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Smt Shashi Aggarwal v. State Of U.P And Others
Factual and Procedural Background
The writ petition challenged the preventive detention of Arun Aggarwal under Section 3(2) of the National Security Act, 1980. The District Magistrate, Meerut issued the detention order on 3-8-1987, citing five incidents of alleged communal violence that all occurred on 19-5-1987. At the time of detention Aggarwal was already in custody, having been arrested on 2-8-1987 for non-bailable offences arising out of those incidents. The State Government approved the detention after receiving the Advisory Board’s opinion under Section 12(1) of the Act. On 18-12-1987 the Supreme Court quashed the detention by a short operative order and released the detenu; the present opinion sets out the reasons for that decision.
Legal Issues Presented
- Whether a preventive detention order can be sustained solely on the ground that the detenu is “trying to come out on bail” and may be released, without specific material showing that, once released, he would engage in activities prejudicial to public order.
- Whether the factual assertion in the detention order—that the detenu’s alleged acts caused the outbreak of communal riots—was accurate and relevant to the satisfaction of the detaining authority.
Arguments of the Parties
State's Arguments
- Relied on the Supreme Court decision in Alijan Mian v. District Magistrate, Dhanbad (1983) 4 SCC 301 to contend that an order of detention is permissible where the detaining authority is satisfied that the detenu is likely to be released on bail and, if released, would act prejudicially to public order.
- Submitted that later decisions cited by the petitioner were not in harmony with the ratio of Alijan Mian.
No detailed arguments of the petitioner were recorded in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Alijan Mian v. District Magistrate, Dhanbad (1983) 4 SCC 301 | A detention order may be upheld if the detaining authority has material to believe that the detenu is likely to be released on bail and would engage in prejudicial activities. | Considered but distinguished; the Court found that, unlike in Alijan Mian, no material existed here showing a likelihood of prejudicial conduct upon release. |
| Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232 | Mere apprehension of release on bail is insufficient; the State must oppose bail or challenge it judicially instead of invoking preventive detention. | Relied on to emphasise that preventive detention should not “ordinarily” be used merely because an under-trial might secure bail. |
| Binod Singh v. District Magistrate, Dhanbad (1986) 4 SCC 416 | A bald assertion that the detenu may be released is inadequate; there must be cogent material demonstrating likely prejudicial activity post-release. | Cited to underline the necessity of “credible information or cogent reasons” before detaining a person already in custody. |
| Poonam Lata v. M.L. Wadhawan (1987) 4 SCC 48 | Restates that preventive detention of a person already in custody must be supported by compelling reasons evident on record. | Used to summarise the governing principles and to test the impugned order against those standards. |
Court's Reasoning and Analysis
1. The Court first noted an inaccuracy in the detention order: it linked the May 19 incidents to the outbreak of communal riots, whereas the State’s counter-affidavit conceded that riots had erupted earlier, on 14-4-1987 and again during the night of May 18/19. This cast doubt on the factual basis of the detaining authority’s satisfaction.
2. Turning to the primary issue, the Court recited settled principles: preventive detention of a person already in custody is permissible only if (a) the authority is aware of that custody, (b) there is reliable material that the detenu is likely to be released, and (c) there are compelling reasons to believe he would engage in prejudicial acts upon release.
3. Applying those principles, the Court found:
- The order merely stated that Aggarwal “is trying to come out on bail and there is enough possibility of [his] being bailed out,” without disclosing any concrete material supporting that conclusion.
- No evidence or specific information was placed on record to show a nexus between possible release on bail and likely future disturbance of public order.
- Accordingly, the detention was based on a “bald statement” insufficient under the standards articulated in Ramesh Yadav and Binod Singh, and not protected by the reasoning in Alijan Mian.
4. Because the statutory pre-condition of objective satisfaction, grounded in relevant material, was absent, the detention violated the National Security Act and Article 21 of the Constitution.
Holding and Implications
HOLDING: The detention order dated 3-8-1987 was quashed and the detenu, Arun Aggarwal, was ordered to be released forthwith.
Implications: The judgment reinforces that preventive detention cannot be used as a substitute for opposing or appealing bail in ordinary criminal proceedings. Authorities must possess and disclose specific, cogent material showing a real likelihood of prejudicial conduct after release; otherwise, detention orders will not withstand constitutional scrutiny. No new legal doctrine was created, but existing safeguards against misuse of preventive detention were emphatically reaffirmed.
K. Jagannatha Shetty, J.— The arguments of this case concluded at the close of the court hours on 18-12-1987. We then made the following order:
“We will give the reasons later. But we make the operative order here and now.
The detention order is quashed. The detenu will be set at liberty forthwith.”
2. Here are the reasons: In this writ petition, the validity of the detention of Arun Aggarwal has been challenged. He has been detained by the District Magistrate, Meerut by an order dated 3-8-1987 made under Section 3(2) of the National Security Act, 1980. The government, after the receipt of opinion of the Advisory Board, has approved the detention as required under Section 12(1) of that Act. The impugned order reads as under:
“Office of the District Magistrate, Meerut
Order
As I am satisfied as District Magistrate, Meerut, that issue of order to prevent Shri Arun Aggarwal, son of Shri Rattan Singh, resident of 234, ‘L’ Block, Shastri Nagar, Police Station Medical, Meerut from doing act against the maintenance of public order is necessary.
Therefore, in exercise of power given in sub-section (3) of Section 3 of National Security Act, 1980 (Act 65 of 1980), I hereby give order that the abovesaid Shri Arun Aggarwal, son of Shri Rattan Singh, resident of 234, ‘L’ Block Shastri Nagar, Police Station Medical, Meerut be detained in general category in District Meerut Jail in the custody of Superintendent of the said jail under sub-section (2) of Section 3 of the abovesaid Act.
Passed today dated 3-8-1987 under my signature and seal.”
3. There are as many as five grounds of detention set out in the order. All relate to the offence said to have been committed by Arun Aggarwal on 19-5-1987. Two of the offences are said to have been committed at 9 a.m on that day, the other two offences at 9.30 a.m and the fifth one was alleged to have been committed, between 9.30 a.m to 1 p.m, on the same day. In each of the grounds there is a mention to the following effect:
“Due to your above ill acts there broke out communal riots causing heavy loss to properties and lives of the people and your this ill act has spread fear and terror in the general public of Meerut city. In this manner, you have committed such an act which is against public law and order.”
4. All the cases referred to in the grounds are non-bailable offences. In relation to those offences, Arun Aggarwal was arrested as an accused on 2-8-1987. The detention order was passed and served on 3-8-1987. The order particularly stated:
“At present you are detained in District Jail, Meerut and you are trying to come out on bail and there is enough possibility of your being bailed out.”
5. Before we consider the main ground raised in the petition, we may make one point clear. The order of detention repeatedly states that the detenu committing the alleged five offences set out in the detention order was the cause for breaking out of communal riots in Meerut city. But in the counter-affidavit filed on behalf of the respondents, it has been stated “that the communal riots broke out in Meerut on 14-4-1987 on the occasion of Shab-e-Barat, That was controlled by the administration. However, in the night intervening between May 18/19, 1987, again a communal riot broke out”. But all the offences said to have been committed by the detenu were after 9 a.m on 19-5-1987. It was not in the intervening night between May 18/19. It was, therefore, inaccurate to state that the communal riot broke out due to the incidents attributed to the detenu on 19-5-1987.
6. The primary question however, is whether the detention of Arun Aggarwal could be justified solely on the ground that he was trying to come out on bail and there was enough possibility of his being bailed out and he would then act prejudicially to the interest of the public order. Mr Yogeshwar Prasad, learned Counsel for the State, sought to justify the detention order relying upon the decision of this Court in Alijan Mian v. District Magistrate, Dhanbad (1983) 4 SCC 301, (1983) 3 SCR 939. The counsel also said that the subsequent two decisions of this Court to which we will make reference later, are not in tune within the ratio of the decision in Alijan Mian case (1983) 4 SCC 301, (1983) 3 SCR 939.
7. We will first consider what the case was about in Alijan Mian case (1983) 4 SCC 301, (1983) 3 SCR 939. The detention order considered in that case contained statement that the District Magistrate was satisfied that the detenu was likely to be released on bail and if he was allowed to remain at large, he would be indulging in activities prejudicial to the maintenance of public order. This Court refused to interfere with that detention order on the ground that the detaining authority was justified in forming that opinion. The conclusion of this Court was evidently on the basis of material placed before the detaining authority in that case.
8. The principles applicable in these types of preventive detention cases have been explained in several decisions of this Court. All those cases have been considered in a recent decision in Poonam Lata v. M.L Wadhawan (1987) 4 SCC 48. The principles may be summarised as follows:
Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary.
9. We will now refer to the two decisions which according to Mr Yogeshwar Prasad are out in tune with the ratio of the decision in Alijan Mian case (1983) 4 SCC 301, (1983) 3 SCR 939. In Ramesh Yadav v. District Magistrate, Etah (1985) 4 SCC 232, this Court observed:
“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 higher 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.”
What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the National Security Act.
10. Every citizen in this country has the right to have recourse to law. He has the right to move the court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be interdicted from moving the court for bail by clamping an order of detention. The possibility of the court granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate, Dhanbad (1986) 4 SCC 416 where it was observed: [SCC (Cri) p. 495, para 7]
“A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent. Eternal vigilance on the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.”
11. There is, to our mind, nothing in these two decisions which runs counter to the decision in Alijan Mian case (1983) 4 SCC 301, (1983) 3 SCR 939.
12. In the instant case, there was no material made apparent on record that the detenu, if released on bail, is likely to commit activities prejudicial to the maintenance of public order. The detention order appears to have been made merely on the ground that the detenu is trying to come out on bail and there is enough possibility of his being bailed out. We do not think that the order of detention could be justified only on that basis.
13. These were the reasons upon which we quashed the order of detention.
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