THE 11TH KIIT INTRA MOOT COURT COMPETITION, 2019

19TH – 20TH APRIL, 2019

TEAM CODE: TC-037

BEFORE THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:

CRIMINAL APPEAL NO.____ OF 2018
ARISING OUT OF SPECIAL LEAVE PETITION NO.___ OF 2018
Appeal Challenging the conviction by Trial Court, reaffirmed by the High Court
SAJID LONE (PETITIONER)
V.
UNION OF INDIA (RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME
COURT OF INDIA

MEMORIAL FOR SAJID LONE (APPELLANT)

 STATEMENT OF JURISDICTION

The respondent humbly submits before the Hon’ble Supreme Court of India,
the memorandum for the respondent in an appeal filed by the appellant under
Article 136 of the Constitution of India, 1950.

Article 136 of the Constitution reads:

“Article 136: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter passed or made by any
court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces”.

The memorandum sets forth the facts, issues and the arguments in the present case.
 STATEMENT OF FACTS

PROLOGUE

Sajid Lone who is a political leader from the State of Kulpama, believes in religious extremism
and is known to critique government policies in public congregation. There has been prima
facie evidence that suggests his immersion with organisations based on separatist ideologies.
He was found to have possession of alarming amount of explosives in his house following
which an FIR was lodged against him and he was arrested. After being released on regular bail,
he persistently made antagonistic remarks against the government in the public.

ORDER OF DETENTION

It came into the view of the State Government that his actions might be detrimental to the
security of the state and it was also found out that he had a record of 18 criminal cases. State
besought the provisions laid down by the Kulpama Public Safety Act, 1978 to detain him after
discerning that normal laws aren’t ample for the cause. After much scrutiny of the above facts,
the District Magistrate exercised powers conferred upon him by virtue of Section-8(a) of the
Kulpama Safety Act and ordered on 02-10-2018 under order no. 46/DETN/2018 the detention
of Sajid Lone and lodged him in Gandhi Nagar Central Jail for Six months. The order and
grounds of detention were served upon the detenu through the superintendent of the police on
05-10-2018. Sajid made representations in contradiction of his detention in front of the District
Magistrate but his representations were discharged and the order re-affirmed. On 10-12-2018
the detention order was established by the state government upon receiving a report by the
Advisory board.

WRIT PETITION IN HIGH COURT

The detenu then filed a Writ Petition in the High Court of Kulpama by reason of the order of
detention constituting a violation of Kulpama Public Safety Act and Art. 19(1)(a) and Art. 21
of the Constitution of India with contention that the District Magistrate doesn’t hold adequate
authority to pass the detention order and consider his representations. The High Court
dismissed the writ petition on the ground that the District Magistrate ordered the detention after
appreciating the entire documents for the reason of public safety which leads to the conclusion
that the order is free from infirmity and arbitrariness. The High Court also held that the District
Magistrate is the appropriate authority to pass the order.
 EPILOGUE

The detenu filed an SLP under Art. 136 of The Constitution of India before the Hon’ble
Supreme Court perplexing the order of the High Court and the Hon’ble Supreme Court has
decided to hear the case.
 STATEMENT OF ISSUES

I.
WHETHER THE SPECIAL LEAVE PETITION FILED BY THE APPELLANT
AGAINST THE JUDGMENT OF THE HIGH COURT OF KULPAMA IS
MAINTAINABLE?

II.

WHETHER THE HIGH COURT OF KULPAMA HAS ERRED IN APPRECIATING

THAT THE DETENTION ORDER IS IN VIOLATION OF PROCEDURE UNDER
KULPAMA PUBLIC SAFETY ACT, 1978?

III.

WHETHER THE HIGH COURT OF KULPAMA HAS RIGHTLY HELD THAT THE
ORDER OF DETENTION DOES NOT VIOLATE ARTICLE 19 1 (A) AND ARTICLE
21 OF THE CONSTITUTION OF INDIA?

IV.

WHETHER THE HIGH COURT HAS FAILED TO APPRECIATE THE SCOPE OF

JUDICIAL REVIEW IN PREVENTIVE DETENTION CASES?

V.

WHETHER THE HIGH COURT WAS RIGHT IN HOLDING THAT THE DISTRICT
MAGISTRATE IS THE CORRECT AUTHORITY FOR CONSIDERING THE
REPRESENTATION OF THE DETENU?
 SUMMARY OF ARGUMENTS

[1.] THAT THE SLP FILED BY THE APPELLANT UNDER ARTICLE 136 IS
MAINTAINABLE.

It is most humbly submitted before this Hon’ble Supreme Court of India that this special
leave petition is maintainable in this Court. The power of the Court to hear appeals in this
article is much wider and general. It vests in the SC plenary jurisdiction in the matter of
entertaining and hearing appeals by granting special leave against: (i) any judgment, decree,
determination or order, (ii) in any cause or matter, (iii) Passed or made by any court or tribunal.
The Petitioner in the present case has filed the SLP under article 136.

[2.] THAT THE HC OF KULPAMA HAS ERRED IN APPRECIATING THE

PROCEDURE LAID FOR GIVING A DETENTION ORDER

The appellant humbly submits before the Hon’ble SC that the procedure devised by the
Advisory board is arbitrary and unjustified as per the article 22 (4) of the Indian Constitution.
It is submitted that the role of advisory board is different from a judicial or quasi-judicial body.
It is submitted that no order of detention can be passed in the absence of any material which
confirms that the activity of any person, is prejudicial to the maintenance of public order.

[3.] THAT THE ORDER OF DETENTION HELD BY HC OF KULPAMA DOES

VIOLATE ARTICLE 19(a) & ARTICLE 21

The appellant asserts his fundamental rights guaranteed under Article 19(1)(a) of the
Constitution of India on the ground that the utterances (speech or slogans) attributable to him
cannot be termed to be in violation of any law and as such he has not committed any offence.1
Thus, it is contended that the appellant has exercised his freedom of speech & expression to
criticize the Govt. Policies in a lawful manner and not the Govt. itself, legislation has to fully
protect and guarantee the freedom of speech and expression, which is the sine qua non of a
democratic form of Govt. The ambit of right to life and personal liberty under article 21 should
be protected.

1
Kanhaiya Kumar v State of NCT Delhi,W.P.(CRL).No.558 of 2016
[4] THAT THE COURT HAS FAILED TO APPRECIATE THE SCOPE OF JUDICIAL
REVIEW IN PREVENTIVE DETENTION CASES

It is humbly submitted that the court has failed to appreciate the scope of judicial review in
cases of preventive detention while reviewing a detention order, a court does not substitute its
judgment for the decision of the executive. Nonetheless, the Court has a duty to enquire that
the decision of the executive is made upon matters laid down by the statute as relevant for
reaching such a decision. For what is at stake, is the personal liberty of a citizen guaranteed to
him by the Constitution and of which he cannot be deprived, except for reasons laid down by
the law and for a purpose sanctioned by law.

[5] THE DISTRICT MAGISTRATE IS NOT THE CORRECT AUTHORITY FOR THE
REPRESENTATION OF THE DETENU
The counsel from the appellant side humbly submits before the Hon’ble SC that he was in
custody of the police authorities for a substantive offence and, therefore, there was no need to
direct his preventive detention.
 ARGUMENTS ADVANCED
[1.] THAT THE SLP FILED BY THE APPELLANT UNDER ARTICLE 136 IS
MAINTAINABLE.

1.It is most humbly submitted before this Hon’ble Supreme Court of India that this special
leave petition is maintainable in this Court. Article 136 of the Constitution of India reads as
follow: -

136. Special leave to appeal by the Supreme Court ---

(1) Notwithstanding anything in this chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in
anycause or matter passed or made by any court or tribunal in the territory of India. (2)
Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed forces.

The power of the Court to hear appeals in this article is much wider and general. It vests in the
SC plenary jurisdiction in the matter of entertaining and hearing appeals by granting special
leave against:

(i) any judgment, decree, determination or order,

(ii) in any cause or matter,

(iii) Passed or made by any court or tribunal. The Petitioner in the present case has filed the
SLP under article 136.

In Delhi Judicial Service Association vs. State of Gujarat2 it was contended by the Supreme
Court that: -

“Under Article 136 there is no room for any doubt that this Court has wide power to interfere
and correct the Judgment and orders passed by any court or Tribunal in the country. In
addition to the appellate power, the Court has special residuary power to entertain appeal
against any order of any court in the country. The plenary jurisdiction of this Court to grant
leave and hear appeals against any order of a court or Tribunal, confers power of judicial
superintendence overall the courts and Tribunals in the territory of India including subordinate
courts of Magistrate and District Judge. This Court has, therefore, supervisory jurisdiction
over all courts in India”

In an another case of Arunachalam vs P. S. R. Sadhanantham3 it was again contended by

the SC that: -

“Article 136 of the Constitution of India invests the Supreme Court with a plentitude of
plenary, appellate power over all courts and Tribunals in India. The power is plenary in the
sense that there are no words in Article 136 itself qualifying that power. But, the very nature
of the power has led the court to set limits to itself within which to exercise such power. It is
now the well-established practice of this Court to permit the invocation of the power under
article 136 only in very exceptional circumstances, as when a question of law of general public
importance arises or a decision shocks the conscience of the Court. But, within the restrictions
imposed by itself, this Court has the undoubted power to interfere even with findings of fact,
making no distinction between judgments of acquittal and conviction, if the High Court, in
arriving at those findings, has acted "perversely or otherwise improperly"."

Where grave and substantial injustice has been done by disregard to the forms of legal process,
or Violation of the principles of natural justice or otherwise. Thus, it is crystal clear from the
above mentioned facts that the SC will not grant special leave to appeal u/a 136 of the COI
unless it is shown that special and exceptional circumstances exist, that substantial and grave
injustice has been done and the case in question presents features of sufficient gravity to

2
1991 AIR 2176, 1991 SCR (3) 936
3
1979 AIR 1284
warrant a review of the decision appealed against. Further, in the exercise of its special leave
appellate jurisdiction, the Supreme Court will not interfere with the concurrent findings of the
Courts below, unless, of course, the findings are perverse or vitiated by error of law, or if there
is gross miscarriage of justice.

The same contention is held in the case of Mohd. Hussain Umar Kochra Etc vs K.
S.Dalipsinghji & Anr4 which is:-

“This Court does not reappraise the evidence unless the findings are perverse or are vitiated
by any error of law or there is a grave miscarriage of justice”.

In case of Indira Kaur And Ors. vs Sheo Lal Kapoor5 it was held as following: -

“If and when the Court is satisfied that great injustice has been done it is not only the 'right'
but also the 'duty' of this Court to reverse the error and the injustice and to upset the finding
notwithstanding the fact that it has been affirmed thrice.”

In this case also this Hon’ble Court has not only but it is also the duty of the SC to reverse the
error and injustice and pass an appropriate, just and equitable order. In exceptional cases the
Court admits appeals under Article 136 even though the appellant has not exhausted all the
other remedies, if there are exceptionally sound reasons for such admission.

In Haripada vs. State of West Bengal6 Supreme Court held that: -

“No High Court has the jurisdiction to pass on mere questions of fact for further consideration
by this Court under the relevant articles of the Constitution. We no doubt possess that power
and in proper cases have exercised it under article 136(1). If there has been a gross
miscarriage
of justice or a departure from legal procedure such as vitiates the whole trial, we would certa
inly intervene and we would also intervene if even the findings of fact were such as were
shocking to our judicial conscience and grant in such cases special leave to appeal under
article 136(1)”

[2.] THAT THE HC OF KULPAMA HAS ERRED IN APPRECIATING THE

PROCEDURE LAID FOR GIVING A DETENTION ORDER

4
AIR 1970 SC 45 , 1969 SCC (3) 429
5
(1988) 2 SCC 488, 499:AIR 1988 SC 1074
6
1956 AIR 757, 1956 SCR 639
The appellant humbly submits before the Hon’ble SC that the procedure devised by the
Advisory board is arbitrary and unjustified as per the article 22 (4) of the Indian Constitution.
It is submitted that the role of advisory board is different from a judicial or quasi-judicial body
[2.1], It is submitted that no order of detention can be passed in the absence of any material
which confirms that the activity of any person, is prejudicial to the maintenance of public order
[2.2], the detention order was approved by the Govt.12 days later from the date of order[2.3].

[2.1] The role of advisory board is different from a judicial or quasi-judicial body

The decision of the Advisory board is essentially different in character from a judicial or quasi-
judicial decision. It would be entirely erroneous and wholly unsafe to treat the opinion
expressed by the Advisory Board having regard to the nature of the enquiry held by it, as
amounting to judgement of a criminal court.

The function of the Board is purely advisory and it does not make the detention valid if it is
ultra vires the relevant Act or the Constitution. Hence, habeas corpus still lie against the initial
order of detention notwithstanding report of the Advisory Board confirming it, on the ground
that the law is ultra vires or that the order is mala fide. Again, habeas corpus would lie even
before the detenu’s case is placed before or considered by the Advisory Board. In other words,
the HC’s jurisdiction under Art.226 is not in any way controlled by the constitution of the
Advisory Board.

Thus, it is submitted in its finality that the HC of Kulpama has erred in appreciating the
detention order of the appellant.

[2.2] It is submitted that no order of detention can be passed in the absence of any material
which confirms that the activity of any person, is prejudicial to the maintenance of public
order

It is submitted by the appellant that any punishable offence which does not disturb the public
order and simply creates the law and order question, there cannot be order of detention only
because of filing of FIRs/ complaints for such offences. It is further submitted that unless there
is subjective satisfaction of the detaining authority regarding continuous commission of certain
activities in a manner which prejudice the maintenance of public order, order of detention
cannot be passed.
It is also submitted that only criticizing Govt. policies, the state of Kulpama has managed to
involve the appellant in the offence of sedition and order of detention, without any basis and
substance and to that extent, the order of detention is full malice against the appellant.

Thus, the appellant humbly submits that the detention order is in violation of the procedure
under KPS Act, 1978.

[2.3] The detention order was approved by the Govt.12 days later from the date of order

Sub-Section (4) of Section 8 of the KPS Act,1978 stipulates that when any order is made under
the said Section by a person mentioned in sub-section (2), he shall forthwith report the fact to
the Government together with the grounds on which the order has been made and such of the
particulars as in his opinion have a bearing on the matter, and no such order shall remain in
force for more than twelve days after the making thereof unless in the meantime it has been
approved by the Government. This clearly implies that though the District Magistrate can make
a detention order, such detention order requires to be approved by the Government not later
than 12 days from the date of the order.

In this case, the detention order was passed by the District Magistrate dated on 02-10-2018,
whereas the State Govt.confirmed the detention order on 10-12-2018, which implies there was
a gap of 2 months, which clearly suggests there was a gross violation of KPS Act, 1978. In
view of the foregoing, we need not to consider any of the other pleas sought to be raised by the
learned counsel for the appellant, in as much as the detention order has been invalidated
because of non-communication of the detention order to the Govt. Within 12 days from the
date of order. The detention order having become invalid, the detenu is liable to be released
forthwith in so far as this detention order is concerned.

[3.] THAT THE ORDER OF DETENTION HELD BY HC OF KULPAMA DOES

VIOLATE ARTICLE 19(a) & ARTICLE 21

The appellant asserts his fundamental rights guaranteed under Article 19(1)(a) of the
Constitution of India on the ground that the utterances (speech or slogans) attributable to him
cannot be termed to be in violation of any law and as such he has not committed any offence.7
Thus, it is contended that the appellant has exercised his freedom of speech & expression to
crirticize the Govt. Policies in a lawful manner and not the Govt. itself [3.1], legislation has to

7
Kanhaiya Kumar v State of NCT Delhi,W.P.(CRL).No.558 of 2016
fully protect and guarantee the freedom of speech and expression, which is the sine qua non of
a democratic form of Govt. [3.2], the ambit of right to life and personal liberty under article 21
should be protected [3.3]

[3.1] Freedom of speech & expression was exercised to criticize the Govt. policies in a
lawful manner and not the Govt. itself

Strong words used to express disapprobation of the measures of Government with a view to
their improvement or alteration by lawful means would not come section 124A of IPC. 8
Similarly, comments, however strongly worded, expressing disapprobation of actions of the
Government, without exciting those feelings which generate the inclination to cause public
disorder by acts of violence, would not be penal.9

The appellant, a political leader criticizing the Govt. policies while addressing the public
gathering and motivating the youth to raise their voice on the same does not amount to an
offence of sedition, rather as a conscious and watchful citizen exercises his freedom of speech
and expression without the use of violence. Criticizing Govt. policies does not amount to
criticizing the Govt. itself. In other words, disloyalty to Government established by law is not
the same thing as commenting in strong terms upon the measures or acts of Government, or its
agencies, so as to ameliorate the condition of the people or to secure the cancellation or
alteration of those acts or measures by lawful means, that is to say, without exciting those
feelings of enmity and disloyalty which imply excitement to public disorder or the use of
violence.

A perusal of the facts makes it clear that the appellant has exercised his fundamental rights of
freedom of speech and expression by criticizing the Govt. policies in a lawful manner without
committing any offence of sedition.

[3.2] The freedom of speech and expression is the sine quo non of a democratic form of
Govt.

Any speech or use of words which is directed to the criticism of the measures of the Govt. or
acts of the public officials does not lead to the offence of sedition. The hon’ble SC Court, as
the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it

8
Kedar Nath Singh vs State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769
9
Sanskar Marathe vs the state of Maharashtra and Anr, MANU/MH/0953/2015
of striking down any law which unduly restricts the freedom of speech and expression with
which we are concerned in this case.10

The contentions stated makes it clear that the criticism on the Govt. measures or comment on
Govt. actions even though strongly worded was under reasonable limits and was consistent
with the fundamental rights of freedom of speech and expression.

It must be observed that criticism on political matters is not of itself seditious. The test is the
manner in which it is made. Candid and honest discussion that passes the bounds of fair
criticism is permitted.

Hence, it is submitted in its finality by the appellant that his freedom of speech and expression
is clearly applicable in the instant case.

[3.3] The ambit of right to life and personal liberty under article 21 should be protected
The appellant applies under Art. 32 of the constitution for a writ of habeas corpus and for his
release from detention, on the ground that the detention contravenes the provision of Arts.13,
19, 21 and 22 of the Constitution and is consequently ultra rites and that his detention was
therefore illegal.

The question of personal liberty of a person is sacrosanct and State Authority cannot be
permitted to take it away without following the procedure prescribed by law, otherwise it
would be violative of the fundamental rights guaranteed under Articles 21 and 22 of the
Constitution. Article 21 embodies a constitutional value of supreme importance in a
democratic society and has been characterised as the procedural magna carta protective of
life and liberty.11

Preventive detention is a direct infringement of the right guaranteed in Art.19 (1) (a), even if a
narrow construction is placed on the said sub-clause, and a law relating to preventive detention
is therefore subject to such limited judicial review as in permitted by Art.19(2).

Hence, it is submitted in its finality by the appellant that the ambit of right to life and personal
liberty under article 21 should be protected.

[4] THAT THE COURT HAS FAILED TO APPRECIATE THE SCOPE OF JUDICIAL
REVIEW IN PREVENTIVE DETENTION CASES

10
Kedar Nath Singh vs State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769
11
Maneka Gandhi vs UOI, 1978 AIR 597, 1978 SCR (2) 621
It is humbly submitted that the court has failed to appreciate the scope of judicial review
in cases of preventive detention [4.1]

While reviewing a detention order, a court does not substitute its judgment for the decision of
the executive. Nonetheless, the Court has a duty to enquire that the decision of the executive is
made upon matters laid down by the statute as relevant for reaching such a decision. For what
is at stake, is the personal liberty of a citizen guaranteed to him by the Constitution and of
which he cannot be deprived, except for reasons laid down by the law and for a purpose
sanctioned by law. As early as in Machinder Shivaji v. The King12, this Court observed: -

"and it would be a serious derogation from that responsibility if the Court were to substitute its
judgment for the satisfaction of the executive authority and, to that end, undertake an
investigation of the sufficiency of the materials on which such satisfaction was grounded.

The Court can, however, examine the grounds disclosed by the Government to see if they are
relevant to the object which the legislation has in view, namely, the prevention of acts
prejudicial to public safety and tranquillity, for "satisfaction" in this connection must be
grounded on material which is of rationally probative value."

Later, in the case of Khudiram Das vs. The State of West Bengal and Others 13 , while
considering the judicial reviewability of the subjective satisfaction of the detaining authority,
the Court surveyed the area within which the validity of the subjective satisfaction can be
subjected to judicial scrutiny in the following paragraphs: -

“There are several grounds evolved by judicial decisions for saying that no subjective
satisfaction is arrived at by the authority as required under the statute. The simplest case is
whether the authority has not applied its mind at all; in such a case the authority could not
possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor
v. Shibnath Banerji14 is a case in point. Then there may be a case where the power is exercised
dishonestly or for an improper purpose: such a case would also negative the existence of
satisfaction on the part of the authority.

The existence of 'Improper purpose', that is, a purpose not contemplated by the statute, has been
recognised as an independent ground of control in several decided cases. The satisfaction,

12
A.I.R. 1950 F.C. 129
13
AIR 1975 SC 550.
14
(1946) 48 BOMLR 1
moreover, must be a satisfaction of the authority itself, and therefore, if in exercising the power,
the authority has acted under the dictation of another body as the Commissioner of Police did
in Commissioner of Police v. Gordhandas Bhanji 15and the officer of the Ministry of Labour
and National Service did in Simms Motor Units Ltd. V. Minister of Labour and National
Service16, the exercise of the power would be bad and so also would the exercise of the power
be vitiated where the authority has disabled itself from applying its mind to the facts of each
individual case by self-created rules of policy or in any other manner. The satisfaction said to
have been arrived at by the authority would also be bad where it is based on the application of
a wrong test or the misconstruction of a statute.

Where this happens, the satisfaction of the authority would not be in respect of the thing in
regard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on
materials which are of rationally probative value. The grounds on which the satisfaction is
based must be such as a rational human being can consider connected with the fact in respect
of which the satisfaction is to be reached.

They must be relevant to the subject-matter of the inquiry and must not be extraneous to the
scope and purpose of the statute. If the authority has taken into account, it may even be with
the best of intention, as a relevant factor something which it could not properly take into
account in deciding whether or not to exercise the power or the manner or extent to which it
should be exercised, the exercise of the power would be bad.17

[4] THE DISTRICT MAGISTRATE IS NOT THE CORRECT AUTHORITY FOR

THE REPRESENTATION OF THE DETENU
The counsel from the appellant side humbly submits before the Hon’ble SC that he was in
custody of the police authorities for a substantive offence and, therefore, there was no need to
direct his preventive detention [4.1].

[4.1] The appellant was in custody of police authorities and there was no need to direct his
preventive detention18

Since the detenu was in the custody of the police at the time of passing of the order of detention,
therefore, the question that arises for consideration is whether an order of detention could be

15
AIR (39) 1952 SC 16
16
[1946] 2 ALL ER 201
17
Sama Aruna v State of Telengana (2018) 12 SCC 150
18
Farooq Ahmad Bhat v. State of J & K, 2018 SCC OnLine J&K 924
passed on the face of such an eventuality. The answer to this question is an emphatic "No",
taking into consideration the law laid down by the Apex Court of the country in paragraph
No.24 of the judgment delivered in the case of Sama Aruna v. State of Telangana & Anr.,
which may be noticed:

"24. There is another reason why the detention order is unjustified. It was passed when the
accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was
converted into custody under the impugned detention order. The incident involved in this
offence is sometime in the year 2002-03. The detenue could not have been detained
preventively by taking this stale incident into account, more so when he was in jail. In Ramesh
Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

"6. 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 carryon 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 under trial prisoner was
likely to get bail an order of detention under the National Security Act should not ordinarily be
passed."

Testing the instant case on the touchstone of the law laid down above, the detenu could not
have been detained after taking recourse to the provisions of the Act of 1974, when he was
already in the custody of the police authorities in the cases, the details whereof have been
given hereinbefore. His custody in police for the offences stated above, has been converted
into the custody under the impugned detention order. May be the detaining authority might
have been labouring under the belief that if the detenu applies for bail, he may succeed in
seeking his release but this apprehension of the detaining authority could have been guarded
against by resisting and opposing the bail application. In the event of his release on bail, the
State could have exercised its right to knock at the doors of a higher forum. This single
infraction knocks the bottom out of the contention raised by the State that the detenu can be
detained preventatively when he is already in custody and has not applied for bail. It cuts at
the very root of the State action. The State could have taken recourse to the ordinary law of
the land.