NSA Can Be Invoked Against Jailed Accused If There Is Apprehension Of Public Order Disturbance Upon Release: Allahabad High Court

A bench of Justice Abdul Moin and Justice Babita Rani thus dismissed a Habeas Corpus Writ Petition filed by one Sunil Kumar Gupta, challenging the invocation of the NSA against himwhile they were in jail.

Briefly put, as alleged in the grounds of detention, the petitioner and his acquaintances carried out unauthorized digging and construction work adjacent to the Shree Krishna Janam Bhoomi and Dwarkadees temple in Mathura.

Despite objections from local residents, the excavation continued and it resulted in the collapse of five houses, cracks in half a dozen others. Also, three persons died including children.

The incident caused widespread panic, resulting in traffic congestion and the deployment of specialised forces, including the NDRF and SDRF. The petitioner was arrested after being booked under Section 105 BNS.

The petitioner moved a bail application on June 30, 2025, and two days later, the District Magistrate, Mathura, passed the impugned detention order (July 2).

Before the HC, the petitioner argued that there was no occasion for the detaining authority to invoke the NSA since the petitioner was already behind bars.

However, the bench rejected this contention by referring to Section 3 of the Act of 1980.

The Court explicitly ruled that where the detaining authority is of the opinion that a person, who is in jail, is likely to be released and, upon being released, there is a reasonable apprehension of such person indulging in acts prejudicial to public order, then the detaining authority may pass a detention order under Section 3 of the Act, 1980.

In this regard, the bench relied on the Supreme Court's Kamarunnissa vs Union Of India 1990 ruling, wherein the top court had observed thus:

"…even in the case of a person in custody a detention order can validly be 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 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 detain him 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 oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court".

The High Court observed that the detaining authority in the present case was fully aware of the pending bail application and of the palpable apprehension among the local residents that the petitioner would resume his illegal demolition activities upon release.

The court also added that the NSA invocation was justified due to the subjective satisfaction of the detaining authority in view of petitioner's criminal history.

The Court noted that previous FIRs pertaining to serious offences such as murder and criminal intimidation had been lodged against the petitioner, wherein witnesses and complainants did not come forward due to fear.

"While passing an order of detention under the Act, 1980, the detaining authority has to record its satisfaction to the effect that the detention of the detenue is necessary in order to prevent him from acting in any manner prejudicial to the public order or any of the other grounds specified in Section 3. The previous conduct or criminal antecedents of the detenue can be considered in arriving at such subjective satisfaction", the bench noted.

In its 31-page order, the Court also rejected the contention that an inordinate and unexplained delay took place in this case in deciding the detainee's representation, which vitiated the detention.

The bench noted that while the right to make a representation is a valuable constitutional right under Article 22(5) of the Constitution, no strict formula can be applied to determine whether a delay has occurred.

It stressed that a delay in itself is not fatal, and that an adverse view can be taken only where the delay is unexplained or reflects a callous and indifferent approach by the authorities.

"The affidavits filed by the respondent authorities demonstrate their conduct in dealing with the representation of the detenue petitioner and it cannot be said that they acted with indifference. The petitioner was also provided an opportunity to present his case before the Advisory Board which he duly exercised. Thus, the argument pertaining to the delay in deciding the representation is rejected", the bench remarked.