JUDGMENT
O.P. Jain, J.
1. Habeas Corpus Petition No. 36969 of 1998 has been filed by Rafeeq alias Mantex and Habeas Corpus Petition No. 35426 of 1998 has been filed by Rashid alias Kalwa. Both the detenus have been detained by order passed under Section 3(3) of the National Security Act of 1980 (hereinafter called the Act). The order of detention has been passed by District Magistrate, Jyotiba Phule Nagar who is respondent No. 3. As the grounds of detention and the grounds on which the detention has been challenged are similar in both the cases, they are being disposed of by a common judgment.
2. We have heard Sri N. I. Jafri and Sri M. Islam on behalf of the petitioners and Sri Mahendra Pratap A.G.A. for the respondents and have gone through the record.
3. The ground of detention furnished to the detenus is Annexure-3 from which it appears that on 11th June, 1998 the Nikah of Km. Salma was to take place at about 4 P.M. with one Haneef. Co-accused Infaq alias Kaddi had proposed to marry Km. Salma, but Km. Salma refused to marry Infaq. On 10th June, 1998 at about 6 P.M. Infaq and his friends tried to pressurise Km. Salma but she again refused and, therefore, Infaq and his companion went away after holding out threats to Km. Salma.
4. On 1 lth June, 1998 at about 7 in the morning Km. Salma, her sister Km. Nazma and other family members were sitting in the courtyard of the house when Infaq alias Kaddi, Asif, Rashid alias Kalwa and Rafeeq armed with knives entered the house and assaulted Km. Salma with knives. When the family members tried to save her, the accused persons threatened them and killed Km. Salma on the spot. After killing Km. Salma the accused left the scene of occurrence brandishing their knives and creating terror in the locality. Due to the terror created by accused persons the neighbours hid in their houses. When the information was received by the police and the police reached the spot, they found that the doors of the houses in the vicinity were closed and there was silence in the locality. The police found some slippers (Chappals) scattered in the lane and the dead-body of Km. Salma was found in the courtyard. The family members were crying.
5. It is further mentioned in the grounds of detention (Annexure-3) that the neighbours were so much terrified that even after the accused had left the spot, no one came to help the family members of the deceased. It is further mentioned that Rashid himself had proposed to marry Km. Nazma, sister of deceased Km. Salma, one year back, but Nazma had refused to marry Rashid, and, therefore, Rashid was also inimical to the family. Rashid, Infaq and Asif are close friends and are related to Rashid. Therefore, all the four killed Km. Salma on the day on which she was to be married to Haneef.
6. Annexure-3 further recites that due to this barbaric murder of Km. Salma, the residents of Mohalla Lal Bagh and Hasanpur and nearby villages were terrified and they were very much agitated. The residents of the locality obstructed the traffic on Gajraula-Hasanpur by-pass road and various political parties threatened to obstruct the traffic if the accused are not arrested. In connection with this incident various entries were made in the General Diary of the Police Station from 11th June, 1998 to 24th August, 1998. The accused surrendered in Court on 18-6-1998 and tried to obtain bail. On the date on which the detention order was passed, the bail application filed by the accused was pending. It is further mentioned in Annexure-3 that the detenus and their friends and family members are constantly threatening the family members of Km. Salma and it is likely that they will repeat the crime.
7. On this ground accused Rafeeq and Rashid were detained. They filed a representation before the detaining authority and their case was referred to the Advisory Board. The detention was confirmed and the representation filed by the detenus was rejected. Therefore, they have filed the present Habeas Corpus Petitions.
8. The first contention on behalf of the detenus is that they were already in jail on 30th August, 1998 in connection with offence under Section 302, IPC registered on account of the death of Km. Salma and, therefore, there was no justification to pass an order of detention. The law on the point is settled. If the detaining authority has reason to believe that the detenus who are in jail are likely to be released on bail, the order of detention can be passed notwithstanding that the detenus are already in jail. It is mentioned in the grounds of detention that the detenus are trying to obtain bail and an application for bail has already been filed. In paragraph 11 of both the petitions it is mentioned that the copy of bail application dated 27-7-1998 produced by the sponsoring authority before the detaining authority was fabricated by the S.H.O. concerned and in fact no bail application had been filed on behalf of Rafeeq or Rashid.
9. We have carefully examined the record and in our opinion this allegation is totally baseless. A copy of bail application dated 27-8-1998 has not been enclosed with the petitions. The S.H.O. who is said to have forged the bail application has not been impleaded by name. Had the allegation been true, the petitioners would have produced a copy of the bail application and could have filed the affidavit of the Advocate concerned who may have said that no such bail application was filed by him. In the absence of such material, the allegation made on behalf of the detenus has to be rejected.
10. The second contention is that there is total non-application of mind on the part of the District Magistrate. In support of this contention it is pointed out that in the grounds of detention (Annexure-3), it is mentioned in the order relating to Rashid that he had proposed to marry Km. Salma’s sister Km. Nazma one year back, but Km. Nazma turned down his proposal. It is argued that a similar averment has been made in the grounds (Annexure-3) supplied to Rafeeq. It is argued that it is not possible that both Rafeeq as well as Rashid may have proposed to marry Km. Nazma at the same time.
11. This contention is found to be factually incorrect. In Annexure-3 relating to Rashid it is no doubt stated that he proposed to marry Km. Nazma and she refused, but in Annexure-3 relating to Rafeeq it is clearly mentioned that Rafeeq’s brother-in-law Rashid proposed to marry Km. Nazma and she refused. Therefore, it is wrong to suggest that similar allegations have been made in both the petitions and that there is non-application of mind.
12. The next contention on behalf of the detenus is that they have been detained on the basis of a single incident and there may have been a breach of law and order, but it is not a case in which there was breach of public order or public tranquillity. It is also argued that four persons are said to have taken part in killing Km. Salma, but only two of them have been detained and no reason has been given in the grounds of detention as to how the case of Rashid and Rafeeq is distinguishable from the case of Infaq and Asif.
13. First of all we will consider whether an order of detention can be passed on the basis of a single incident or not. We find that his matter has been considered by this Court in various cases. We will refer only 2-3 cases decided by this Court. In the case of Vijai Pal alias Pappu v. Union of India 1996 ACC 741, it has been held that an order of detention can be based on one solitary act. Whether a single act is sufficient or not to sustain an order of detention depends upon the gravity and nature of the act having regard to the fact whether the act is organised act or a manifestation of organised activities. In the cited case a reference has been made to Attorney General for India v. Amratlal Prajivaridas 1994 SCC (Criminal) 1325 : AIR 1994 SC 2179 : 1995 Cri LJ 426 in which it was observed that “though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity…. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.
14. This point was considered by this Court in the case of Farhat Khan v. State of U.P. 1997 JIC 1118 : 1997 All LJ 2313 : 1998 Cri LJ 1028 and various cases of the Apex Court have been discussed in paragraphs No. 34 to 37. The Court came to the conclusion that even a solitary incident can justify the detention if it is serious enough and if it had resulted in breach of public order as distinguished from law and order.
15. The same question was again considered in the case of Vinod v. Secretary, Ministry of Home Affairs, Government of India, New Delhi 1997 JIC 1185 : 1998 AIHC 18 (All). After considering various cases from paragraphs 19 to 31, the Court came to the conclusion that even on the basis of a single incident a person can be detained under National Security Act provided such single act has the effect of disturbing public order and even tempo of the life of the community or the society or the locality.
16. Now we proceed to examine the facts of the present case in the light of the observations made in the cases cited earlier. A perusal of various cases in which order of detention was passed on the basis of a single incident shows that the incidents were of a grave nature in which attack was made on the police party or it was a case of bank robbery or it was a case of high-way robbery particularly in broad daylight. In order to justify detention on the basis of a solitary incident ordinarily it should be shown that the offence was pre-planned. In some cases detention on the basis of a single incident has been justified because it involved communal disharmony. For example in the case of Vinod v. Secretary (supra) the incident was found capable of giving rise to the clash between scheduled caste and upper caste residents of the locality. So far as the case in hand is concerned the incident is very unfortunate and of a daring nature, but the motive for the commission of the offence was entirely personal and it is not likely that the detenus will repeat the offence. Where offence is committed for gain as in the case of robbery or dacoity, a repetition is bound to take place because there is no limit of greed; But in a case like the present where the detenu killed Km. Salma, because she failed to accept the marriage proposal on behalf of co-accused Infaq, it is highly unlikely that the detenus will commit a similar offence again. It is mentioned in the grounds of detention that the incident has taken place in a crowded Muslim locality. But the victim as well as the detenus both belonged to the same community and, therefore, it was not likely that the incident may have given rise to communal tension. The grounds of detention (Annexure-3) recites that the people of the locality were terrified and the shops were closed and traffic was obstructed. This kind of reaction is likely in most of the cases of murder in broad daylight. That, however, does not mean that in every case of broad day-light murder the accused have to be detained under National Security Act.
17. After carefully considering the grounds of detention we are of the opinion that the incident did give rise to law and order problem for the police and special force had to be deployed in the locality for sometime, but we are not satisfied that it is a case in which public order was affected to a great extent. We are conscious of the fact that in cases of detention, it is the subjective satisfaction of the District Magistrate and this Court does not sit as a Court of appeal to appreciate the correctness of the facts or sufficiency of the material. But accepting the facts narrated in the grounds of detention as correct, we are of the opinion that the detention of the detenus under National Security Act was not justified.
18. As we have already come to the conclusion that the detention of petitioners Rafeeq and Rashid was not justified, it is unnecessary to consider the further argument that the order of detention is discriminatory. It was argued that four persons, namely, Rafeeq, Rashid, Asif and Infaq took part in the incident and yet only Rafeeq and Rashid have been detained. It was also argued that it was Infaq who proposed to marriage Km. Salma and he should have been the first person to be detained. In our opinion this contention cannot be upheld because recently a Full Bench of this Court has held in Habeas Corpus Petition No. 10215 of 1998, Chandresh Paswan v. State of U.P., decided on 26th February, 1999 (Reported in 1999 All LJ 1167) : 1999 Cri LJ 2759 that the principle of parity is not applicable in the case of detention under National Security Act.
19. In view of the above discussion, both the Habeas Corpus Petitions are allowed and the detention order dated 30th August, 1998 (Annexure-2) passed by District Magistrate, Jyotiba Phule Nagar, respondent No. 3, in both the cases is hereby quashed. Petitioners Rafeeq alias Mantex and Rashid alias Kalwa are ordered to be released from custody unless they are wanted in any other case.