Holding

A detention order under the National Security Act cannot be justified merely on the possibility of bail; it requires credible material showing that release would be prejudicial to public order, and absent such material the order is invalid.

Summary

Arun Aggarwal, already in jail for five non‑bailable offences, was detained under Section 3 of the National Security Act, 1980 on August 3, 1987. The detention order, approved under Section 12(1) after an Advisory Board opinion, was based solely on the fact that he was seeking bail and there was a possibility he might be released, which the State claimed could prejudice public order. The petitioner challenged the order under Article 32, arguing that no specific material showed a likelihood of such prejudice. The Supreme Court held that Section 3 does not forbid detaining a person already in custody, but the authority must have credible information or cogent reasons that release on bail would endanger public order; a mere apprehension or possibility is insufficient. As no such material was on record, the Court quashed the detention order and ordered the detenu’s release.

Issues considered

Whether a detention order under the National Security Act can be justified solely on the ground that the detenu is seeking bail and may act prejudicially to public order.
Whether Section 3 of the National Security Act permits detention of a person already in custody.
Whether the State complied with the requirement of material evidence showing likely prejudice to public order.

Legislation cited

National Security Act, 1980s. 12(1), s. 3

Subjects

National Security Actpreventive detentionbailpublic orderSection 3Section 12Article 32detention while in custody

Judgment

SMT. SHASHI AGARWAL A
v.
STATE OF U.P. & ORS.

JANUARY 12, 1988
B
[B.C. RAY AND K. JAGANNATHA SHETTY, JJ.]

National Security Act, 1980: Sections 3 and 12-Detention-
Detenu involved in Criminal Case-In jail-Whether order of detention
, can be made in respect of such detenu-Mere apprehension that, if
•• enlarged on bail, likelihood of acting prejudicially to interest of public
order-Whether sufficient to justity the detention order. C

A detention order was passed and served on the detenu on August
3, 1987, while he was in jail for five non-bailable offences alleged to
have been committed by him on May 19,1987. The detention order
alleged that as the detenu who was in jail was trying to come out on bail, D
and there was enough possibility of his being bailed out, it was neces·
sary to detain him in order to prevent him from doing acts against
maintenance of public order.

The detention was approved by the Government under s. 12 (I) of
the National Secnrity Act, 1980, after the receipt of the Advisory E
Board's opinion. The validity of the detention was challenged in the
y writ petition before this Court.

On the question: whether the detention could be justified solely
~ on the ground that the detenu was trying to come out on bail and there
was enough possibility of his being bailed out and he would then act F
prejudicially to the interest of the public order.
~
This Court quashed the detention order on December 18, 1987.
>-
Giving the reasons for its decision,
G
HELD: 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. [597C-D I H

593
594 SUPREME COURT REPORTS [1988] 2 S.C.R.

A Every citizen in this country has the right to have recourse to law.
He has the right to move the court for hail when he is arrested under the
ordinary law of the land. If the State thiiiks that he does not deserve
hail, the State could oppose the grant of hail. He cannot, however, he
interdicted from moving the court for bail by clamping an order of
detention. The possibility of the court granting bail may not be suffi-
B
cient. 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. [598B-C I
'
In the instam case, there was no material made apparent on
c record that the detenu, if released on bail, was. likely to commit ac-
tivities prejudicial to the maintenance of public order. The detentiop
order cannot be justified merely 011 the groUJld that the detenu was
trying to come out on bail and there was enough possibility of his· being
bailed out. [598F-G l
•
D
Poonam Lata v. M.L. Wadhawan, [1987] 4 SCC 48 relied on.

Alijan Mian and another v. District Magistrate, Dhanbad, [1983]
3 SCR 930; Ramesh Yadav v. District Magistrate, Etah and Ors., [1985]
4 SCC at p. 234 and Binod Singh v. District Magistrate, Dhanbad,
[1986] 4 sec 416 at 421, explained.
E
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
735of1987.

(Under Article 32 of the Constitution of India).
F U.R. Lalit, P. Lal and Mrs. Rani Chhabra for the Petitioner.

Yogeshwar Prasad and Dalveer Bhandari for the Respondent.

The following Order of the Court was delivered
G JAGANNATHA SHETTY, J. The arguments of this case conc-
luded at the close of the court hours on December 18, 1987. We then
made the following order:

"We will give the reasons later. Rut we make the
operative order here and now.
H
SMT. SHASHI v. STAIB OF U.P. ISHETTY, J.J 595

The detention order is quashed. The detenu will be A
set at liberty forthwith."
~
•
Here are the reasons:

In this writ petition, the validity of the detention of Arun Aggar-
B
wal has been challenged. He has been detained by the District
\- Magistrate, Meerut by an order dated August 3, 1987 made
under sec. 3(2) of the National Security Act, 1980. The Govern-
/

-. •

'
ment, after the receipt of opinion of the Advisory Board, has
approved the detention as required under sec. 12(1) of that Act.
The impugned order reads as under:
c
"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 D
Rattan Singh, resident of 234, 'L' Block, Shastri Nagar,
Police Station Medical, Meerut from doing act against the
maintenance of public order is necessary.

y Therefore, in exercise of power given in sub-section 3
of sec. 3 of National Security Act, 1980 (Act No. 65/1980), E
I hereby give order that the above said Shri Arun Aggar-
~
wal, 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
the Supdt. of the said jail under sub-section 2 of Sec. 3 of
f- the above said Act.
F
~·
Passed today dated 3.8.1987 under my signature and
seal."

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
G
Aggarwal on May 19, 1987. Two of the offences are said to have been
-y
committed at 9.00 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 1.00 P.M. on the same day. In each of the grounds there
is a mention to the following effect: H
596 SUPREME COURT REPORTS 11988] 2 S.C.R.
.\-
"Due to your above ill acts there broke out corn-
A
munal 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.''
B
All the cases referred to in the grounds are non-bailable off- •--j
ences. In relation of those offences, Arun Aggarwal was arrested as an
accused on August 2, 1987. The detention order was passed and served '
.
>

on August 3, 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."
c
y
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 communal riot in
D Meerut City. But in the counter-affidavit filed on behalf of the respon-
dents, it has been stated "that the communal riots broke out in Meerut
on April 14, 1987 on the occasion of Shab-e-Earat. That was controlled
by the Administration. However, in the night intervening between
13/19 May, 1987, again a communal riot broke out." But all the off-
.ences said to have been committed by the detenu were after 9.00 A.M.
E on May 19, 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 May !9, •
~
1987.
.
The primary question however, is whether the detention of Arun
F Aggarwal could be justified solely on the ground that he was trying to -"1
come out on bail and.there was enough possibility of his being bailed 1
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 and anotherv. District Magistrate, Dhanbad, [1983] 3 SCR
G 930. The counsel also said that the subsequent two decisions of this •
court to which we will make reference later, are not in tune with the
ratio of the decision in Alt/an Mian's case. '(
We will first consider what the case about in Alijan Mian case.
The detention order considered inithat case contained statement that
H the District Magistrate was satisfied that the detenu was likely to be
SMT. SHASHI v. STATE OF U.P. [SHE1TY, J.[ 597

released on bail and if he was allowed to remain at large, he would be A
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.
B
r, 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:
c
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 D
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.

'( We will now refer to the two decisions which according to Mr.
Yogeshwar Prasad are not in tune with the ratio of the decision in E

- ,.. Alijan Milan's case (supra). In Ramesh Yadav v. District Magistrate
Etah and Ors., [1985] 4 SCC 232 at p. 234, 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 passeq as the detaining author- F
} ity 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 raisec:. Merely on the ground that an G
accused in detention as an under-trial 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 apprehensio!l of the
detaining authority that the accused if enlarged on bail would again H
598 SUPREME COURT REPORTS (1988] 2 S.C.R.

A carry on his criminal activities is by itself not sufficient to detain a r
person under the National Security Act.
+ •
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
B
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
i )
criminal activities would be enough. There must also be credible infor-
mation or cogent reasons apparent on the record that the detenu, if
-...;
-
c 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 I 4 sec 416 at 421, where it was observed: r
"A bald statement is merely an ipse dixit of the of-
ficer. If there were cogent materials for thinking that the
D detenu might be released then these should have been
made apparent. Eternal vigilance on the part of the author- "
ity 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 free-
doms of our citizens."
E y
There is, to our mind, nothing in these two decisions which runs
counter to the decision in Alijan Mian's case (supra). ~

'"'
In the instant case, there was no material made apparent on •
F
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 -1
trying to come but 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.
G These were the reasons upon which we quashed the order of •
detention.
(
N.P.V.