate apprehension of a future
repetition of similar activity to the detriment of "public-
order". Likewise, without merit, is the contention as to the
impermissibility of an order of detention being made against
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
a person already in judicial custody. Even if a prosecution
against a person fails or bail is granted an order of
detention could be passed drawing the satisfaction therefor
from the facts and circumstances of each case. But it is
necessary for the detaining authority to resist the
temptation to prefer and substitute, as a matter of course,
PG NO 980
the easy expedience of a preventive detention to the more
cumbersome one of punitive detention. In Vijay Narain
Singh’s case (supra) this Court said:
" .........It is well settled that the law of
preventive detention is a hard law and therefore it should
be strictly construed. Care should be taken that the liberty
of a person is not jeopardised unless his case falls
squarely within the four corners of the relevant law. The
Law of preventive detention should not be used merely to
clip the wings of an accused who is involved in a criminal
prosecution..."
(P. 1345)
" ..... When a person is enlarged on bail by a
competent criminal court, great caution should be exercised
in scrutinising the validity of an order of preventive
detention which is based on the very same charge which is to
be tried by the criminal court ." ( P. 1345)
12. However, we are persuaded to the view that the
contention of Shri Garg that, the first two grounds which
pertain to the commission of non-cognizable offences have no
rational nexus relatable to the maintenance of public order
is to be accepted. It is true that the acts themselves, in
relation to their effect on public-order which might
otherwise be free from the vice of affecting public-order
might assume a sinister colour and significance from the
circumstances under and the manner in which they are done.
What might be an otherwise simple "law and order" situation
might assume the gravity and mischief of a "public-order"
problem by reason alone of the manner or circumstances in
which or the place at which it is carried out. These are
graphically dealt with by Hidayatullah, J. in Ram Manohar
Lohia v. State of Bihar, AIR 1966 SC 740. In the present
case the alleged attacks were directed directed the same
individual, a certain Anil Gautam, and, even according to
the police, they constituted Merely offences of a non-
cognizable nature. in the facts of the case, it is difficult
to impart to these acts, which were liable to be dealt with
under the ordinary laws of the land, a "public-order"
dimension within the meaning of and for purposes of the
extra-ordinary law of preventive detention.
13. So far as the third ground is concerned it is no
doubt a serious charge. The victim is the same Anil Gautam.
The Sessions Court has since enlarged the petitioner on
bail. It is alleged that the attack, in the manner in which
PG NO 981
it was made, spread tremors of fear in A the neighbourhood
and the shop-keeper in the vicinity pulled down their
shutters.
On the contrary, Petitioner avers that he had been taken
into custody earlier at 8.00 P.M. and his alleged presence
at the scene of occurance, which admittedly took place at
9.10 P.M., was wholly imaginary and concocted. The police
version is that the arrest was made only at 10.00 A.M. the
next-day. These matters are to be decided at the sessions-
trial. We cannot decide them here. It is not also necessary
to go into the controversy about the wireless message or
the genuineness of the "Log-Book" recording the message.
The Inspector General of Police. Meerut Zone and the Home
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
Secretary have stated n their affidavits that the extant
practice is to keep the "Log-Book" in the form of loose
sheets stapled together. The practice might perhaps required
improvement; but it is not necessary to say that the sheets
produced are not genuine. Learned Sessions Judge at the time
of gran of bail did not, however, accept them as the
original log-book’
It is equally unnecessary to decide whether the telegram
dispatched by Mirazuddin was at 12.30 mid-night on
18.2.1988 or as suggested by the Respondents at 12.30 noon
on 19.2.1988 It is extremely probable that it was sent not
at 12.30 mid night as claimed by the petitioner. but only at
12.30 noon on 19.2.1988 as suggested by Sri Yogeshwar
Prasad. But it cannot be disputed that such a telegram was
sent. This telegram asserts, for whatever it was worth,
that petitioner was taken into custody at 8.00 P.M. on
18.2.1988. The contention of Shri Garg is that the non-
consideration of this telegram, which had a bearing on the
complicity or otherwise of the petitioner in the alleged
offence vitiates the detention for non-application of
mind. The detaining authority in its affidavit says:
".....Deponent is not in a position to say about the
facts of the telegram. It might have been given in pesh-
bandi."
What weight the contents and assertions in the telegram
should carry is an altogether a different matter. It is not
disputed that the telegram was not placed before and
considered by the detaining-authority. There would be
vitiation of the detention on grounds of non-application, of
mind if a piece of evidence, which was relevant though not
binding, had not been considered at all. If a piece of
evidence which might reasonably have affected the decision
whether or not to pass an order of detention is excluded
from consideration. there would be a failure of application
PG NO 982
of mind which, in turn, vitiates the detention. The
detaining-authority might very well have come to the same
conclusion after considering this material; but in the facts
of the case the omission to consider the material assumes
materiality.
14. In the result, for the foregoing reasons, the writ
petition is allowed, the order of detention impugned in the
petition quashed and the petitioner is directed to be set at
liberty forthwith, unless he is held in custody pursuant to
any other order under any lawful authority. No costs.
R.S.S. Petition allowed.