TMI Blog1989 (9) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly. Let the petitioner be set at liberty forthwith unless he is required for any other offence under any other Act - Writ Petition (Criminal) No. 200 of 1989 - - - Dated:- 6-9-1989 - SABYASACHI MUKHARJI B.C. RAY, JJ For the Petitioner : C.P. Mittal For the Respondents : Anil Dev Singh, Yogeshwar Prasad, Ms. Kitty Kumar Mangalam, Ms. A Subhashini, Anil Malik and D. Bhandari JUDGMENT This petition under Article 32 of the Constitution challenges the detention of the peti- tioner--a ,detenu, under s. 3(2) of the National Security Act, 1980 (hereinafter called 'the Act'). The petitioner is a bachelor. He does not own any property. The order for detention under s. 3(2) of the Act was passed on April 15, 1988 by the District Magistrate, Meerut. In the grounds of detention it is stated that on the night of 2/3rd April, 1988 which was an occasion of "Shabberat" festival, a muslim festival, the religious celebration was going on at Gudfi Chaupala. At about 11 p.m. in the night on that day, a cow belonging to the muslims of Ismail Nagar came from Sabun Garan towards Chaupal Gudri and was going towards Ismail Nagar and, according to the order of detention, 'some unde- si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention was confirmed. In this petition various grounds have been taken before this Court challenging the order under Article 32 of the Constitution. Mr. C.P. Mittal, learned counsel for the petitioner, however, urged before us three grounds upon which he contended that the said order be quashed or set aside. It was submitted by Mr. Mittal that there was inordinate delay in arresting the petitioner pursuant to the order, which indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order and that preventive detention of the petitioner was necessary for preventing him from such conduct. He .further submitted that delay in the circumstances of this case in arresting the petitioner and or in acting pursuant to the order indi- cated that the "so-called grounds" were merely make-belief and not genuine grounds upon which the satisfaction of the authority concerned was based. In answer to this contention, on behalf of the Distt. Magistrate, Meerut, by an affidavit affirmed on 28th August, 1989 and filed in these proceedings, stated that raids on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to judicial review. Counsel for the petitioner contends that in the aforesaid facts and the circumstances if the conduct of the petitioner was such that it required preventive detention, not any punitive action, for the purpose of "preventing" the person concerned from doing things or indulging in activities which will jeopardise, hamper or affect maintenance of public order then there must be action in pursuance of the order of detention with promptitude. Delay, unexplained and not justified, by the circumstances and the exigencies of the situation, is indicative of the fact that the authorities concerned were not or could not have been satisfied that "preventive custody" of the person concerned was necessary to prevent him from acting in any manner prejudicial to the maintenance of public order. Whether there has been unrea- sonable delay, depends upon the facts and the circumstances of a particular situation. Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts. In the interest of public order, for the greater good of the commu- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but because of 'the inadequacy' or 'inability of the police force of Meerut City to control the situation. Therefore, the fact is that there was delay. The further fact is that the delay is unexplained or not warranted by the facts situation. To shift the blame for public order situation and raise the bogey of the conduct of the petitioner would not be proof of genuine or real belief about the conduct of the petitioner but only raising a red herring. This question was examined by this Court in Nizamuddin v. The State of West Bengal, [1975] 2 SCR 593. The question involved therein was under s. 3(2) of the Internal Security Act, 1971. There was delay of about two and a half months in detaining the peti- tioner pursuant to the order of detention and the Court considered that unless the delay was satisfactorily ex- plained, it would throw considerable doubt on the genuine- ness of the subjective satisfaction of the Distt. Magistrate recited in the order of detention. Mr. Justice Bhagwati, as the learned Chief Justice then was, speaking for the Court observed at page 595 of the report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to believe that the delay was unrea- sonable. Whether the delay was unreasonable depends on the facts and the circumstances of each case. We are satisfied, in view of the facts and circumstances of the case mentioned before, that by the conduct of the respondent authorities, there was undue delay, delay not commensurate with the facts situation in this case. the conduct as aforesaid betrayed that there was no real and genuine apprehension that the petitioner was likely to act in any manner prejudicial to public order. The order, therefore, is bad and must go. The next ground urged in support of this application was that the grounds mentioned were not germane to maintenance of 'public order'. It was submitted that the petitioner has only alleged inefficiency or incompetency of the police either in providing a loud speaker or in ensuring that the cows do not enter into or within the arena of muslim festi- vals. It was submitted that the criticism of the administra- tion is not endangering public order. Mr. Mittal submitted that it was not a question of law and order but public order that is important in this case. What the petitioner has alleged to have done may have some relevanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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