Ghosi, Wahid, Ayaz Ahmadand Riaz Ahmad Vs. State of U.P. & Ors  INSC
167 (29 June 1987)
R.S. (CJ) PATHAK, R.S. (CJ) KHALID, V. (J) CITATION: 1987 AIR 1877 1987 SCR (3)
471 1987 SCC (3) 502 JT 1987 (3) 22 1987 SCALE (2)1
INFO : AFR 1990 SC 231 (8)
Security Act, 1980--Sub-s.(3) of s. 3--Detention Order--Subjective satisfaction
of District Magistrate must be based upon some pertinent material.
upon the opening of the Ram Janam Bhumi Temple at Ayodhya, there was
considerable agitation among the Muslim Community. The Petitioners and
appellants were arrested for inciting the members of the community to indulge
in violence and charged for offences under sections 147/148/149/307/332 of the
Indian Penal Code. While their bail applications were pending; the District
Magistrate, purporting to act under sub. s. (3) of s. 3 of the National
Security Act 1980, served detention orders on them.
Petitions challenging the detention orders filed by the appellants were
rejected by the High Court.
Petitioners and appellants contended that the detention orders were bad for the
reason that there was no material before the District Magistrate on the basis
of which he could form the opinion that they would act in future in a manner
prejudicial to maintenance of public order.
the petitions and appeals, this Court,
The power to detain under the Act can be exercised only with a view to
preventing a person from acting in a manner which may prejudice any of the
considerations set forth in Section 3 thereof. Preventive detention is not
intended as a punitive measure, as a curtailment of liberty by way of
punishment for an offence already committed. No doubt the satisfaction of the
District Magistrate making the detention order is subjective in nature, but,
even subjective satisfaction, must be based upon some pertinent material.
[473F-G; 474A-B] In this case there is no material to show that the detenus
would act 472 in the future to the prejudice of the maintenance of public
order. Even if it is accepted that the detenus did address the assembly of
persons and incited them to lawlessness, there is no material to warrant the
inference that they would repeat the misconduct or do anything else which would
be prejudicial to the maintenance of public order. [473G-H]
Original/Appellate Jurisdiction: Writ Petition Nos. 30(1 and 30 1 of 1986.
Under Article 32 of the Constitution of India). WITH Criminal Appeal Nos. 374-A
and 411 of 1986.
the Judgment and Order dated 31-3-1986 of the Allahabad High Court in W.P. Nos.
1448 and 1405 of 1986.
Gupta for the Petitioners in W.P. Nos. 300 and 301 of 1986.
Syed and Shakil Ahmed for the Appellants in Crl. A. Nos. 374A and 411 of 1986.
Singh, Ms. Rachna Joshi and Dalveer Bhandari for the Respondents.
Judgment of the Court was delivered by PATHAK, C.J.I. The petitioners Fazal
Ghosi and Wahid in the two writ petitions before us and the appellants Ayaz
Ahmad and Riaz Ahmad in the two Criminal Appeals are aggrieved by the orders of
detention made respectively in respect of them under sub-s.(2) of s. 3 of the
National Security Act, 1980. The petitioners Fazal Ghosi and Wahid filed writ
petitions in the High Court of Allahabad against the detention orders
concerning them and those writ petitions were dismissed. They have now filed
the present petitions under Article 32 of the Constitution. The appellants Ayaz
Ahmad and Riaz Ahmad filed writ petitions in the High Court of Allahabad against
the detention orders concerning them, and those writ petitions having been
dismissed they have appealed here by special leave. All the four cases have
been heard together. It is agreed between the parties that although separate
orders of detention were made under sub-s.
of s. 3 of the National Security Act against the various petitioners and
appellants the grounds raised in this court against their detention orders are
appears that consequent upon the opening of the Ram Janam Bhumi temple at
Ayodhya, Faizabad, there was consider- able agitation 473 among the Muslim
community. According to the State Govern- ment, several members of the
community were returning from the mosque after their afternoon prayers, and at
Bholanath Ka Kuan, Abdul Aziz Road, Lucknow they were addressed by Fazal Ghosi
and his son Wahid in language inciting them to beat the police and the Police
Armed Constabulary. At another place, Sarkata Nala, a large number of the
Muslim community are said to have been similarly addressed by the appellants,
Ayaz Ahmd and Riaz Ahmad. It is alleged that in consequence the crowd commenced
pelting stones and discharged fire arms on the Government officials and the
police personnel assembled there as a result of which they received injuries.
The petitioners and the appellants were arrested along with other persons, and
a First Information Report was lodged in respect of each of them for offences
under sections 147/148/149/307 and 332 of the Indian Penal Code. The
petitioners and the appellants applied for grant of bail, and while the bail
applications were pending the District Magistrate, Lucknow, purporting to act
under sub-s. (3) of s. 3 of the National Security Act, served a detention order
on February 20, 1986 on each of the four detenus. This was followed on February
21, 1986 by service of the grounds of detention.
counsel for the detenus challenges the detention orders on several grounds. In
our opinion, it is not necessary to consider all the points raised because it
appears to us that the cases can be disposed of on a short ground. The
contention on behalf of the detenus is that there was no material before the
District Magistrate on the basis of which he could form the opinion that the
detenus would act in future in a manner prejudicial to the maintenance of
public order. It is pointed out that the National Security Act provides for
preventive detention. and preventive detention is intended where it is
apprehended that the person may act prejudicially to one or more of the
considerations specified in the statute. There is no doubt that preventive
detention is not intended as a punitive measure, as a curtailment of liberty by
way of punishment for an offence already committed. Section 3 of the Act
clearly indicates that the power to detain there under can be exercised only
with a view to preventing a person from acting in a manner which may prejudice
any of the considerations set forth in the section. In the present case, we are
unable to discover any material to show that the detenus would act in the
future to the prejudice of the maintenance of public order.
if it is accepted that they did address the assembly of persons and incited
them to lawlessness there is no material to warrant the inference that they
would repeat the misconduct or do anything else which would be prejudicial to
the maintenance of public order. The District Magistrate, it is true, has
stated that the detention 474 of the detenus was effected because he was
satisfied that it was necessary to prevent them from acting prejudicially to
the maintenance of public order, but there is no reference to any material in
support of that satisfaction. We are aware that the satisfaction of the
District Magistrate is subjective in nature, but even subjective satisfaction
must be based upon some pertinent material. We are concerned here not with the
sufficiency of that material but with the existence of any relevant material at
the circumstances. the detention orders in respect of the four detenus must be
writ petitions and the appeals are allowed, the order of detention in respect
of each detenu is quashed, and the detenus are entitled to be set at liberty
unless their detention is required in connection with other cases.
Petitions and appeals allowed.