LexSMT. SHASHI AGARWAL versus STATE OF U.P. & ORS.
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SMT. SHASHI AGARWAL
v.
STATE OF U.P. & ORS.
JANUARY 12, 1988
[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
A
B
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
writ petition before this Court.
On the question: whether the detention could be justified solely
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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.
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This Court quashed the detention order on December 18, 1987.
Giving the reasons for its decision,
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
593
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H
A
B
c
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594
SUPREME COURT REPORTS
[1988] 2 S.C.R.
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-
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
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
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.
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
735of1987.
(Under Article 32 of the Constitution of India).
U.R. Lalit, P. Lal and Mrs. Rani Chhabra for the Petitioner.
Y ogeshwar Prasad and Dalveer Bhandari for the Respondent.
The following Order of the Court was delivered
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.
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SMT. SHASHI v. STAIB OF U.P. ISHETTY, J.J
595
The detention order is quashed. The detenu will be
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set at liberty forthwith."
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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
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Magistrate, Meerut by an order dated August 3, 1987 made
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under sec. 3(2) of the National Security Act, 1980. The Govern-
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ment, after the receipt of opinion of the Advisory Board, has
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approved the detention as required under sec. 12(1) of that Act.
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The impugned order reads as under:
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