AYYA ALIAS AYUBversusSTATE OF U.P. & ANR.

                       AYYA ALIAS A YUB                                     A
                               v.
                      STATE OF U.P. & ANR.

                        NOVEMBER 25, 1988

[RANGANATH MISRA AND M.N. VENKATACHALIAH, JJ.]                              B

       Constitution of India, 1950: Article 21-Personal liberty-
Greatest of human freedoms-Preventive detention laws-To be strictly
construed-Procedural safeguards-Meticulous compliance to be
insisted upon.

     National Security Act, 1980: Sections 3 and 5-detention order-
                                                                            c
Subjective satisfaction of detaining authority-Necessity for-What
would be a simple 'law and order' situation may assume gravity and
mischief of 'public order' problem.

       Statutory Interpretation: Preventive Detention laws to be strictly   D
construed-meticulous compliance with procedural safeguards to be
insisted upon.

      The petitioner-detenu was involved in three incidents of offensive
activity. In the first two incidents he is alleged to have damaged the
buses of one Anil Gautam whereupon non-cognizable offences under            E
section 504, 427 I.P.C. were registered against him. In the third inci-
dent he is alleged to have caused the death ofAn;J Gautam by giving him
knife blows and a case under s. 3021.P.C. was registered against him.

      While the detenu was in judicial custody, the detaining authority,
apprehending his release on bail, passed the order of detention against     F
him under s. 3(2) of the National Security Act, 1980. The three grounds
of detention related to the three incidents stated above.

       On behalf of the petitioner in the writ petition, it was contended
that the order of detention was vitiated because (i) the grounds, even
assuming to be true, were focapable in law of producing the satisfaction G
of any apprehension in regard to the maintenance of the public-order,
and, at the worst, did no more than to suggest a possible 'law and order'
situation; (ii) the object of the present detention w..s avowedly _to
render nugatory the benefit of the bail since granted to the detenu; and
(iii) the detaining authority failed to consider the telegram sent on
behalf of the petitioner complaining that the petitioner had been taken H
                                   967
    968           SUPREME COURT ·REPORTS              [1988] Supp. 3 S.C.R.

A away by the police at 8.00 p.m. earlier that night while the incident of
  assault on Anil Gautam, as stated in the third ground, occurred at
  about 9.10 p.m. that night.

            Ramesh Yadav v. Distt. fr!agistrate Etah, AIR 1986 SC 315, relied
    upon.
B
           On behalf of the State, it was contended that the three acts
    attributed to the detenu had serious adverse effect on the even tempo of
    life in the locality and produced a "public-order" problem and that the
    detention fully satisfied all the procedural-safeguards.


c was, Allowing the writ petition and quashing the order of detention it
           HELD: (1) Section SA of the Act provides that where a person has
    been detained on two or more grounds, such order shall be deemed to
    have been made separately on each of such grounds. The object of sec.
D   SA is that if any of the grounds is found to be vague, non-existent, not
    relevant, not connected with the detenu or is invalid for any other
    reason whatsoever, it should be open to the detaining-authority to sup-
    port the detention order on such ground or grounds as may not be so
    vitiated. (971B-C]                                              .

E          (2) Personal liberty protected under Article 21 of the Constitution
    is held so sacrosant and so high in the scale of constitutional values that
    in a habeas corpus petition the obligation of the detaining-authority is
    not confined just t.o meet the specific-grounds of challenge but is one of
    showing that the impugned detention meticulously accords with the
    procedure .established by Jaw. The law of preventive-detention are
F   strictly construed an.d compliance with the procedur~I safeguards, how-
    ever technical, is strictly insisted upon by the courts. [974F-H]

            Thomas Pelham Dales's, case (1881] 6 QBD 376, referred to.

          (3) The compulsions of the primordial need to maintain order in
G   society, without which the enjoyment of all rights, including the right to
    personal liberty, would lose all its meaniiig is the true justification
    for the laws of preventive detention. The pressures of the day in
    regard to the imperatives of the security of the State and of public-
    order might it is true require the sacrifice of the personal liberty of
    individuals. [975G-H]
H
                         AYYA v. STATE OF U.P.                          969

       (4) The actual manner of administration of preventive detention          A
is of utmost importance. The law has to be justified by the genius of its
administration so as to strike the right balance between individual
liberty on the one hand and the needs of an orderly society on the
other. Adjustments and readjustments are constantly to. be made and
reviewed in maintaining the right balance according to the pressures
of the day. [976C-E]

     lchudevi v. Union of India, AIR 1980 SC 1983; Vijay Narain
Singh v. State of Bihar, AIR 1984 SC 1334 and Hem Lall Bhandari v.
Sikkim, AIR 1987 SC 762, referred to.

      (5) There are well recognised objective and judicial tests of the         C
subjective satisfaction for preventive detention. Amongst other things,
the material considered by tlie detaining-authority in reaching the
satisfaction must be susceptible of the s·atisfaction both in law and in
logic. (978GJ

       (6) It is true that if the only ground of justification for the deten-   D
tion is the apprehension that the detenu was likely to be enlarged on
bail, the detention might be rendered infirm. But where, as here, there
are other grounds, the reference by the detaining authority to the
prospects of grant of bail could be no more than an emphasis
on the imminence of the recurrence of the offensive activities of the
detenu. l979B-F]                                                                E
      (7) Even a siiigle instance of activity tending to harm "public-
order" might, in the citcllmstances of its commission, reasonably
supply justification for the satisfaction as to a legitimate apprehension
of a future repetition of similar activity to the detriment of "public'
order". i979F]                                                                  F
     (8) Even if a prosecution against a person fails or bail is granted
an order of detention tould be passed drawing the satisfaction therefore
from the facts and circuinstaiices in the criminal proceedings. But it is
necessary for the detaining authority to r-esist the temptation to
prefer and substitute, as a matter of course, the easy expedience               G
of a preventive detention to the more cuinbe:--some one of punitive
detention. [979G-H; 980A]

     (9) What might be an oiherwise simple "law and order" situation
might assume the gravity and mischief of a "public,order" problem by
reason alone of the manner or circumstances in which or tlie place at           H
which it is carried out. [980E]
     970            SUPREME COURT REPORTS              [1988] Supp. 3 S.C.R.

              Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, referred
 A
     to.

           JIO) The first two grounds which pertain to the commission of
     non-cognizable offences have no rational nexus relatable to the
     maintenance of public order. The alleged attacks were directed against
 B   the same ·individual and, even according to the police, they constituted
     merely offences of a non-cognizable nature. [980D-F)

         (l JJ It is not disputed that the telegram was not placed before and
  considered by the detaining authority. If a piece of evidence which              ,_
  inight reasonably have affected the decision whether OI' not to pass an
C order of detention is excluded from consideration, there would be afailure
  of application of mind which, in turn, vitiates the detention. [981 G-H; 982A)

              ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 210 of
     19il8.

D          · (Under Article 3~ of the Constitution of India.)

           R.K. Garg, R.S.M. Verma and Shakil Ahmad Syed for the
     Petitioner.

         V.C. Mahajan, Yogeshwar Prasad, Ms. A. Subhashini, Dalveer
E    Bhandari, Rachna Joshi and H.K. Puri for the Respondents.

              The Judgment of the Court was delivered by

          YENKATACHALIAH, .I. By this writ petition under Article 32
   ot the Constitution •. the detenu-Ayya alias Ayub, son of Babu Khan,
F lesidence No. 100, Khernagar, P.S. Delhi Gate, Meerut-challenges
   the order of detention dated 28/2/ 1988 passed by the District Magis-
   trate, Meerut, ordering the detention of the petitioner under Sec. 3(2)
   of the National Security Act, 1980, on the said authority's satisfaction
   that such detention is necessary with a view to preventing petitioner
  ·from acting in a manner prejudicial to the maint.enance of the "public-
G order··. At the time of the passing of the order, petitioner was already
   in judicial-custody in connection with a criminal prosecution arising
   out of the incident referred to in one of the grounds of detention.

          2. Section 3(2) of the Act provides, inter alia, that the Central
     Government or the State Government, may make an order with
H    respect to any person for purposes of preventing him from acting in a
                  AYYA v. STATE OF U.P. [VENKATACHALIAH, J.]                 971
...
      manner prejudicial to the maintenance of the public-order. The sub-
                                                                                    A
      section provides for detention on certain other grounds which are not
      germane to the present matter as the avowed object of the impugned
      detention is in relation to, and for the purposes of, the maintenance of
      public order. Sec. SA of the Act also provides that where a person has
      been detained on two or more grounds, such order shall be deemed to
      have been made separately on each of such grounds. The object of              B
      Sec. SA is that if any of the grounds is found to be vague, non-existent,
      not relevant, not connected with the detenu or is invalid for any other
      reason whatsoever, it should be open to the detaining-authority to
      support the detention order on such ground or grounds as may not be
      so vitiated.

            3. We have heard Shri R.K. Garg, learned Senior Counsel for             c
      the petitioner and Shri Yogeshwar Prasad, learned Senior Counsel for
      the detaining-authority.

             Shri Garg strenuously contended that the impugned detention is
      an instance of a demonstrable abuse of power and the grounds are              D
      wholly ultra vires of the power of detention in that-quite apart from
      the falsity of the allegations and other legal infirmities-the grounds,
      even assuming to be true, are incapable in law of producing the
      satisfaction of any apprehension in regard to the maintenance of the
      public-order. The grounds, at the worst, Learned Counsel contends do
      no more than to suggest a possible 'law and order' situation and not a        E
      'public-order' situation. The detention, it is urged, is also vitiated by a
      non-application of mind by an omission to consider material capable of
      influencing the satisfaction.

             Shri Yogeshwar Prasad, however, sought to support the order of
      detention, relying upon the records of the proceedings and the                f
      affidavit filed by the detaihing-authority. The concerned police of-
      ficers have also filed their counter-affidavits.

            4. In order to appreciate the contentions urged at the hearing, it
      is necessary to advert to the three grounds on wl>ich the satisfaction on
      the part of the detaining-authority for the need for the detention was G
      reached. They are:

                   1. 'That on 6.2.88 at Ghursal Mor, near Jamaniya Bagh
                      R.T.O. Road, P.S. Railway Road at 3.SO P.M. you
                      along with your other companions stopped Mini Bus
                      No. U.S.Q. 9278 and you immediately started break-            H
                              •

    972   SUPREME COURT REPORTS             I1988] Supp. 3 S.C.R.      •
             ing the glass screens of the bus with an iron rod and
A
             your companions hurled brick-bats at the glasses of the
             bus and extended abuses to the driver. On being told
             about above incident by Shri Chandrapal, Driver of
             Mini Bus, Shri Anil Gautam made a written complaint
             on the basis of which a report No. 8 of non-cognizable
B            offence was registered u/s 504, 427 of I.P.C. Your
             aforesaid misdeed caused fear and terror among the
             common public and in this way you committed an act
             which is prejudicial to the maintenance of public
             order.''

            "2. That, on 13.2.1988 at about 11.45 P.M. in front of
c           Faize-e-Aam Inter College, Meerut on the open road
            you alongwith your other companions displayed
            "gundaism" and stopped Bus No. U.S.N. 8377 which
            was going from Medical College to City Station and
            you had broken the glass screens of the said bus and
D           abused Shri Bairam the driver and Vipin the conductor
            of the bus, which caused fear and terror among the
            general public. On the basis of the information given
            by Shri Anil Gautam the Report No. 15 for non-
            cognizable offence u/s 427, 504 of l.P.C. was registered
            at P.S. Delhi Gate. In this way you acted in such a
E           manner which is prejudical to the maintenance of
            public order."

            3. That, on 18.2.1988 near Caltex Petrol Pump on
            Delhi-Muzzafar Nagar Road at about 9.10 O'clock at
            night you alongwith your other three companions
F           reached at the Book stall situated at the aforesaid
            petrol pump, and holding him by neck you pulled Shri
            Anil the book seller and you, with intent to kill him
            gave blows of knife on his neck and chest and you also
            assaulted with knife on other parts of his body, be-
            cause of which the nearby shops were closed down due
G           to fear and terror caused by you and the people were
            alarmed. You committed the above misdeed because
            on 30th December 1987 at about 7.00 P.M. you had
            teased a girl who was the daughter of an Army Major,
            whHe she was buying a magazine from the aforesaid
            Book-stall and this was objected by Mr. Anil but you
H           did not refrain from teasing the girl, then Anil had
            AYYA v. STATE OF U.P. [VENKATACHALIAH, J.]               973

               beaten you. On which you and your companions                 A
               threatened Mr. Anil that this Enmity will be too ex·
               pensive for him. On the basis of a written information
               given by Mr. Brij Mohan, Crime No. 59 under Section
               307 I.P.C. was registered against you which, after the
               death of injured Anil in the Hospital, was covered into
               an offence under Section 302 of I.P.C. and this offence      B
               is under investigation. Your aforesaid misdeed has
               caused fear and terror among the general public and in
               this way you have committed an act which is prejudi·
               cial to the maintenance of public order.

                     At present you are confined in District Jail,
               Meerut, and you are trying to get released on bail and
                                                                            c
               there is every possibility of you being released on bail."
                                                      (Emphasis Supplied)

      Shri Garg submitted that the first two grounds which, even
according to the detaining· authority, constitute non-cognizable            D
offences ne;;ate the requisite degree or gravity of the activity which
could reasonably be said to be productive of a "public-order" situa·
lion. The adhered activities are liable to be dealt with in accordance
with the ordinary law of the land and that in both the cases a certain
Anil Gautam was the complainant and the attack was against the bus
belonging to him, it being incidentally suggested that the driver and       E
the conductor of the bus were also released. It was not a part of the
grounds, says learned counsel, that there were passengers in the bus at
the time and conduct of the petitioner caused a scare amongst them.
The inference drawn by the detaining-authority, that the activities
referred to in grounds (I) and (II) did create a "public-order" situation
is therefore, contends counsel, vitiated by a lack of rational nexus        F
between the activity attributed to the petitioner and a "public-order"
situation. Learned counsel submitted that the satisfaction to be
reached by the detaining-authority, subjective though it be must rest
on material which is capable in law of producing the satisfaction and
the concept of "public-order" is what law understands and recognises
as such and not what the detaining-authority misunderstands it to be.       G

      5. In regard to the third ground of detention, learned counsel
said, the petitioner was taken into custody at 8.00 PM on 18.2.1988
and that the wireless message sent at 8.07 P .M. by the Mobile Van to
the Circle Police Officer and the Superintendent of Police had specifi·
cally referred to the attack on Anil Gautam and had clearly omitted to      H
    974         SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A   mention the name of the petitioner and the alleged witnesses. Shri
    Garg submitted that the allegations that the attack on Anil Gautam at
    9.10 PM that day, as now asserted in Ground No. III would stand
    disproved if the original "Log-Book" recording the wireless-messages
    had been produced. He submitted the sheaf of loose sheets purporting
B   to be "Log-Book" produced before this Court was not the original
    "Log-Book". These loose-sheets, it is urged, had been discarded by
    the Learned Sessions Judge who had since granted Bail to the
    petitioner. Learned Counsel submitted that the object of the present
    detention was avowedly to render nugatory the benefit of the Bail.
    Shri Garg relied upon the pronouncement of this Court in Ramesh
    Yadav v. Distt Magistrate Etah, AIR 1986 SC 315, to contend that if the
c   detention is ordered because the detaining-authority was apprehensive
    that in case the detenu was released on bail he would carry on his
    criminal activity, it would not be a proper exercise of the power to
    detain.

D          6. Shri Garg submitted that at U.30 A.M. that very night, on
    18.2.'1988 a certain Mirazuddin acting on behalfof the petitioner, had
    sent a telegram to the Senior Superintendent of Police, Meerut,
    complaining that the petitioner had been taken away by the police at
    8.00 PM earlier that night. Shri Garg submitted that this document
    which improbablised petitioner's participation in the incident alleged
R   at 9.10 P.M. that night ought to have been placed before and con-
    sidered by the detaining-authority and a non-consideration of this
    document vitiated the order of detention for non-application of mind.

           Shri Yogeshwar Prasad submitted that the three acts attributed to
    the detenu had serious adverse effect on the even tempo of life in the
f   locality and produced a "public-order" problem and that the detention
    fully satisfied all the procedural-safeguards.

         · 7. Personal liberty protected under Article 21 of the Constitu-
    tion is held so sacrosanct and so high in the scale of constitutional values
    that this Court has shown great anxiety for its protection and wherever
G   a petition for writ of habeas-corpus is brought-up, it has been held that
    the obligation of the detaining-authority is not confined just to meet
    the specific-grounds of challenge but is one of showing that the
    impugned detention meticulously accords with the procedure estab-
    lished by law. Indeed the English Courts a century ago echoed the
    stringency and concern of this judicial vigilance in matters of personal
H   liberty in the following words:
            AYYA v. STATE OF U.P. [VENKATACHAL!AH, J.J                975

            "Then comes the question upon the habeas corpus. It is a A
            general rule, which has always been acted upon by the
            Courts of England, that if any person procures the im-
            prisonment of another he must take care to do by steps, all
            of which are entirely regular, and that if he fails to follow
            every step in the process with extreme regularity the Court
            will not allow the imprisonment to continue." [Thomas B
            Pelham Dales' case, (1881) 6 QBD 376 at page 461].

      It has been said that the history of liberty has largely been the
history of observance of procedural safeguards. The procedural sinews
strengthening the substance of the right to move the court against
executive invasion of personal liberty and the due dispatch of judicial-     C
business touching violations of this great is stressed in the words of
Lord Denning:

           "Whenever one of the King's Judges takes his seat, there is
           one application which by long tradition has priority over all
           others. Counsel has but to say 'My Lord, I have an applica-       D
           tion which con.::crns the liberty of the subject' and forth-
           with the Judge will put all ot~er matters aside and hear it. It
           may be an application for a writ of habeas corpus, or an
           application for bail, but, whatever form it takes, it is heard
           first."
                                                                             E
            [Freedom under the Law, Hamlyn Lectures, 1949]

       8. Personal liberty, is by every reckoning, the greatest of human
freedoms and the laws of preventive-detention are strictly construed
and a meticulous compliance with the procedural safeguards, however
technical, is strictly insisted upon by the courts. The law on the matter F
did not start on a clean state. The power of courts against the harsh
incongruities and unpredictabilities of preventive detention is not a
merely 'a page of history' but a whole volume. The compulsions of the
primordial need to maintain order in society, without which the enjoy-
ment of all rights, including the right to personal liberty, would Jose all
their meaning are the true justifications for the Jaws of preventive G
detention. The pressures of the day in regard to the imperatives of the
security of the State and of public-order might, it is true, require the
sacrifice of the personal-liberty of individuals. Laws that provide for
preventive detention posit that an individual's conduct prejudicial to 1
the maintenance of public-order or to the security of State provides
grounds for a satisfaction for a reasonable prognostication of a possi- H
    976        SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

    ble future manifestations of similar propensities on the part of the
A
    offender. This jurisdiction has been called a jurisdiction of suspicion;
    but the compulsions of the very preservation of the values of freedom,
    of democratic society and of social order might compel a curtailment
    of individual liberty. "To lose our country by a scrupulous adherence
    to the written law" said Thomas Jeferrson "would be to lose the law
B   itself, with life, liberty and all those who are enjoying with us; thus
    absurdly sacrificing the end to the needs." This is, no doubt, the
    theoretical justification for the law enabling preventive detention.

          But the actual manner of administration of the law of preventive
    detention is of utmost importance. The law has to be justified by the
    genius of its administration so as to strike the right balance between
    individual-liberty on the one hand and the needs of an orderly society
    on the other. But the realities of executive excesses in the actual en-
    forcement of the law have put the courts on the alert, ever-ready to
    intervene and confine the power within strict limits of the law both
    substantive and procedural. The paradigms and value judgments of the
D   maintenance of a right balance are not static but vary according as the
    "pressures of the day" and according as the intensity of the impera-
    tives that justify both the need for and the extent of the curtailment of
    individual liberty. Adjustments and readjustments are constantly to be
    made and reviewed. No law is an end in itself. The "inn that shelters for
    the night is not journey's end and the law, like the traveller, must be
R   ready for the morrow."

          As to the approach to such laws which deprive personal liberty
    without trial, the libertarian judicial faith has made its choice between
    the pragmatic view and the idealistic or doctrinaire view. The
    approach to the curtailment of personal liberty which is an axiom of
F   democratic faith and of all civilised like is an idealistic one for, loss or
    personal liberty deprives a man 9f all that is worth living for and builds
    up deep resentments. Liberty belongs what correspond to man's
    inmost self. Of this idealistic view in the judicial traditions of the
    free-world, Justice Dougla said:

                "Faith in America is faith in her free institutions or it is
                nothing. The Constitulion we adopted launched a daring
                and bold experiment. Under that compact we agreed to
                tolerate even ideas we despise. We also agreed never to
                prosecute people merely for their ideas or beliefs .... "

                [See·: On Misconception of the Judicial Function and the
               AYYA v. STATE OF U.P. [VENKATACHALIAH, J.]                977

                Responsibility of the Bar, Columbia Law Review, Vol. 59,
                                                                               A
                p. 232]
          Judge Stanley H. Fuld of the New York Court of Appeals said:
               "It is a delusion to think that the nation's security is
               advanced by the sacrifice of the individual's basic-liberty.
               The fears and doubts of the moment may loom large, but          B
               we lose more than we gain if we counter with a resort to
               alian procedures or with a denial of essential constitutional
               guarantees.''

               [Quoted by Justice Douglas at p. 233-0n Misconception
               of the Judicial Function and the Responsibility of the Bar;
               Columbia Law Review Vol. 59]                                    c


.
    It was a part of the American judicial faith that the Constitution and
    Nation are one and that it was not possible to believe that national
    security did require what the Constitution appeared to condemn .
                                                                             D
           Under our Constitution also the mandate is clear and the envoy
    is left under no dilemma. The constitutional philosophy of personal
    liberty is an idealistic view, the curtailment of liberty for reasons of
    State's security, public-order, disruption of national economic disci-
    pline etc. being envisaged as a necessary evil to be administered under
    strict Constitutional restrictions.                                      E

         In Ichudevi v. Union of India, AIR 1980 SC 1983, Bhagwati J.
    spoke of this Judicial commitment.

                 .... The court has always regarded personal liberty as the
                most precious possession of mankind and refused to tolerate F
               .;!legal detention, regardless of the social cost involved in the
                release of a possible renegade."
                                                                    (page 1988)
                                                          (Emphasis Supplied)

               "This is an area where the court has been most strict and G
               scrupulous in ensuring observance with the requirements of
               the law, and even where a requirement of the law is breached
               in the slightest measure, the court has not hesitated to strike
               down the order of detention .... "
                                                                    (p. 1988)
                                                       (Emphasis Supplied) H
    978        SUPREME COURT REPORTS                 (1988] Supp. 3 S.C.R.

A        In Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334 Ju: tice
    Chinnappa Reddy J. in his concurring majority view said:

               " ..... I do not agree with the view that those who are
               responsible for the national security or for the maintenance
               of public order must be the sole judges of what the national
B
               security or public order requires. It is too perilous a pro-
               position. Our Constitution does not give a carte blanche to
               any organ of the State to be the sole arbiter in such matters
                    ,,
                                                                    (p. 1336)

c              " .... There are two sentinels, one at either end. The legis-
               lature is required to make the law circumscribing the limits
               within which persons may be preventively detained and



D
               providing for the safeguards prescribed by the Constitution
               and the courts are required to examine, when demanded,
               whether there has been any excessive detention, that is,
                                                                                 ..
               whether the limits set by the Constitution and the legisla-
               ture have been transgressed ... "
                                                                    (P. 1336)

         In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766, it was
    observed:
E
                "It is not permissible in matters relating to the personal
                liberty and freedom of a citizen to take either a liberal or a
                generous view of the lapses on the part of the officers
                         ,,

F
           10. There are well recognised objective and judicial tests of the
    subjective satisfaction for preventive detention. Amongst other things,
    the material considered by the detaining-authority in reaching tbe
    satisfaction must be susceptible of the satisfaction botb in law and in
    logic. The tests are tbe usual administrative law tests where power is
    couched in subjective language. There is, of course, the requisite
G
    emphasis in the context of personal liberty. Indeed the purpose of
    public-law and the public law courts is to discipline power and strike at
    the illegality and unfairness of Government wherever it is found. The
    sufficiency of the evidentiary material or tbe degree of probative
    criteria for the satisfaction for detention is of course in the domain of
H   the detaining-authority.
            AYYA v. STATE OF U.P. [VENKATACHALIAH, J.)                979

       To lose sight of the real and clear distinction between the          A
"public-order" and "law and order" might lead, in the process of
obliteration of their outlines, to the impermissible engrafting of the
latter on the former.

       11. In the present case, we are not, however, impressed with the
submission of Shri Garg that the detention was solely for the purpose       B
of rendering nugatory the order of bail, the grant of which the
detaining-authority had then considered quite imminent. It is true that
if the only ground or justification for the detention is the apprehension
that the detenu was likely to be enlarged on bail, the detention might
be rendered infirm. Sri Garg relied upon the following observations in
Ramesh Yadav's case (sµpra):
                                                                            c
           "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 carry on his criminal activities in the area. If D
           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 undertrial prisoner was likely to get bail an
           order of detention under the National Security Act should E
           not ordinarily be passed ..... " [AIR 1986 SC 315 at 316]

But, where, as here, there are other grounds, the reference by the
detaining authority to the prospects of grant of bail could be no more
than an emphasis on the imminence of the recurrence of the offensive
activities of the detenu. Even a single instance of activity tending to F
harm "public-order" might, in the circumstances of its commission,
reasonably supply justification for the satisfaction as to a legitimate
apprehension of a future repetition of similar activity to the detriment
of "public-order". Likewise, without merit, is the contention as to
the impermissibility of an order of detention being made against a
person already in judicial custody. Even if a prosecution against a G
person fails or bail is granted an order of detention could be passed
drawing the satisfaction therefor from the facts and circumstances
involved in· the criminal proceedings. An otfender might secure an.
acquittal by intimidating witnesses. It all depends upon the circum-
stances of each case. But it is necessary for the detaining authority to
resist the temptation to prefer and substitute, as a matter of course, H
    98lJ       SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A   the easy expedience of a preventive detention to the more cumber-
    some one of punitive detention. In Vijay Narain Singh's case (supra)
    this Court said:

               " ..... It is well settled that the law of preventive detention
               is a hard law and therefore it should be strictly construed.
B              Care should be taken that the liberty of a person is not
               jeopardised unless his case falls squarely within the four
               corners of the relevant law. The law of preventive deten-
               tion should not be used merely to clip the wings of an
               accused who is involved in a criminal prosecution ... "
                                                                      (P. 1345)

c              " ..... When a person is enlarged on bail by a competent
               criminal court, great caution should be exercised in scrutinis-
               ing the validity of an order of preventive detention which is
               based on the very same charge which is to be tried by the
                                                                                  •
               criminal court." (P. 1345)
D
           12. However, we are persuaded to the view that the contention
    of Shri Garg that, the first two grounds which pertain to the commis-
    sion of non-cognizable offences have no rational nexus relatable to the
    maintenance of public order is to be accepted. It is true that the acts
    themselves, in relation to their effect on public-order, which might
E   otherwise be free from the vice of affecting public-order might assume
    a sinister colour and significance from the circumstances under and the
    manner in which they are done. What might be an otherwise simple
    "law and order" situation might assume the gravity and mischief of a
    "public-order" problem by reason alone of the manner or circum-
    stances in which or the place at which it is carried-out. These are
F   graphically dealt with by Hidayatullah, J. in Ram Manohar Lohia v.
    State of Bihar, AIR 1966 SC 740. In the present case the alleged
    attacks were directed against the same individual, a certain Anil
    Gautam, and, even according to the police, they constituted merely
    offences of a non-cognizable nature. In the facts of the case, it is
    difficult to impart to these acts, which were liable to be dealt with
G   under the ordinary laws of the land, a "public-order" dimension within
    the meaning of and for purposes of the extra-ordinary law of preven-
    tive detention.

          13. So far as the third ground is concerned it is no doubt a
    serious charge. The victim is the same Anil Gautam. The Sessions
H   Court has since enlarged the petitioner on bail. It is alleged that the
            AYYA v. STATE OF U.P. IVENKATACHALIAH, J.J               981

attack, in the manner in which it was made, spread tremors of fear in
the neighbourhood and the shop-keeper in the vicinity pulled down
                                                                            A
their shutters.

       On the contrary, Petitioner avers that he had been taken into
custody earlier at 8.00 P.M. and his alleged presence at the scene of
occurance, which admittedly took place at 9.10 P.M., was wholly             B
imaginary and concocted. The police version is that the arrest was
made only at 10.00 A.M. the next-day. These matters are to be
decided at the sessions-trial. We cannot decide them here. It is not also
necessary to go into the controversy about the wireless message or the
genuineness of the "Log-Book" recording the message. The Inspector
General of Police, Meerut Zone and the Home Secretary have stated
in their affidavits that the extant practice is to keep the "Log-book" in   c
the form of loose sheets stapled together. The practice might J)erhaps
required improvement; but it is not necessary to say that the sheets
produced are not genuine. Learned Sessions Judge at the time of gran
of bail did not, however, accept them as the original "Log-book".
                                                                            D
      It is equally unnecessary to decide whether the telegram
despatched by Mirazuddin was at 12.30 mid-night on 18.2.1988 or as
suggested by the Respondents at 12.30 noon on 19.2.1988. It is
extremely probable that it was sent not at 12.30 mid night as claimed
by the petitioner, but only at 12.30 noon on 19.2.1988 as suggested by
Sri Yogeshwar Prasad. But it cannot be disputed that such a telegram        E
was sent. This telegram asserts, for whatever it was worth, that
petitioner was taken into custody at 8.00 P.M. on 18.2.1988. The con-
tention of Shri Garg is that the non-consideration of this telegram,
which had a bearing on the complicity or otherwise of the petitioner in
the alleged offence vitiates the detention for non-application of mind.
The detaining authority in its affidavit says:                              F

           " ..... Deponent is not in a position to say about the facts
           of the telegram. It might have been given in pesh-bandi."

      What weight the contents and assertions in the telegram should
carry is an altogether a different matter. It is not disputed that the      G
telegram was not placed before and considered by the detaining-
authority. There would be vitiation of the detention on grounds of
non-application of mind if a piece of evidence, which was relevant
though not binding, had not been considered at all. If a piece of evi-
dence which might reasonably have affected the decision whether or
not to pass an order of detention is excluded from consideration, there     H
    982         SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

A would be a failure of application of mind which, in turn, vitiates the
     detention. The detaining-authority might very well have come to the
    ·same conclusion after considering this material; but in the facts of the
     case the omission to consider the material assumes materiality.
          '
           14. In the result, for the foregoing reasons, the writ petition is
B
    allowed, the order of detention impugned in the petition quashed and
    the petitioner is directed to be set at liberty forthwith, unless he is held
    in custody pursuant to any other order under any lawful authority. No
    costs.

     R.S.S.                                                   Petition allowed.