JUDGMENT
N.L. Ganguly, J.
1. The petitioner prayed for issuing a writ in the nature of Habeas Corpus commanding the respondents to release the petitioner at liberty and to quash the detention order dated 2-11-1995, Annexure-3 to the petition. The District Magistrate, Moradabad passed an order under Section 3(ii) of the National Security Act, 1980, hereinafter referred to as ‘the Act’, on the basis of an offence committed on 12-10-1995 in Mohalla Lal Bagh P. S. Mughalpura district Moradabad. It is alleged that an accident took place on 12-10-1995 when a Hindu girl Km. Gita Bhutani aged about 15 years was returning to her house from tution at about 9 p.m. a muslim scooter driver hit Km. Gita Bhutani on road near Lal Bagh. Her father Nathu Ram Bhutani got an F. I. R. registered at P. S. Mughalpura under Section 279/338, I.P.C. It is in the grounds of detention that the petitioner along with his associates started spreading false news and information, which resulted in instigating the communal feelings between Hindu and Muslim. The result of the rumour and news spread by the petitioner and his associates was that there was an exchange of brick-batting between the people present there and one community started attempting to assault the other. It is said that the petitioner with his associates Charan Singh, Subhash, Suresh, Naresh, Teju and others had jointly started pelting brick-bats on people of the muslim community and the police, which created a terror and panic in the locality. The people of the locality on account of terror, apprehension and fear shut the doors and windows of their houses, which completely disrupted the public peace and order. The Sub-Inspector of Police of P. S. Mughalpura lodged a report under Sections 147, 307, 336 and 504, I. P. C. against Subhash Tewari. It is said that during investigation of the said case sufficient evidence was collected against the petitioner. Sri Wakar Ahmad r/o. of Mohalla Kanungoyan P. W. Mughalpura lodged another report under Sections 336, 323 and 504, I. P. C. and Shahadat Hussain alias Chhotey R/o. Mohalla Nawabpura Pulia Ghoxian P. S. Nagphani also lodged an F. I. R. under Section 307/504, I. P. C. It is said in the grounds of detention that all these F.I.Rs. had been lodged on account of the deeds of the petitioner spreading false rumours and news on 12-10-1995. It is also said that on account of the communal feelings and tensoin, which was created on account of the facts and deeds of the petitioner on 12-10-1995 at 23.30 hours in Mohalla Nawabpura P. S. Nagphani one Hindu youngman Prem was assaulted by knife and iron rod and he was admitted in the district hospital at Moradabad in a precarious condition. Sri Mohan Singh r/o. Mohalla Nawabpura got an F. I. R. registered at P. S. Nagphani, Moradabad under Section 307, I. P. C. which is also pending investigation.
2. It is said in the ground of detention that on account of daring and criminal acts of the petitioner, which created communal tension and raised hatred between Hindu and Muslim communities, atmosphere of terror, and lawlessness had been created and the law and order situation had be-come disrupted. The detaining authority on the basis of the aforesaid facts and circumstances having satisfied that in case the petitioner is released on bail there was likelihood of commission and repetition of such acts which was likely to disturb and disrupt the public peace and law and order situation, passed the order detaining the petitioner under the National Security Act.
3. The petitioner was arrested on 12-10-1995. He applied for bail and was granted bail on 14-11-1995. The detention order was executed and served on the petitioner in jail through the jail authorities on 2-11-1995. The grounds of detention was served on the petitioner on 2-11-1995 along with the detention order, a copy of which is annexed as Annexure-A to the petition.
4. The petitioner stated in the petition that along with the grounds of detention, certain documents were also enclosed, true copies of which have also been annexed to the petition as Annexure-2. It has been stated that the perusal of the F. I. R. lodged by Sub-Inspector Sri Subhash Tewari’ shows that the petitioner had got no concern with the aforesaid case and it is apparent that the said F. I. R. does not mention the name of the petitioner as a person to have indulged in brick batting against any community or against the police force. It is also not stated therein that any person received any injury in the alleged brick batting by the petitioner. The petitioner stated that on the said date there was no communal tension or brick-batting. Neither shops were closed nor there was any stone on the road. The petitioner has annexed the affidavits of S/Sri Amir Ahmad, Haneef, Rizwan, Puran Lal, Tejvir Singh, Piarey Lal and others as Annexures 2 B C D E F to the writ petition. The petitioner stated that he is a daily labourer and poor man belonging to lower strata of society and earns his livelihood daily. He is not connected in any manner with any political or religious party. The police misused their power and had lodged the F. I. R. in which no public independent witness has been mentioned nor any person received any injury. The petitioner is not concerned or named in any manner in the said F. I. R. The police has given undue importance to a road accident in which no one had died and there was no rhyme or reason for any action under the Act.
5. The detention order dated 2-11-1995 was approved on 9-11-1995 by the State Government. The petitioner had submitted a representation on 16-11-95 through the jail authorities, a copy of which is annexed as Annexure 4 to the writ petition. The matter was referred to the Advisory Board by the State Government under Section 10 of the Act without complying with the mandatory provisions of Section 10 of the Act and the Advisory Board, in its turn, informed the State Government that there were sufficient reasons to detain the petitioner under the Act.
6. Sri J. N. Chamber, the then District Magistrate, Moradabad, Sri Gopal Dutt, U.D.A. Confidential Section 7, U.P. Civil Secretariat, Lucknow and Sri. R.N. Upadhyaya, Senior Superintendent, District Jail, Moradabad filed counter-affidavits. Rejoinder affidavit has also been filed on behalf of the petitioner.
7. The learned counsel for the petitioner Sri Brijesh Sahai submitted that there was delay in sending the comments to the detaining authority, that it was solitary incident in which also the petitioner is not named to be an accused committing the offence and it has been submitted that the petitioner is in jail, that the detaining authority was aware or this tact, that he should have mentioned that there was likelihood of grant of bail to the petitioner and if bail was granted, it would likely to affect the law and order situation. No antecedent or criminal history of the petitioner or cogent material was there before the detaining authority which may justify the detention of the petitioner under the Act.
8. Sri J. N. Chamber, the then District Magistrate, Moradabad in para 4 of his counter-affidavit stated that the occurrence relating to the case Crime No. .128 of 1995 took place in the busy locality of the city of Moradabad. The effect of the incident was such that the communal tension spread in the area and people started running helter and skelter. The public tranquillity was disturbed there. These were the materials considered by him. Copies of the documents were also supplied to the petitioner who had signed the acknowledgement receipt there of Sri Chamber in his affidavit stated that the detailed facts have been mentioned in the F. I. R. as well as in other materials, copies of which have been supplied to the petitioner along with the grounds of detention. There are other materials from which the involvement of the petitioner has been established. The police investigated the case and filed chargesheet on 30-12-1995 and the case is pending trial in a competent court of law. The alleged affidavits, which have been filed by the petitioner along with the petition appear to have been prepared on 10-11 -1995, Obviously these materials were procured by the petitioner alter the detention order was passed on 2-11 -1995. He denied that there was no concern of the petitioner with the criminal case. It has not been denied that the petitioner is a daily labourer. However, it has been stated that the manner in which the petitioner had participated in the said incident, clearly establishes that the petitioner had disturbed the tempo of life in the area. It was the subjective satisfaction of the District Magistrate, who after satisfying himself and after full application of mind passed the detention order against the petitioner.
9. The main reply to the argument of the learned counsel for the petitioner is that the detention order was approved by the State Government on 9-11-1995. The petitioner had submitted his representation through the jail authorities on 16-11-1995 which was sent to the District Magistrate on 16-11-1995 itself. The District Magistrate in his counter-affidavit stated that he sent it to the Senior Superintendent of Police on 13-11-1995. The Senior Superintendent of Police after receiving the same prepared his comments and sent the same to the District Magistrate. On 18-11-1995 the District Magistrate prepared his comments and sent the same to the State Government on 19-11-1995, which were received by the State Government on 21-11-1995. The representation of the petitioner was addressed to the Home Secretary, Government of U. P. only, although the petitioner has been informed that he can make representation to the State Government as well as the Central Government both. It was denied that the petitioner was not informed that he can make representation to the Central Government also.
10. Sri Gopal Dutt, U.D.A. of Civil Secretariat, U. P. Lucknow stated that the detention order dated 2-11 -95, grounds thereof and all other connected papers forwarded by the District Magistrate, Moradabad were received by the State Government on 3-11-199.). Alter examining every aspect of the case of the petitioner in detail the order of detention was approved by the State Government on 8-11-1995 well within 12 days as required under Section 3(4) of the Act. The fact about the approval of the detention order was communicated to the petitioner through the District authorities by the State Government on 9-11-1995 and on the same day copies of the detention order, grounds of detention and all other relevant papers were reported to be sent to the Central Government, which were received by the Secretary, Ministry of Home Affairs, New Delhi on 10-11-1995 well within seven days from the date of approval as required under Section 3(5) of the Act. It has been stated that the petitioner’s case was referred to the Advisory Board on 13-11-1995 by .the State Government as required under Section 10 of the Act along with the detention order, grounds of detention and other necessary papers.
11. The counter-affidavit of Sri R. N. Upadhyaya, Senior Superintendent of District Jail, Moradabad has not been referred to by either of the counsel.
12. Sri Brijesh Sahai cited a number of decisions which we shall consider as under:
13. AIR 1991 SC 2261 : (1991 Cri. LJ 3291) Abdul Sathar Ibrahim Manal v. Union of India. The learned counsel for the petitioner referred to paras 4i 5 and 13 of the said decision and submitted that on the date the detention order-was served on the detenu he was in jail. The detenu was not on bail on the said date nor it has been said in the detention order that he was likely to be granted bail. The learned counsel submitted that the order of detention under the Act was passed without application of mind in arriving at the necessary satisfaction for detaining the petitioner under the Act that the petitioner is in jail and there was likelihood for grant of bail to him and repetition of commission of such offence and for maintenance of law and order the detention of the petitioner under the Act was necessary. The Hon’ble Supreme Court in the aforesaid decision (supra) arrived at a principle on the subject after considering the earlier Supreme Court judgments reported in AIR 1989 SC 2265, S.N. Sinha v. Commissioner of Police, Ahmedabad and AIR 1964 SC 334 : (1964 All LJ 211), Rameshwar Shaw v. District Magistrate, Burdwan. The principle is quoted as under :
On a consideration of the aforesaid decisions the principle that emerges is that there must be awareness in the mind of the detaining authority that the detenu is in custody at the time of service of the order of detention on him and cogent relevant materials and afresh facts have been disclosed which necessitate the making of an order of detention. In this case, the detenu was in jail custody in connection with a criminal case and the order of detention was served on him in jail. It is also evident that the application for bail filed by the detenu was rejected by the Designated Court on May 13,1988. It is also not disputed that no application for bail was made for release of the detenu before the order of detention was served on him on May 23, 1988. It appears that in the grounds of detention there is a statement that at present you are in jail yet there are full possibilities that you may be released on bail in this offence also! This statement clearly shows that the detaining authority was completely unaware of the fact that no application for bail was made on behalf of the detenu for his release before the Designated Court and as such the possibility of his coming out on bail was non-existent. This fact of non-awareness of the detaining authority, in our opinion, clearly establishes that the subjective satisfaction was not arrived at by the detaining authority on consideration of relevant materials. There is also nothing to show from the grounds of detention nor any fresh facts have been disclosed after the detention order dated January 25, 1988 was set aside by the Advisory Board on March 13, 1988 on the Basis of which the detaining authority could come to his subjective satisfaction that the detenu, if released on bail, will indulge in acts prejudicial to the maintenance of public order and as such an order of detention is imperative.
Having so observed the Division Bench referred to various criminal cases pending against the detenu at the relevant time and noted that some of the cases have nothing to do with the maintenance of public order and then held that (at p. 2273 of AIR):
These statements do not disclose any activity after March 14, 1988 or any activity at the time when the detenu was a free person. Considering all these facts and circumstances we are constrained to hold that there has been no subjective satisfaction by the detaining authority on a consideration of the relevant materials on the basis of which the impugned order of detention has been clamped on the detenu. It also appears that the detenue was in detention as well as in jail custody for about three years except released on parole for short periods.
14. The perusal of the said judgment shows a background, a mere bald statement that the detenu, who is in custody is likely to be released on bail and there are full possibilities that he may continue the above offensive activities without reference to any particular case or acts does not show on the face of the order of detention that there has been subjective satisfaction by the detaining authority in making the order of detention in question.
15. In AIR 1989 SC 2027 : (1989 Cri LJ 2190) Meera Rani v. Government of Tamil Nadu, the apex Court was considering the question of awareness of the detaining authority before passing the order of detention that the detenu was already in detention and the order for preventive detention was passed and served when he was in detention does not render the detention order illegal.
16. The learned counsel for the petitioner cited 1990 (27) Allahabad Criminal Cases 187 :(1991 All LJ 437), Abhishek Malviya alias Munnu v. State of U.P. The Division Bench of this Court observed that mere recital and bald statement in the grounds of detention order that if the detenu is released he is likely to act prejudicially to the interest of public order is not sufficient ground. There should be some cogent material on record.
17. The learned counsel for the petitioner also cited 1990 SCC (Cri) 96 : (AIR 1990 SC 516) Anand Prakash v. State of U.P. and 1994 (4) SCC (Crl) 169 : (1995 All LJ 777) Surya Prakash Sharma v. State of U.P.
18. It is clear from the grounds of detention that the detaining authority in the grounds of detention itself staled that the detenu is a bold person with criminal and communal mentality and on account of his acts in spreading Hindu and Muslim communal feelings and exaggerating the same by the acts and deeds, which creates fear, terror and apprehension and the public peace and law and order is disturbed. The perusal of the grounds itself shows that the detaining authority was fully aware that the detenu was already confined in jail and it was clearly mentioned that in case he was released from jail there was every chance of repetition of commission of such acts by which the law and order and public peace was likely to be affected seriously and it was necessary for maintaining law and order that he be detained under the provisions of the Act. The grounds of detention clearly mention that the representation may be submitted before the State Government, Home Secretary and to the Secretary, Central Government through the jail authorities. The fact that the detaining authority had fully known that the detenu was confined in jail on the date of passing of the impugned order has been stated by the District Magistrate, J. N. Chambarand also by Sri Gopal Dutta, U. D. A. of the Secretariate, U. P. Government.
19. Sri Tripathi, learned A. G. A. submitted that solitary instance is sufficient to pass detention order. He submitted that if the Detaining Authority found that the communal tensions have run high and some or the other community led by one or two of its leaders or in which some of the participants take active and specific part and such incident was taken to be one disturbing public order, action undo- the Act cannot be said to be bad simply on the ground that it was a solitary incident. Sri Tripathi placed reliance from 1994 All WC 1 (Altaf alias Bare Abba v. District Magistrate, Kanpur). He submitted that the grounds of detention, likelihood of release on bail, would be sufficient for the detaining authority to feel satisfied that in order to prevent the accused an order of detention under the Act was necessary. The Division Bench relied 1989 SCC (Crl) 756 Smt. Vimla Rani’s case in which it has been laid that:-
When an incident was such that it created communal tension and the authorities were apprehensive of the breaking of communal riot, such incident in itself may be sufficient and may afford justification for the satisfaction of the detaining authority for the detention of the detenu in order to prevent him from indulging in such activity prejudicial to public order even though there are no antecedent acts of similar nature or past history of commission of crime by the detenu.
Similarly in 1988 All LJ 43 Nain Kana and 1988 ALJ 249, the Division Bench of our Court went into the question of public order and law and order and in the latter of them (In Bhullu) a single incident without any past history was held sufficient to satisfy the detaining authority to pass an order of detention under the Act. He relied on the decision reported in 1993(3) JT (SC) 666 :(1993 AIR SCW 2305) (Kamla Bai v. Commissioner of Police, Nagpur) in which the Hon’ble Supreme Court was considering two questions, firstly whether the delay in consideration of the representation itself is sufficient to quash the detention order. It was held by the Hon’ble Supreme Court that a short delay cannot be given undue importance, having regard to the administrative action. In the said case, there was delay from 18-6-1992 to 13-7-1992 and no explanation was given regarding the delay. The Hon’ble Supreme Court repelled the submission observing that a short delay cannot be given undue importance having regard to the administrative action.
20. Sri Tripathi, learned A. G. A. also drew the attention of the court to the case of Smt. Vimla Rani 1989 SCC (Crl) 756 which was also approved in (1993) 3 JT (SC) 666 : 1993 AIR SCW 2305.
21. The learned A. G. A. claimed that in Crime No. 328/1995 under Sections 147, 307, 336 and 504, I.P.C. one Charan Singh accused was arrested and during his interrogation about the present occurrence he named the petitioner as one of the participants and a mention of it was also made in the G. D. of the Police Station about this statement and apart from it there were the statements of Net Ram and Sadiq witnesses showing active participation of the petitioner in the present occurrence. The learned A. G. A. has produced before us the original record and claimed that copies of all the documents relied upon against the petitioner were supplied to him and his thumb impressions were taken on the record in token thereof. The record contained copy of the Parcha of the case diary of case Crime No. 328/95 aforesaid in which Charan Singh was arrested, which contained the statement of Charan Singh aforesaid and the case diary of the police station containing Taskara of this interrogation of Charan Singh. The record also contained copies of the statements of Net Ram and Sadiq and the thumb impressions of the petitioner are also present on these documents as claimed. So it cannot be said that there was no material connecting the petitioner with the occurrence.
22. Sri Tripathi relied on AIR 1983 SC 1130 : (1983 Cri LJ 1649), Ali Jan Mian v. District Magistrate, Dhanbad and submitted that the Supreme Court in AIR 1983 SC 1130 : (1983 Cri LJ 1649) (supra) relied upon K.M. Chokshi v. State of Gujarat (1979) 4 SCC 14 : (AIR 1979 SC 1945) where the Apex Court had observed as under (at page 1947; of AIR):
The principles emerging from a review of the above case may be summarised in the following way : The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. But the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention.
In Alijan Mian’s case, the Apex Court concluded that the criminal prosecution is not an absolute bar to an order of preventsve detention. If the detaining authority has the subjective satisfaction that it was necessary to detain the petitioners, to prevent them from indulging any activity prejudicial to public order, he could certainly order the detention of the petitioners.
23. The learned A. G. A. also placed reliance on AIR 1970 SC 1228 : (1970 Cri LJ 1136) Arun Ghosh v. State of West Bengal, where the Hon’ble Supreme Court explained the distinction between the act subversive of public order and the act, law and order. After examining the illustrations in the said judgment, it was observed that an act committed by a detenu may in facts and circumstances in a particular case, howsoever, reprehensible, the conduct may be, may some times according to the facts may not constitute breach of public order but in different circumstances and facts, the same may disturb the society and community to draw the inference of breach of the public order, Sri Tripathi submitted that the act and conduct of the detenu clearly shows that on 12-10-85 when a Hindu girl Km. Geeta Bhutani was returning after her tution to her house at about 9 p.m., a Muslim scooterists hit Km. Geeta Bhutani. On account of the incident, her father lodged a report at the police station under Sections 279/338, I.P.C. and after the lodging of the report of the said incident, the detenu with his associates started raising false news and instigated the feelings of the Hindus and communal tension was created on account of the Act of detenu and his associates. There was pelting of brick-bats between the two communities and persons of one community started brick-batting and pelting of stones, even to kill the persons of the other community. The detenue along with his associates Charan Singh, Subhash, Suresh, Naresh, Teju and others had pelted brickbats and stones heavily on the people of the other community and the police which created reign of terror in the entire locality. Out of fear and terror, the people started running helter and shelter. People shut their doors and windows and confined themselves inside their houses and the entire public order was disturbed severely and the report was lodged by the Sub-Inspector of Police of P. S. Mughalpura in Crime No. 328 of 1995 under Sections 147, 307, 336 and 504, I.P.C. These circumstances which disturbed the public order and peace and the detaining authority was satisfied on the report of the police who after satisfying him-self that the action of the detenue was such which was serious and caused public disorder and reign of terror was created.
24. In AIR 1974 SC 2149: (1974 Cri LJ 1474) Kartick Chandra Guha v. State of West Bengal the Apex Court was pleased to observe that the detenue was held in custody in connection with the offences under the Arms Act and it was open to the Trying Magistrate to release the detenu on bail. The detaining authority on information received by him, thought that the detenu was likely to be released on bail, in which case having regard to his past activity, it was open to the District Magistrate to come to a reasonable conclusion that having regard to the disperate nature of the activity of the petitioner, his enlargement on bail, would be no deterrent to his desparate activity and the District Magistrate was entitled to pass the order of detention, if that was necessary to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order.
25. The submission of the learned A. G. A. is that it is not necessary that there should be repetition of commission of offences to come to a conclusion that the acts of the detenu was detrimental and affecting the public order. A solitary incident, if it was such which created a terror and disturbance in the public order, the people become panicy and the communal feeling was flared up, the circumstances were such which were considered by the detaining authority to have necessitated the preventive order under the Act and the order was passed having fully known that the petitioner was in jail at the time of passing of the order for detention.
26. In the rejoinder argument Sri Brijesh Sahai reiterated his initial argument and submitted that the incident alleging creation of apprehension of the communal tension was on 10-2-95 and the order of detention was passed on 2-11 -96, which was highly belated and the circumstances show that there was no nexus and necessity of relevance for passing the impugned detention order. Sri Sahai submitted that the detention order and grounds of detention are vague. The petitioner was not in a position to furnish the explanation and defence on the ground of vagueness.
27. We have considered the arguments of the learned counsel for the petitioner and the learned A. G. A. We have considered the facts and circumstances of the case in detail. After examing the detention order and grounds for detention, we don’t find any substance in the submission that the detention order and the grounds are in any manner illegal. The necessary documents in support of the grounds were all supplied to the detenu and the original record produced by the learned A.G.A. shows that he has made his signature on the acknowledgement of the receipt thereof. In the representation also, the detenu has not said that he failed to understand and appreciate the allegations against him in the grounds of detention on account of vagueness. Such a plea raised in the writ petition is of no consequences. A perusal of the record and affidavits filed by the parties, show that the detaining authority had satisfied themselves after due application of mind for invoking the provisions of the National Security Act for detaining the petitioner as he was likely to be enlarged on bail. It will not effect that the impugned order was not passed soon after the report about the incident after which the detenu and his associates created a panic and disturbed the public order and an atmosphere of communal tension was created. It was not only people of the other community on whom brick-bats and stones were thrown but the police was also not spared on whom also brick-bats and stones were pelted. This was the case which disturbed the public order seriously and the detaining authority was justified and fully competent to pass the detention order against the petitioner under the Act. We don’t find any good ground or illegality on facts and legal aspect involved in the case. We arc not satisfied that there was any illegality or error by the detaining authority in arriving at the subjective satisfaction for passing the detention order against the petitioner.
28. The writ petition is hereby dismissed. The parties to bear costs.