R.R.K. Trivedi, J.
1. This habeas corpus petition has been filed for quashing the order dated 1-3-1998, Annexure 1 to the writ petition, passed by respondent No. 2 directing detention of the petitioner and the order dated 20-3-1998, Annexure 8 to the writ petition, passed by respondent No. 1, under Section 3(2) of National Security Act (hereinafter referred to as the Act) rejecting the representation of the petitioner and for further direction to the respondents to set the petitioner at liberty forthwith.
2. The reasons on which basis respondent No. 2 formed his subjective satisfaction for passing the order dated 1-3-1998 are shown in the grounds served on the petitioner along with the order of detention. It is stated therein that on 23-2-1998, petitioner while driving his Maruti car No. DDI 0024 carelessly and with fact speed on Mathura-Budaun Road within the limits of police station Kotwali, Budaun, hit the scooter of Balbir Singh, Sports Officer, on account of which he suffered injuries. After causing the aforesaid accident, the petitioner turned his vehicle towards Collectorate and tried to escape. Constable Vijai Singh who was on duty at Lal Pul triangular crossing, tried to stop the vehicle on which the petitioner and his companion Salim exchanged fists with the above said constable and abused him and thereafter ran away with the vehicle. Same day, at about 5.00 p.m., the petitioner collected a crowd of 60-70 persons at Budaun-Mathura road in Mohalla Nahar Khan Sarai and started pelting stones on the vehicles passing through the road. A jam was created. The petitioner and other persons so collected there also pelted stones on roadways bus No. UP 25-6754 on account of which the bus was damaged. The petitioner entered inside the bus along with his companions and had Marpit with the passengers of the bus. Jeep No. DLA 9613 on which Hoti Lal was carrying his passengers to the district hospital was also slopped by the petitioner and his companions and was set on fire. On account of the aforesaid activities of the petitioner and his companions, the shop keepers and residents of the Mohalla ran helter-skelter, the even tempo of life of the community and the public order was badly disturbed. Constable Vijai Singh lodged a First Information Report in police station Kotwali, Badaun, which was registered as case crime No. 145, under Sections 147/148/435/ 427/279/337/332/353/504, I.P.C. Shri Hotilal also lodged F.I.R. which was registered as case Crime No. 146, under Sections 147/148/435/336/ 427, I.P.C. The aforesaid cases have been registered against the petitioner and investigation was in progress.
3. On knowing about the aforesaid occurrence dated 23-2-1998 of Mohalla Nahar Khan Sarai, Station House Officer, Kotwali, Badaun, reached at the spot with police force on which the petitioner and his companion Salim exhorted that the dogs of the police have come, surround them also. The petitioner and his companion Salim fired at the Station House Officer with their country made pistols with the intention to kill him and the crowd assembled there started pelting stones on the police party on account of which Inspector-in-charge Kotwali Shri Prabhat Kumar and Senior Sub-Inspector Shri P. D. Sharma received injuries. In order to disperse the crowd, the police fired tear gas shells and arrested the petitioner and his companion Salim at 5.30 p.m. On search a country made pistol and live cartridges were recovered from the petitioner. F.I.Rs. were lodged by the Inspector-in-charge Kotwali which were registered as case crime No. 147, under Sections 147/148/149/307/336/436/427/332/353, I.P.C., 7 Criminal Law Amendment Act and 2(3) of Prevention of Public Property Damaging Act and as case crime No. 149, under Section 25 of the Arms Act.
4. It has been further stated in the grounds that the aforesaid activities of the petitioner during the parliamentary election caused a sense of fear and terror among the residents of town Badaun and owners of vehicles and travellers. It also aroused communal passion and public order was disturbed. On 23-2-1998 and 24-2-1998, communal tension prevailed in the entire town and to control it a flag march was organised under the command of Additional Police Superintendent, Badaun on both dates. A meeting of the peace committee was organised. The aforesaid activities of the petitioner found coverage in daily newspapers Amar Ujala and Dainik Jagran of 24th and 25th February, 1998. The activities of the petitioner were prejudicial to the maintenance of the public order.
5. It has been further stated that the petitioner is in judicial custody and confined in district jail Badaun in connection with case crime Nos. 145, 146/147 and 149 of 1998 but his pairokars have given application for bail. The officer-in-charge Kotwali in his report has mentioned that there is every possibility of the petitioner being granted bail by the Court. It is also mentioned in the report that the counting of votes of the Parliamentary Election is going to start from 2-3-1998 and there is possibility that if the petitioner is released on bail, he may again indulge in similar activities on account of which communal feelings may further flare up and also affect the counting of votes and public order may be disturbed.
6. On the aforesaid facts, respondent No. 2 felt satisfied that in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it is necessary that an order directing the petitioner's detention may be passed. The petitioner was also informed that he has right to make representation against his detention before the State Government, Advisory Board and the Central Government. Such representations may be sent through the Superintendent of Jail in which the petitioner is detained. The petitioner was also informed that if he desired a personal hearing before the Advisory Board, this fact may also be communicated within three weeks.
7. The aforesaid detention of the petitioner by order dated 1-3-1998 was approved by the Stale Government on 5-3-1998, under Section 3(4) of the Act. The petitioner submitted his representation dated 8-3-1998 which was received by the State Government on 11-3-1998. Comments of the District Magistrate, Badaun, on the representation of the petitioner were received by .the State Government on 16-3-1998. Same day the State Government forwarded the representation of the petitioner to the Central Government with its comments. After consideration the representation of the petitioner was rejected by the State Government on 19-3-1998 which was communicated to the petitioner on 20-3-1998. The petitioner appeared personally before the Advisory Board on 7-4-1998. The Advisory Board submitted its report on 15-4-1998. After considering the report of the Advisory Board and other materials, the State Government confirmed the order of detention for a period of 12 months by order dated 23-4-1998.
8. The representation of the petitioner dated 8-3-1998 was received by the Central Government on 9-3-1998 on which the comments of the State Government and the report of the Advisory Board were called on 12-3-1998. The requisite information and the report of the Advisory Board was sent to the Central Government on 17-4-1998 which was received on 20-4-1998. After consideration, the representation was rejected on 13-5-1998.
9. In this petition counter-affidavit has been filed by Shri Rafiq Ahmad Khan, Under Secretary in the Home and Confidential Department, U. P. Civil Secretariat, on behalf of respondent No. 1. Shri Sanjay Bhatia, the then District Magistrate, Badaun, respondent No. 2, has filed his own counter-affidavit, Bina Prasad, Under Secretary, Ministry of Home Affairs, Government of India, has filed counter-affidavit on behalf of respondent No. 3 and Shri Anil Kumar, Dy. Jailor, District Jail, Badaun, has filed counter-affidavit on behalf of respondent No. 5.
10. We have heard Shri D. S. Mishra, learned counsel for the petitioner, the Additional Government Advocate for respondents Nos. 1, 2, 4 and 5 and Shri Mohd. Isa Khan, Additional Senior Standing Counsel, for respondent No. 3.
11. Learned counsel for the petitioner has challenged the order passed by respondent No. 2 and confirmed by respondent No. 1 on the following grounds :
1. The first submission of the learned counsel for the petitioner is that in the grounds of detention word 'Sambharan' has been used in grounds Nos. 1 and 2 and also in the paragraph in which satisfaction has been recorded by the District Magistrate. The English translation of Hindi word 'Sambharan' is 'supply'. From a perusal of the grounds of detention it is clear that there was no question of prejudicial effect to the maintenance of supplies and services essential to the community due to the alleged activity of the petitioner. The use of the word 'supply' demonstrates non-application of mind and casualness on the part of respondent No. 2 and the orders of detention are vitiated and are liable to be quashed.
2. Second submission of the learned counsel for the petitioner is that on 1-3-1998, the petitioner was confined in jail in connection with case Crime Nos. 145, 146, 147 and 149 of 1998 and there was no basis for apprehension that maintenance of the public order will be affected by the petitioner's activities. In this connection it has also been submitted that the applications for bail were moved only in cases registered as case Crime Nos. 145 and -147 of 1998. No bail application was filed so far as cases registered as case Crime Nos. 146 and 149 of 1998 were concerned. This fact also demonstrates that respondent No. 2 passed the order without ascertaining the true facts and the prevailing circumstances. The impugned orders are liable to be quashed.
3. The last submission of the learned counsel for the petitioner is that representation of the petitioner dated 8-3-1998 addressed to the Central Government was received on 9-3-1998 which was rejected on 13-5-1998, i.e. after more than 60 days. Thus there is unexplained inordinate delay in deciding the representation which has rendered the continued detention of the petitioner illegal and he is liable to be released. Learned counsel for the petitioner has placed reliance on judgments of this Court and Hon'ble Supreme Court in support of his submissions which shall be discussed at the appropriate place.
12. Learned A.G.A., on the other hand, has submitted that in the grounds a wrong word 'Sambharan' has been used in place of 'Anurakshan' which is merely a slip and does not go to the root of the matter. The mistake stands explained from the record. The narration of the incident in the grounds clearly shows that the subjective satisfaction arrived at by respondent No. 2 was with regard to the maintenance of the public order and the order should be seen in that context.
13. It has also been submitted that it is true that bail applications were moved only in two cases but out of the remaining two cases offences shown in case Crime No. 146 were bailable and so far as case crime No. 149 is concerned, it was registered under Section 25 of the Arms Act in which in normal course, bail is granted by the Courts of Magistrate. Thus, it cannot be said that the apprehension of the respondent No. 2, that the petitioner may be released on bail and on such release he may again indulge in similar activities which may disturb the public order during the sensitive period of election, was not based on the prevailing facts and circumstances. The order does not suffer from any illegality.
14. Lastly, it has been submitted that the report of the Advisory Board was received by the State Government on 15-4-1998. It was sent to the Central Government on 17-4-1998 and was received there on 20-4-1998. Thereafter the representation filed by the petitioner was considered and rejected on 13-5-1998. It has been submitted that the delay caused has been sufficiently explained in paras 7 and 8 of the counter-affidavit filed by Bina Prasad. It has also been submitted that from perusal of the grounds it is clear that it is not a fit case for interference by this Court. Learned A.G.A. has also placed reliance on certain judgments of Hon'ble Supreme Court in support of his submissions which shall be considered at the appropriate places.
15. We have thoroughly considered the submissions of the learned counsel for the parties. The first submission of the learned counsel for the petitioner is that in the grounds of detention, the word 'Sambharan' has been used which in English means 'supply' and it demonstrates non-application of mind and casualness on the part of respondent No. 2 while passing the order dated 1 -3-1998 under which the petitioner was detained under Section 3(2) of the Act. For this submission reliance has been placed on the case of Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 : 1966 Cri LJ 608, Jagannath Mishra v. State of Orissa AIR 1966 SC 1140 : 1966 Cri LJ 817; Kishori Mohan Bera v. State of West Bengal AIR 1972 SC 1749; Abhai Sridhar Ambulkar v. S.B. Bhave, Commissioner of Police (1991) 1 SCC 500 : AIR 1991 SC 397 and Pawan Kumar Pandey v. Adhikshak, Janpad Karagar, Faizabad 1993 UP Criminal Rulings 553 (DB).
16. There is no doubt that the word 'Sambharan' used in the grounds means 'supply'. However, the substantial question is whether by use of this word, the subjective satisfaction of respondent No. 2 on the basis of the incident narrated can be said to have been vitiated. In our considered opinion, no benefit can be granted to the petitioner on the basis of a bona fide mistake or slip on the part of respondent No. 2. In ground No. 1 after narration of the whole incident of 23-2-1998, the last sentence has been written in the following manner :
^^bl izdkj vkius ,slk nqdR; fd;ktks yksd O;oLFkk ds lEHkj.k ds izfrdwy gS A**
The English translation of the aforesaid sentence shall be in this way :
You have done such an act which is prejudicial to the supply of the public order.
It is thus clear that the intention on the part of respondent No. 2 was to say that the activity alleged against the petitioner was against the maintenance of the public order. However, he could not use the appropriate Hindi word. It cannot be said that respondent No. 2 was having any kind of doubt on account of (he vagueness in the grounds which contained full narration of the incident. He has also used the words public order along with word 'supply' and not any commodity or essential services. It is thus clear that the satisfaction arrived at was with regard to the maintenance of the public order. The cases relied on by the petitioner are clearly distinguishable and do not help him in the present case in any manner. In case of Ram Manohar Lohia (supra), the order of detention was passed under Rule 30 (1) (b) of the Defence of India Rules, 1962. Rule 30 (1) provided that the Central Government or the State Government being satisfied with respect to any particular person with a view to preventing him from acting in any manner prejudicial to the public safety, the maintenance of public order, may make an order directing that he be detained. The detaining authority, however, in the order of detention said that with a view to preventing him from acting in any manner prejudicial to the public safety or maintenance of the law and order, it is necessary to make an order that he be detained. Hon'ble Supreme Court in the aforesaid facts and circumstances held that the public order and law and order are not the same thing and thus the satisfaction arrived at for passing the order of preventive detention vitiated as it could not be justified to prevent the acts prejudicial to law and order. The case is thus clearly distinguishable on facts. Similarly, in the case of Jagannath Mishra (supra), the detaining authority mentioned six out of eight possible grounds on which a person could be detained as provided in Rule 30(1) of the Defence of India Rules, 1962. Hon'ble Supreme Court disapproved such a satisfaction based on non-existent grounds. The case is clearly distinguishable. In case of Kishori Lal (supra) the words used in the order of detention were that it was necessary to prevent the detenu from acting in a manner prejudicial to the maintenance of public order or se curity of the State. Hon'ble Supreme Court held that either the Magistrate was not certain whether the activities of the detenu endangered public order or the security of the State or that he merely reproduced the language of Section 3(1)(a)(ii) mechanically. The order of detention was held illegal. This case is also clearly distinguishable. In the case of Abhai Sridhar Ambulkar'(supra) the controversy raised was entirely different. The Supreme Court was examining the validity of the delegation of power by the State Government to pass orders of detention on District Magistrate or Commissioner of Police. This case is not relevant for the controversy in hand. In the case of Pawan Kumar Pandey (supra) the detaining authority failed to record his satisfaction before passing the order of detention that it was necessary to prevent the petitioner of that case from acting in any manner prejudicial to the public order. Thus the crucial .satisfaction regarding prevention of the detenu was missing in the order. This case is also distinguishable on facts. In the present case the detaining authority has clearly stated his satisfaction for preventing the petitioner from acting in any manner prejudicial to the maintenance of the public order which are being reproduced below :
^^mi;qZDr vk/kkjksa ls esjk ;glek/kku gks x;k gS fd vki ds }kjk ,slh fdlh Hkh jhfr ls dk;Zokgh fd;s tkus dhlEHkkouk gS tks yksd O;oLFkk ds izfrdwy gS vki dks ,slh jhfr ls dk;Zokgh djus lstks yksd O;oLFkk ds lEHkj.k ds izfrdwy gS] jksdus ds mn~ns'; ls ;g vko';d gS fdvki dks fu:) fd;k tk;s A**
17. From a perusal of the aforesaid paragraph of the grounds it is clear that the satisfaction has been appropriately mentioned which cannot be said to be vague or uncertain. For the mere use of an inappropriate word, for want of knowledge or by way of slip, it cannot be said that the order of detention vitiated. It may also be mentioned here that no such challenge was raised in the writ-petition or in. the representation submitted by the petitioner before the appropriate Government and the Central Government and the respondents could not have opportunity to explain the mistake in their counter affidavits. For this reason also the plea raised on behalf of the petitioner cannot be accepted.
18. The second submission of the learned counsel for the petitioner was that on the date the impugned order of detention was passed, the petitioner was confined in jail in connection with case crimes No. 145, 146, 147 and 149 of 1998. The bail application was moved only in two cases. No bail application was filed so far as case crime Nos. 146 and 149 of 1998 were concerned. The submission is that the detaining authority passed the order without ascertaining the true facts and the prevailing circumstances.
19. The learned Additional Government Advocate, on the other hand, submitted that out of the two remaining cases, in one case the offence alleged was bailable and the other case was under Section 25 of the Arms Act in which normally bail is granted. Thus the satisfaction of respondent no. 2 cannot be said to be illegal. In case of Birendra Kumar Rai v. Union of India AIR 1993 SC 962 : 1992 All LJ 1249 while considering similar challenge, Hon'ble Supreme Court held as under at page 1252 of All LJ :
It was contended on behalf of the petitioner that there was no possibility of petitioner being released on bail and as such there was no ground or justification for the detaining authority to hold that there was a compelling necessity for detention of the petitioner. We find no force in this contention. The detaining authority was aware that a bail application had already been filed by the petitioner and the same was to come up for hearing on 7-12-1990 and in these circumstances the detaining authority was justified in recording the satisfaction of compelling necessity of issuing the detention order as it could not have been predicted with certainty that the petitioner would not be released on bail.
In case of Kamarunnisan v. Union of India 1991 SCC (Cri) p. 88 : AIR 1991 SC 1640 Hon'ble Supreme Court after examining various cases held in para 13 as under at pages 1647-1648 of AIR:
From the catena of decisions referred to above it seems clear to us that even in case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of the reliable material placed before him (a) that there is a real possibility of his being released on bail and (b) that on being so released, he would in all probability indulge in prejudicial activity and (3) if it is felt essential to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf such an order cannot be struck down on the ground that the proper course for the authority was to approach the bail and if bail is granted notwithstanding such opposition, to question before higher Court.
20. In our opinion, in the present case the detaining authority has recorded his satisfaction in detail on all the aforesaid essential elements necessary for passing an order while the detenu was in jail. The relevant paragraph is being reproduced below :
^^vki bl le; vijk/k la[;k&145 146 147 149@98 ds vUrxZr ftyk dkjkxkj cnk;wW esacan gS vkSj vkius bu lHkh vfHk;ksxkas esa tekur izkFkZuki= ns fn;s gSaa AizHkkjh fujh{kd dksrokyh us viuh fjiksVZ esa ;g Hkh mfYyf[kr fd;k gS fd vkidhtekur gksus dh lEHkkouk gS A mDr fjiksVZ esa ;g Hkh mfYyf[kr gS fd cnk;Ww esafnukad 2-3-98 ls lalnh; pquko dh er x.kuk dh izf;k izkjaHk gksxh vkSj ;glEHkkouk gS fd vkids }kjk tekur ftlls lkEiznkf;d Hkkouk mRrsftr gksxh vkSj erx.kuk dk dk;Ze izHkkfor gksxk vkSj yksd O;oLFkk Hkax gksxh A**
21. From the aforesaid paragraph it is clear that the detaining authority had taken into consideration the prevailing circumstances and thought it necessary to detain the petitioner for maintenance of public order and for smooth counting of votes of Parliamentary election. The mere fact that the bail application in two of the cases was not moved could not be of much consequence as the offence in one of the cases was bailable in which bail could be claimed as a matter of right and in the other case, the offence mentioned was under Section 25 Arms Act in which bail is normally granted. The satisfaction of the detaining authority that the petitioner may be released on bail thus could not be held to be unjustified. The submission of the learned counsel for the petitioner cannot be accepted.
22. The last submission of the learned counsel for the petitioner was that the representation of the petitioner dated 8-3-1998 addressed to the Central Government was decided on 13-5-1990, i.e. after more than 60 days and the inordinate delay has been caused which rendered the continued detention illegal. In the counter affidavit filed by Bina Prasad, it has been stated that the representation of the petitioner dated 8-3-1998 was received by the Central Government in the Ministry of Home Affairs on 9-3-1998. This representation was processed for consideration and it was found that certain vital information, i.e. parawise comments on the representation and the opinion of the Advisory Board was required for further consideration which was called for from the State Government by a wireless message on 12-3-1998. The required information was received by the Central Government in the Ministry of Home Affairs on 20-4-1998 vide State Government's wireless message dated 17-4-1998. It has already been noticed above that the report of the Advisory Board was received by the State Government on 15-4-1998. Thus up to 20-4-1998 the delay stands explained. In para 7 it is then stated that the representation of the detenu was put up before the Deputy Secretary on 23-4-1998 who carefully considered the same and with his comments put up the same before the Joint Secretary on 24-4-1998. The Joint Secretary considered the case and put up the same before the Home Minister, Government of India, on 27-4-1998. The Home Minister himself considered the case of the detenu and rejected his representation on 13-5-1998. In para 8 the delay after 23-4-1998 has been explained in the following manner :
That the representation from the detenu along with all the required information became effectively available to the Central Government in the Ministry of Home Affairs for consideration only oh 20-4-98. That a final decision to reject the said representation was taken by the Central Government in the Ministry of Home Affairs within 16 days (excluding 25 and 26-4-98 and 2, 3, 7, 9, 10 and 11-5-98 were holidays) of its effectively becoming available for consideration.
23. From the aforesaid, it is clear that though the Home Minister decided the representation on 13-5-1998, but there were holidays for six days between 27-4-1998 and 13-5-1998. The delay involved was only 10 days. In our opinion, the delay is not inordinate in the facts and circumstances of the case and it has been sufficiently explained by the Central Government. Thus, we do not find that continued detention of the petitioner has been rendered illegal on the ground of delay involved in deciding the representation.
24. For the reasons stated above, we do not find any merit in the writ petition. The writ petition is accordingly dismissed. However, there will be no order as to costs.