NSA Detention Permissible Against Accused In Custody When Release On Bail Poses Threat To Public Order : Allahabad High Court
Isabella Mariam
The Allahabad High Court (Lucknow Bench), Division Bench of Justice Abdul Moin and Justice Babita Rani, has held that a detention order under the National Security Act, 1980 can lawfully be passed against a person already in judicial custody, where the detaining authority forms an opinion that upon release on bail, the individual is likely to engage in activities prejudicial to public order. The Court accordingly dismissed a habeas corpus petition filed by a detenue challenging his detention, which arose from unauthorized excavation activities that caused the collapse of several houses, resulting in three deaths and widespread public unrest in the locality.
The habeas corpus petition was filed seeking release of the detenue from detention under the National Security Act, 1980 and for quashing of the detention order dated 02.07.2025 passed by the District Magistrate, Mathura, along with consequential proceedings and compensation. The petitioner corrected a typographical error in the prayer clause regarding the date of detention. The issue of maintainability was considered pursuant to a direction of the Supreme Court.
The petitioner challenged the detention on grounds that the incident amounted to a “law and order” issue and not “public order,” that there was delay in deciding the representation, that the detenue was already in custody with a pending bail application, and that criminal history was improperly relied upon. The detention arose from an incident dated 15.06.2025 involving alleged unauthorized excavation leading to collapse of houses, deaths of three persons, public protest, and road blockade. The authorities relied on Sections 3, 8 to 12 of the Act, 1980.
On the maintainability of a habeas corpus petition against a detention order passed under the National Security Act, 1980, the Court observed that it is always open for the detenue or anyone on his behalf to challenge the detention order by way of a habeas corpus petition on any of the grounds available to him.
On the distinction between "public order" and "law and order," the Court recorded that "the contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large." It further stated that "for an act to qualify as a disturbance to public order, the specific activity must have an impact on the broader community or the general public, evoking feelings of fear, panic, or insecurity."
On the validity of a detention order passed against a person already in custody, the Court stated 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."
It further recorded that "even in the 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 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."
On the relevance of criminal antecedents while passing a detention order, the Court observed that "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."
On the question of delay in deciding a detenue's representation, the Court stated that "the right to make representation is a safeguard against the arbitrary exercise of this power and thus, it is the duty of the courts to ensure that such a right is provided to a detenue in a real and effective manner, which also includes the right to have the representation decided within a reasonable time frame."
It further observed that "no strict formula can be applied to determine whether delay has occurred in deciding the representation or not" and that "what is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination."
The Court finally recorded that "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."
"Accordingly, the instant habeas corpus petition is dismissed."
Advocates Representing the Parties
For the Petitioners: Avinash Singh Vishen, Digvijay Singh, Nadeem Murtaza, Nikhil Mishra, Sudhanshu S. Tripathi, Advocates
For the Respondents: A.S.G.I., Dr. Pooja Singh, G.A., Sri S.N. Tilahari, AGA
Case Title: Sunil Kumar Gupta Alias Sunil Chain Through His Son Akshit Gupta vs Union of India Through Secretary, Ministry of Home Affairs, New Delhi and Others
Neutral Citation: 2026: AHC-LKO:7756-DB
Case Number: Habeas Corpus Writ Petition No. 307 of 2025
Bench: Justice Abdul Moin and Justice Babita Rani
