Holding

The order of detention under Section 3(2) of the National Security Act was illegal and invalid because the detaining authority failed to satisfy the statutory and constitutional requirements, particularly the need for specific grounds and a genuine subjective satisfaction, given that the appellant was already in custody.

Summary

Gulab Mehra, an under‑trial prisoner, was served with a detention order under Section 3(2) of the National Security Act while already in jail. He challenged the order on grounds that the detention grounds were vague, the detaining authority had not applied its mind, and that a preventive detention cannot be validly made against a person already in judicial custody without a real likelihood of release. The Supreme Court examined the statutory requirements of the Act, the constitutional guarantee of specific grounds under Article 22(5), and the jurisprudence on public order versus law and order. It found that the grounds lacked particulars, the District Magistrate had not demonstrated subjective satisfaction considering the appellant’s custody, and the police affidavit indicated undue influence. Consequently, the Court held the detention order illegal and set aside the High Court’s decision.

Issues considered

The validity of a preventive detention order under Section 3(2) of the National Security Act when the detainee is already in judicial custody.
Whether the grounds of detention complied with the constitutional requirement of specificity under Article 22(5).
Whether the detaining authority satisfied the requirement of subjective satisfaction, especially in view of the appellant’s existing imprisonment and lack of likelihood of release.
Whether vague and unspecific grounds render a detention order invalid.
Whether pending criminal prosecutions preclude the issuance of a preventive detention order.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Indian Explosives Acts. 4, s. 5
Indian Penal Code, 1860s. 307, s. 323, s. 426, s. 504, s. 506
National Security Act, 1980s. 3(2)
U.P. Gangsters and Anti‑Social Activities Act, 1986s. 2, s. 3

Subjects

National Security Actpreventive detentionArticle 22(5)subjective satisfactionvague groundsunder‑trial prisonerpublic orderdetaining authoritybailcriminal procedure

Judgment

A GULAB MEHRA
v.
STATE OF U.P. & ORS.

SEPTEMBER 15, 1987.

B' [A.P. SEN AND B.C. RAY, JJ.]

National Security Act, 1980-0rder of detention under section
3(2) of-Challenged.

The appellant was in jail on October 10, 1986, as an under-trial "
prisoner, when an order of detention issued in respect of him by the
c District Magistrate, respondent No. 2, under section 3(2) of the
National Security Act, 1980 was clamped on him, and on the same day,
the grounds of detention were served on him. The appellant made a
representation against the grounds of detention before the authorities
concerned, but the same was rejected and the order of detention, con-
D firmed. He then challenged the order of detention, as illegal and bad by
a Habeas <;_orpus Writ Petition before the High Court on various
grounds, including the ground that the grounds of detention were abso-
lutely vague and there was complete non-application of mind by the
detaining authority in coming to the subjective satisfaction, and that the
order of detention passed on him while he was in custody was wholly
E arbitrary and unwarranted. The High Court dismissed the Writ Peti-
tion, holding that the order of detention passed while the appellant was
in jail could not be held .to be illegal. The appellant moved this Court by
special leave for relief against the judgment and order of the High
Court.

F Allowing the Appeal, the Court,

HELD: The order of detention was passed by the respondent No.
2. District Magistrate, on the basis of two Criminal Cases in respect of
two incidents which had occurred on October 2 and 3, 1986. So far as
the case being G.D. No. 38 was concerned, the report of this incident
G was made by the picket employed at police station, Kydganj. It
appeared from this report that there were no particulars about the
shopkeepers who had been terrorised and threatened for payment of
money, as alleged in the grounds of detention, nor were mentioned at all }
the names of any of the witnesses in whose presence the threat or terror
was used and money was demanded. The report was absolutely vague
H and it was not possible for the detenu to give an effective representation
126
GULAB MEHRA v. STATE OF U.P. 127

against the ground, which is one of the Constitutional requirements A
enjoined in Article 22(5) of the Constitution of India. The second
ground, which led to crime case No. 248/86 under section 307, l.P.C.,
and crime case no. 249/86 under section 4/5 of the Explosives Act and
which occurred on Octobe~ 3, 1986, registered on the complaint of
Sub/Inspector Yatendra Singh through special court, Allahabad, also
did not disclose any particulars as to the shop-keepers in whose pre· B
sence the bombs alleged were thrown by the appellant, and who were
terrified and panic-stricken, etc., nor were mentioned the names of any
witnesses in respect of the said incident. [133F, 134A·D I

The question whether a man has only committed a breach of law
and order or has acted in a manner likely to cause a disturbance of the c
public order, is a question of degree and the extent of the reach of the
act upon the Society, as held by this Court in Kanu Biswas v. State of
West Bengal, [1972] 3 S.C.C. 831, while determining the meaning of
'public order'. Public order is what the French Call "Order Publique"
and is something more than ordinary maintenance of law and order.
From the observations of this Court made in many cases, it is evident D
that whether an act amounts to a breach of law and order or a breach of
public order, solely depends upon its extent and reach to the society. If
the act is restricted to particular individuals or a group of individuals, it
breaches the law and order problem, but if the effect and reach and
potentiality of the act are so deep as to affect the community at large
and/or the even tempo of the community, then, it becomes a breach of E
the public order. An act, which may not at all be objected to in certain
situations is capable of totally disturbing the public tranquillity. When
communal tension is high, an indiscreet act of no significance is likely to
disturb or dislocate the even tempo of the life of the community. An
order of detention made in such a situation has to take note of the
potentiality of the act objected to. Thus, whether an act relates to law F
and order or the public order depends upon the impact of the act on the
\. life of the community, or, in other words, the reach and effect and
potentiality of the act, if so put as to disturb or dislocate the even tempo
of the life of the community, it will be an act which will affect the public
order. [134D·E, 137A·B, 138B-D]
G
In this case, so far as the first incident which occurred on
2.10.1986 was concerned,, the ground was vague inasmuch as the names
of the witnesses in whose presence the threat was given and the incident
occurred, had not been mentioned. As regards the second incident
which occurred on 3.10.1986, the Crime Case No. 248/86 under section
307, 1.P.C. and the Crime Case No. 249/86 under section 4/S of the H
Explosive Act, were pending trial. [138E-F]
128 SUPREME COURT REPORTS [1988) 1 S.C.R.

A A case crime No. 200 of 1985 under sections 323/504/506/426, -t
l.P.C., read with section 2/3 of the U.P. Gangsters and Anti-Social
Activities Act No. 4 of 1986 was registered against the appellant by the
police. That case was challenged by an application under section 482
Cr,P.C. in the High Court. The said application was admitted on
2.6.1986 and had been pending. The High Court had, while admitting
B the case, granted stay of arrest of the appellant. The appellant had been
taken into custody and was in jail as an undertrial prisoner on October
10, 1986, when the impugned order of detention was clamped upon "(
him. The appellant stated in this Appeal that till date he had not applied
for bail in case crime No. 248/86 and case crime No. 249/86 as well as
the case registered in report No. 38 dated October 2, 1986 at the police ~
station Kydganj. The question was whether there was a possibility of
C the detaining authority to be satisfied that the appellant was likely to
indulge in activities prejudicial to the maintenaDce of public order as
there was no likelihood of his being released from the jail custody '
immediately. There was nothing in the case to show that in considera-
tion of his previous conduct and acts, there was a likelihood of the appellant's
D indulging in activities prejudicial to the maintenance of public order if he
was set free and/or released from custody. [138F-H, 139A-B, 140B-C)

The detaining authority District Magistrate-respondent No. 2,
had not filed an affidavit stating whether he had taken into considera-
tion the fact that the appellant had already been in the judicial custody
E and on considering his past activities he had been subjectively satisfied
that if set free or released from jail custody on bail, there was a likeli-
hood of his indulging in criminal activities endangering public order.
On the other hand, the Station Officer of Kydganj police station, had
filed a counter stating that the District Magistrate had passed the
impugned detention order when the appellant was already in jail, on the
F apprehension that the appellant was likely to be released on bail in the
near future and if he was bailed out, the public order would become t
worse. This clearly showed that the police officer had arrogated to
himself the knowledge about the subjective satisfaction of the District
Magistrate on whom the power is conferred by the Act. The affidavit
filed by the station officer of police implied that he had access to the file
G of the District Magistrate or he influenced the decision of the District
Magistrate for making the detention order. There was nothing to show
that there was awareness in the mind of the District Magistrate, the
detaining authority, of the fact that the appellant was in jail at the time
of the clamping of the order of detention, and the detaining authority
was satisfied, in considering his antecedents, that there was a likelihood
H of his indulging in criminal activities, jeopardising public order if he
GULAB MEHRA v. STATE OF U.P. 129

was released on bail and that there was every likelihood of his being A
t enlarged on bail within a short time. On this ground alone, the deten-
tion order was invalid. It might be said in this connection that the
respondents could very weU oppose the bail application when it came up for
hearing, and if at all the appellant was released on bail, the respondents
were not without a remedy. They could tile an application for cancella- B
tion of the bail. In the circumstances, it could not but be held that the
passing of the order of detention of the appellant who was already in
custody was fully bad and invalid in law. The respondents could very
r well proceed with the criminal case under section 307, I.P.C., and get
the appellant punished if the case was proved beyond doubt against
him. The police officers, who witnessed the hurling of the bombs and
the Sub-Inspector of police who recorded the F.I.R., could come C
forward to give evidence. In the circumstances, the open statement in
the affidavit of the Sub-Inspector that the witnesses were afraid of
disclosing their names and giving evidence, was wholly incredulous and
could not be accepted. [141G-H, 142A-G, 143G-144A)

The clamping of the order of detention was not in accordance with D
the provisions of the Act. The history-sheet did not at all link to the
proximity of the two incidents on the basis of which the detention order
had been passed. [144C-D]

The impugned order of detention was illegal and invalid. [144G]
E
Kanu Biswas v. State of West Bengal, (1972] 3 S.C.C. 831;
Haradhan Saha v. The State of West Bengal and Anr. (1975] 3 S.C.C.
198; Kanchanlal Maneklal Chokshi v. State of Gujarat & Ors., (1979] 4
S.C.C. 14; Dr. Ram Manohar Lohia v. State of Bihar & Ors., (1966] l
S.C.R. 709; Arun Ghosh v. State of West Bengal, (1970] 3 S.C.R. 283; F
Nagendra Nath Monda/ v. State of West Bengal, (1972] l S.C.C. 498;
Nand Lal Roy alias Nanda Du/al Roy v. State of West Bengal, (1972]
2 S.C.C. 524; S.K. Kedar v. State of West Bengal, (1972] 2 S.C.C. 816;
Ashok Kumar v. Delhi Administration, (1982) 2 S.C.C. 403; State of
U.P. v. Hari Shankar Tewari, (1987) 2 S.C.C 490; Masood Alam v.
Union of India, A.I.R. 1973 S.C. 897; Rameshwar Shaw v. District
Magistrate Burdwan & Anr., (1964] 4 S.C.R. 921; Merugn G
Satyanarayana, etc. v. State of Andhra Pradesh & Ors., (1983] l S.C.R.
635; Ramesh Yadav v. District Magistrate, Etah and others, A.I.R.
1986 S.C. 315; Abdul Gaffer v. State of West Bengal, A.f.R. 1975 S.C.
1496 and Sudhir Kumar Saha v. Commissioner of Police, Calcutta,
[1970] 3 S.C.k. 360, referred to.
H
130 SUPREME COURT REPORTS [1988] 1 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal -1
No. 450 of 1987.

From the Judgment and Order dated 26.3.1987 of the Allahabad
High Court in Habeas Corpus Petition No. 17849 of 1986.

B D.K. Garg for the Appellant.

Dalveer Bhandari for the Respondents.

The Judgment of the Court was delivered by

B.C. RAY, J. Special leave granted. Arguments heard.
c
This appeal by special leave is directed against the judgment and
order of the High Court of Allahabad dated 26th March, 1987 in
Habeas Corpus Petition No. 17849 of 1986 dismissing the writ petition
and confirming the order of detention passed against the appellant by
0 the District Magistrate, Allahabad.

The respondent No. 2, District Magistrate, Allahabad clamped
upon the appellant an order of detention under section 3(2) of the
National Security Act, 1980 and the appellant was detained at Central
Jail, Naini on October 10, 1986. On the same day the grounds of
E detention were served on the appellant. Two grounds of detention >-
mentioned in the grounds of detention are stated hereinbelow:-

( 1) That the appellant on 2.10.1986 threatened the shopkeepers
of Khalasi Line locality in order to extort money and was
saying that appellant could not come for the last auction
F because the police were present on that occasion and that the ,
shopkeepers had not given the appellant the money received .),
in the above auction. Further that the shopkeepers should _
collect money and give it to the appellant or else the appel-
lant would shoot all of them. As a result of this the place was
terror-stricken and the shops and houses closed down. A
G report of this incident was made by the picket employed at
police station Kydganj, i.e. report No. 38 time 20.10 dated
2.10.86. This was investigated by Dev Shankar, S.I. of police
station Kydganj and the details written in report No. 2 time
00.30 dated 3.10.86 in the general diary as Case crime
No. 248/86, Section 3071.P.C. and case crime No.249/86,
H Section 4/5 Explosiv~s Act, Police Station, Kydganj,
Allahabad.
GULAB MEHRA v. STATE OF U.P. [RAY, J.] 131

(2) On 3.10.1986, the appellant armed with illegal bombs went A
towards Uttam Talkies, Kydganj, Allahabad with the inten-
tion of committing serious offence. On information being
received, the police went to arrest the appellant. That the
appellant with the intention to kill lobbed a bomb but the
police party escaped it by a hair's breadth and the bomb
exploded. As a result of this· there was a stampede in the B
public, the doors and windows of the houses and shops
closed down, the traffic stopped and the people were terror-
r stricken. The po!ice arrested appellant on the spot and re-
covered 3 illegal bombs from the appellant.

The appellant has also been supplied with a copy of a confiden- C
tial letter written by the Superintendent of Police, Allahabad to
District Magistrate, Allahabad dated 9.10.1986. The said letter was
written by the Superintendent of Police on the recommendation of the
Station Officer, Kydganj, Allahabad on 5.10.1986. The appellant has
also been supplied with the copy of the report No. 38 in which it is
alleged that the appellant threatened the shopkeepers of Khalasi Line D
in an attempt to extort money. He was also supplied with the copy of
the report which was registered as case crime No. 248 of 1986 under
section 307 I.P.C. and case crime No. 249 of 1986 under section 4/5 of
the Explosives Act. The appellant made representation against the
grounds of detention before the authorities concerned but his re-
presentation was rejected and the order of detention was confirmed. E

The appellant challenged the order of detention by a writ of
Habeas Corpus before the High Court of Allahabad on the ground
inter alia that the grounds of detention are absolutely vague and there
is complete non-application of mind by the detaining authority in com-
r ing to the subjective satisfaction, that the order of detention passed on F
\ the appelant while he was in custody is wholly arbitrary and unwar-
ranted and the two cases disclosed in the grounds of detention rela!e to
law and order problem and not to the disturbance of public order. The
criminal proceedings pending in respect of the case should not have
been by-passed by taking recourse to the order of detention of the
appellant who is already in custody and there was no likelihood nor G
any possibility of his indulging in activities prejudicial to the mainte-
nance of public order as the appellant has not made any application for
...- bail in the said case. The detention order has, therefore, been assailed
as illegal and bad and so the same is invalid in law.

The High Court after hearing the appellant, by its judgment and H
132 SUPREME COURT REPORTS [1988] 1 S.C.R.

A order dated 26th March, 1987 dismissed the writ petition No. 17849 of _,
1986 holding that the order of detention passed by the detaining
authority while the appellant was in jail could not be held to be illegal
in the facts and circumstances of the case.

Aggrieved by the said order the instant appeal by special leave
B was filed in this court.

An affidavit in counter verified by one O.P. Ojha, Station
Officer, Police Station, Kydganj, Allahabad has been filed. It has been
stated in paragraph 4(iii) of the counter affidavit that the appellant's
history starts from 1955 and he involved himself in a large number of
C criminal cases. His name in the history sheet was included by the
police. It has been further stated that out of fear the shopkeepers of
the village dare not disclose their names and the people of Khalasi
Line dare not depose against the appellant since he is a goonda of the
locality and people are afraid of him. It has been further stated that
this is the reason for non-appearance of the shopkeepers and others as
D witnesses. The first incident dated October 2, 1986 was registered in
G.D. No. 38 of the said date and the second incident which occurred
on October 3, 1986 was registered as case crime No. 368 of 1986 under
section 302/307/120-B, I.P.C. It has been further stated that these two
incidents created terror to the shopkeepers and the people of the
locality. This resulted in a great problem of public order. It has been
E stated further that after being convinced of the gravity of the situation
created by the appellant and his accomplice, the District Magistrate
after fully satisfying himself about the state of affairs, passed the order
of detention of the appellant. It has also been stated that the detention
order was passed mainly on the basis of two criminal acts committed by
the appellant on October 2 and 3, 1986. Before passing the detention
F order the District Magistrate fully satisfied himself of all the conditions
for passing a detention order under the National Security Act. It has I
also been stated that it is wrong that the allegations made in the
reports dated October 2 and 3, 1986 are false. The District Magistrate
fully satisfied himself after perusing all the records before he passed
the order of detention against the appellant. The cases which have
G been reported on October 2 and 3, 1986 are pending trial before the
Court. It has also been stated that the order of detention was passed by
the District Magistrate on the basis of the information gathered by him
from the reports submitted by the police. It has also been stated that
the appellant has already applied for bail in crime case No. 248/86
under section 307 I.P.C. and crime case No. 249/86 under section 4/5
H of Explosives Act. Notices of bail applications in connection with these
GULAB MEHRA v. STATE OF U.P. [RAY, J.) 133

two cases were served on the State Government prior to the passing of A
the detention order by the District Magistrate. The District Magistrate
passed the detention order dated October 10, 1986 when the appellant
was already in jail on the apprehension that the appellant is likely to be
released on bail in the near future and that if the appellant is bailed
out, the public order problem will become worse. The detention order
was passed with the object of preventing the appellant from acting in a B
manner prejudicial to the maintenance of public order. Hence the
detention order is legal in all respects. The history sheet of crime cases
against the appellant has been annexed to the said affidavit.

Before proceeding to consider the case on merits it is relevant to
quote the provisions of Section 3 sub-section (2) of National security C
Act, 1980.

Sec. 3(2) : The Central Government or the State Government may, if'
satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to
the security of the State or from acting in any manner D
prejudicial to the maintenance of public order or from
acting in any manner prejudicial to the maintenance of
supplies and services essential to the community it is
necessary so to do, make an order directing that such
person be detained.
E
On a plain reading of Section 3(2) of the said Act it becomes
clear that the Central Government or the State Government or the
District Magistrate authorised by the State Government in writing may
pass an order of detention against a person on being satisfied that with
a view to preventing him from acting in any manner prejudicial to the
maintenance of public order, it is necessary to make an order directing F
that suh person be detained.

In the instant case the order of detention has been made by
respondent No. 2, District Magistrate, on the basis of two criminal
cases in respect of two incidents which occurred on October 2 and 3,
1986. So far as the case being G.D. No. 38 is concerned, allegation was G
that the appellant was threatening the traders of Khalasi Line who
participated in the auction at the fort and he was saying that he could
not collect money from them on the last occasion because the police
were posted there but in case they did not collect money and give it to
him he would shoot all of them. Because of this terror the shopkeeprs
closed the doors and windows of their shops and houses. The report of H
134 SUPREME COURT REPORTS (1988) I S.C.R.

A this incident was made by the picket employed at police station,
Kydganj. It appears from this report that there are no particulars
about the shopkeepers who have been terrorised and threatened for
payment of money nor the names of any of the witnesses in whose
presence the threat or terror was given and money was demanded, are
mentioned at all. The report is absolutely vague and it is not possible
B for the detenu to give an effective representation against the aforesaid
ground which is one of the constitutional requirement enjoined in
Article 22(5) of the Constitution of India. The second ground which
leads to crime case No. 248/86 under section 307 I.P.C. and case crime
No. 249 under section 4/5 of Explosives Act and which occurred on
October 3, 1986 at about 10 A.M. on the complaint of Sub-Inspector
C Yatendra Singh through special court, Allahabad also does not disc·
lose any particulars as to the shopkeepers in whose presene the alleged
bombs were thrown by the appellant and his associate and who were
terrified and panic-stricken and put down their shutters, nor the names
of any of the witnesses have been mentiond in respect of the said
incident.
1
D
The meaning of the word 'public order' has been determined by
this Court in the case of Kanu Biswas v. State of West Bengal. (1972] 3
SSC 831. In this case it has been held that the question whether a man
has only committed a breach of Jaw and order or has acted in a manner
likely to cause a disturbance of the public order is a question of degree .,
E and the extent of the reach of the act upon the society. Public order is '
what the French call "order publique" and is something more than
ordinary maintenance of law and order.

In the case of Haradhan Saha v. The State of West Bengal and
Others, [ 1975) 3 SCC 198 this Court has observed that the following
F principles emerge from the judicial decisions:-

First: merely because a detenu is liable to be tried in a criminal
court for the commission of a criminal offence or to be pro-
ceeded against for preventing him from committing offences
dealt with in Chapter VIII of the Code of Criminal Procedure
G would not by itself debar the Government from taking action
for his detention under the Act.

Second: the fact that the Police arrests a person and later on enlarges )
him on bail and initiates steps to prosecute him under the
Code of Criminal Procedure and even lodges a first informa-
H tion report may be no bar against the District Magistrate
issuing an order under the preventive detention.
GULAB MEHRA v. STATE OF U.P. (RAY, J.J 135

Third: where the concerned person is actually in jail custody at. the A
time when an order of detention is passed against him and is
not likely to be released for a fair length of time, it may be
possible to contend that there could be no satisfaction on the
part of the detaining authority as to the likelihood of such a
person indulging in activities which would jeopardise the
security of the State or the public order. B

Fourth: the mere circumstance that a detention order is passed dur-
ing the pendency of the prosecution will not violate the order.

Fifth: the order of detention is a precautionary measure. It is based
on a reasonable prognosis of the future behaviour of a person
based on. his part conduct in the light of the surrounding
c
circumstances.

This has been followed in Kanchanlal Meneklal ChokShi v. Stale
of Gujarat and Others, [ 1979) 4 SCC 14 wherein it has been observed
that: D

"The ordinary criminal process is not to be circumvented
or short circuited by ready resort to preventive detention.
But, the possibility of launching a criminal prosecution is
not an absolute bar to an order of preventive detention.
Nor is it correct to say that if such possibility is not present E
to the mind of the detaining authority the order of deten-
tion is necessarily bad. However, the failure of the detaining
authority to consider the- possibility of launching a criminal
.. prosecution may, in the circumstances of a case, lead to the
conclusion that the detaining aµthority had not applied its
mind to the vital question whether it was necessary to make F
an order of preventive detention. Where an express allega-
tion is made that the order of detention was issued in a
mechanical fashion without keeping present to its mind the
question whether it was necessary to make such a.n order
when an ordinary criminal prosecution could well serve the
purpose, the detaining authority must satisfy the Court that G
question too was borne in mind before the order of deten-
tion was made. If the detaining authority fails to satisfy the
Court that the detaining authority so bore the question in
mind the Court would be justified in drawing the inference
that there was no application of the mind by the detaining
authority to the vital question whether it was necessacy to H
preventively detain the detenu."
136 SUPREME COURT REPORTS [1988] 1 S.C.R.

In the case of Dr. Ram Manohar Lohia v. State o{ Bihar and
A
Others, [ 1966] l SCR 709 it has been observed by this Court that: ·"111
"The contravention of law always affects order but before
it can be said to affect public order, it must affect the com-
munity or the public at large. There are three concepts
B according to the learned Judge (Hidayatullah, J) i.e. "law
and order", "public order" and "security of the State ... It
has been observed that to appreciate the scope and extent
of each of them, one should imagine three concentric cir-
cles. The largest of them represented law and order, next
represented public order and the smallest represented the
security of the State. An act might affect law and order but
c not public order just as an act might affect public order but
not the security of the State ...

As observed in the case of Arun Ghosh v. State of West Bengal,
\ ' .
[ 1970] 3 SCR 288:
D
"Public order is the even tempo of the life of the commu-
nity taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished
from acts directed against individuals which do not disturb
the society to the extent of causing a general disturbance of
E public tranquility. It is the degree of disturbance and its
effect upon the life of the community in a locality which
determines whether the disturbance amounts only to a
breach of law and order. Take for instance, a man stabs
another. People may be shocked and even disturbed, but ,
the life of the community keeps moving at an even tempo,
F however much one may dislike the act. Take another case
'
of a town where there is communal tension. A man stabs a
member of the other community. This is an act of a very t
different sort. Its implications are deeper and it affects the
even tempo of life and public order is jeopardized because
the repercussions of the act embrace large sections of the
G community and incite them to make further breaches of the
law and order and to subvert the public order. An act by
itself is not determinant of its own gravity. In its quality it
may not differ from another but in its potentiality it may be .)....,
very different."

H This has been followed in the case of Nagendta Nath Monda/ v.
GUL."tll MEHRA v. STA1E OF U.P. (RAY, J.) 137

State of West Bengal, [1972] 1SCC498 and Nand Lal Roy alias Nonda A
Dula/ Roy v. State of West Bengal, [ 1972] 2 SCC 524.
Thus from these observaticms it is evident that an act whether
amounts to a breach of law and order or a breach nf public order solely
depends on its extent and reach to the society. If the act is restricted to
particular individuals or a group of individuals i.i breaches the law and B
order problem but if the effect and reach and potentiality of the act is
so deep as to affect the community at large and:or the even tempo of
the community that it becomes a breach of the public order.
In the case of S.K. Kedar v. State of West Bengal, [1972] 3 SCC
816 this Court has observed that:-
"The question whether a person has only committed a C
breach of law and order or has acted in a manner likely to
cause a disturbance of the public order is one of degree
and the extent of the reach of the act upon the society. An
act by itself is not determinative of its own gravity. In its
quality it may not differ from another but in its potentiality D
it may be very different. Similar acts in different contexts
affect differently law and order on the one hand and public
order on the other. It is always a question of degree of the
harm and its effect upon the community. Public order is the
even tempo of the life of the community taking the country
as a whole or even a specified locality. It is the degree of E
disturbance upon the life of the community which deter-
mines whether the disturbance amounts only to a breach of
the law and order." ,,
This Court has further observed in the case of Ashok Kumar v.
Delhi Administration, [ 1982] 2 SCC 403 while dealing with the distinc-
tion between 'public order' and 'law and order' to which one of us is a F
party that:-
"The true distinction between the areas of 'public order'
and 'law and order' lies not in the nature of quality of the
act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of 'faw and
G
order' and 'public order' is a fine one but this does not
mean that there can be no overlapping. Acts similar in
nature but committed in different contexts and circum-
stances might cause different reactions. In one case it might
affect specific individuals only and therefore touch the
problem oflaw and order. The· act by itself therefore is not H
determinant of its own gravity. It is the potentiality of the
138 SUPREME COURT REPORTS [1988] 1 S.C.R.

. act to disturb the even tempo of the life of the community
A
which makes it prejuaicial to the maintenance of public
\
order."

On a conspectus of all these decisions it has been observed by
this Court in the case of State of U. P. v. Hari Shankar Tewari, [ 1987] 2
8 sec 490 that conceptually there is difference between law and order
and public order but what in a given situation may be a matter covered
by law and order may really tum out to be one of public order. One
has to tum to the facts of each case to ascertain whether the matter
relates to the larger circle or the smaller circle. An act which may not
at all be objected to in certain situations is capable of totally disturbing
C the public tranquility. When communal tension is high, an indiscreet
act of no significance is likely to disturb or dislocate the even tempo of
the life of the community. An order of detention made in such a
situation has to take note of the potentiality of the act objected to. Thus
whether an act relates to law and order or to public order depends
upon the impact of the act on the life of the community or in other
D words the reach and effect and potentiality of the act if so put as to
disturb or dislocate the even tempo of the life of the community, it will
be an act which will affect public order.

In the present case so far as the first incident which occurred on
2. IO. 1986 is concerned, the ground is vague in as much as neither the
E names of the witnesses in whose presence the threat was given and the
incident occurred, have been mentioned. As regards the second inci-
dent which occurred on 3. IO. 1986, case crime No. 248 '86 under Sec-
tion 307 I.P.C. and No. 249/86 under Section 4/5 Explosives Act
respectively are pending trial.

F It is also pertinent to remember in this connection that a case
crime No. 200 of 1986 under section 323,'5041506/426 LP.C. read with
section 2 3 of the U.P. Gangsiers and Anti Social Activities Act No. 4
of 1986 by the police of the police station, Naini, a copy of which was
annexed as annexure I to this appeal, was registered against the appel-
lant. The said case was challenged by an application under section 482
G Cr. P.C. in the High Court. The said application was admitted on
2.6.1986 and it is pending as Criminal Misc. Application No. 6638 of
1986. The High Court while admitting the case had granted stay of
arrest of the appellant. Furthermore, the appellant was taken in
custody and he was in jail as an under-trial prisoner on October 10,
1986 when the impugned or.der of detention was clamped upon him by
H the detaining authority, the respondent No. 2. The appellant has
GULAB MEHRA v. STATE OF U.P. (RAY, J.) 139

stated in his appeal before this Court that till date he had not applied A
for bail in case crime No. 248 '1986 under section 307 I.P.C. and case
crime No. 249 1986 under section 4!5 of the Explosives Act as well as
as the case registered in report No. 38 dated October 2, 1986 at police
station, Kydganj. The question is whether there is possibility of the
detaining authority to be satisfied that the appellant is likely to indulge
in activities prejudicial to the maintenance of public order as there is B
no likelihood of his being released from jail custody immediately. This
specific question arose in the case of Masood Alam v. Union of India,
AIR 1973 (SC) 897 wherein it has been observed that:

"The order of detention served upon the detenu while he
was in jail is not invalid rendering the petitioner's detention
as void. There is no legal bar in serving an order of deten-
c
tion on a person who is in jail custody if he is likely to be
released soon thereafter and there is relevant material on
which the detaining authority is satisfied that if freed, the
person concerned is likely to indulge in activities prejudi-
cial to the security of the state or maintenance of public D
order.''

In the case of Rameshwar Shaw v. District Magistrate, Burdwan
& Anr., [1964] 4 SCR 921 it has been observed that:
• "The first stage in the process is to examine the material E
adduced against a person to show either from his conduct or
his antecedent history that he has been acting in a prejudi-
cial manner. If the said material appears satisfactory to the
authority, then the authority has to consider whether it is
likely that the said person would act in a prejudicial
manner in future if he is not prevented from doing so by an F
order of detention. If this question is answered against the
\ petitioner, then the detention order can be properly made.
It is obvious that before an authority can legitimately come
to the conclusion that the detention of the person is neces-
sary to prevent him from acting in a prejudicial manner,
the authority has to be satisfied that if the person is not G
detained, he would act in a prejudicial manner and that
inevitably postulates freedom of action to the said person
-at the relevant time. If a person is already in jail custody.
how can it rationally be postulated that if he is not
detained, ht would act in a prejudicial m~nner_? At the H
point of time when an order of detention is gomg to be
140 SUPREME COURT REPORTS [1988] I S.C.R.

A served on a person, it must be patent that the said person l
would act prejudicially if he is not detained and that is a \
consideration which would be absent when the authority is ~
dealing with a person already in detention, The satisfaction
that it is necessary to detain a person for the purpose of
preventing him from acting in a prejudicial manner is thus
8 the basis of the order under s. 3(!)(a), and this basis is I
clearly absent in the case of the petitioner."

In the instant case there is nothing to show that in consideration "111
of his previous conduct and acts there is a likelihood of the appellant 1
indulging in activities prejudicial to the maintenance of public order if
C he is set free andior released from custody.

It has been observed in the case of Merugu Satyanarayana etc.
etc. v. State of Andhra Pradesh and Others, [1983) I SCR 635 by this
Court that before making an order of detention in respect of a person
already confined to jail "it must be present to the mind of the detain-
0 ing authority that keeping in view the fact the person is already in
detention a preventive detention order is still necessary. The subjec-
tive satisfaction of the detaining authority must comprehend the very
fact that the person sought to be detained is already in jail or under
detention and yet a preventive detention order is a compelling neces-
sity. If the subjective satisfaction is reached without the awareness of
E this very relevant fact the detention order is likely to be vitiated. But t
as stated by this Court it will depend on the facts and circumstances of
each case. "

It has further been observed as follows:-

F "We are completely at a loss to understand how a Sub-
Inspector of Police c,an arrogate to himself the knowledge
about the subjective satisfaction of the District Magistrate
on whom the power is conferred by the Act. If the power of
preventive detention is to be conferred on an officer of the
level and standing of a Sub-Inspector of Police, we would
G not be far from a Police State. Parliament has conferred
power primarily on the Central Government and the State
Government and in some specific cases if the conditions set
out in sub-section (3) of section 3 are satisfied and the
notification is issued by the State Government to that
effect, this' extra-ordinary power of directing preventive
H detention can be exercised by such highly placed officers as
GULAB MEHRA v. STATE OF U.P. [RAY, J.] 141

District Magistrate or Commissioner of Police. In this case
A
the District Magistrare, the detaining authority has not
chosen to file his affidavit. The affidavit in opposition is
filed by a Sub-Inspector of Police. Would this imply that
Sub-Inspector of Police had access to the file of the District
Magistrate or was the Sub-Inspector the person who in-
fluenced the decision of the District Magistrate for making B
the detention order? From the very fact that the respon-
dents sought to sustain the order by filing an affidavit of
r Sub-Inspector of Police, we have serious apprehension as
to whether the District Magistrate completely abdicated his
functions in favour of the Sub-Inspector of Police."

In a recent case of Ramesh Yadav v. District Magistrate, Etah and
c
Others, AIR 1986 (SC) 315 it has been observed that:

"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 D
criminal activities in the area. Jf 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 E
the National Security Act should not ordinarily be passed.
We are inclined to agree with counsel for the petitioner
that the order of detention in the circumstances is not sus-
tainable. and is contrary to the well settled principles indi-
cated by this Court in series of cases relating to preventive
detention. The impugned order, therefore, has to be F
quashed."
\ In the instant case the detaining authority, respondent No. 2 has
not come forward to file an affidavit stating whether he has taken into
consideration the fact that the appellant was already in judicial custody
and on considering his past activities he was subjectively satisfied that G
if set free or released from jail custody on bail, there was likelihood of
the appellant indulging in criminal activities endangering public order.
On the other hand, the Station Officer of the Police Station, Kydganj,
Shri 0.P. Ojha has filed a counter stating that the District Magistrate
passed the impugned detention order when the appellant was already
in jail on the apprehension that the appellant is likely to be released on H

I
\
142 SUPREME COURT REPORTS [1988] 1 S.C.R.

A bail in the near future and if the appellant is bailed out, the public
order problem ·will become worse. This clearly goes to show that the
Sub-Inspector has arrogated to himself the knowledge about the sub-
jective satisfaction of the District Magistrate on whom the power is
conferred by the Act. The District Magistrate, the detaining authority
in this case has not chosen to file his affidavit. The affidavit-in-
B opposition filed by the Station Officer of Police implies that he has
access to the file of the District Magistrate or he influenced the deci-
sion of the District Magistrate for making the detention order. This is
also clear from the confidential report submitted by the Senior
Superintendent of Police, Allahabad to the District Magistrate,
Allahabad as well as from the report of the Sub-Inspector of Police
annexed with the said report wherein it has been specifically stated
C that it was apprehended that the appellant, Guiab Mehra who is at
present in Naini jail and who has applied for bail, if enlarged on bail.
public order will be disturbed. There is nothing to show that there was
awareness in the mind of the District Magistrate, the detaining autho-
rity of the fact that the appellant was in jail at the time of clamping of
D the order of detention, and the detaining authority was satisfied in
considering his antecedents and previous criminal acts, that there is
likelihood of his indulging in criminal activities jeopardizing public
order if he is enlarged on bail and that there is every likelihood that the
appellant will be released on bail within a short time. On this ground
alone, the order of detention is invalid. It may also be stated in this
E connection that the respondents can very well oppose the bail applica-
tion when it comes for hearing and if at all the appellant is released on
bail the respondents are not without any remedy. They can also file

p
application in revision for cancellation of the bail application. In such
circumstances, we cannot but hold that the passing of the order of
detention of the appellant who is already in custody is fully bad and as
such the same is invalid in law. We have already said hereinbefore that
-
the respondents can very well proceed with the criminal case under
section 307 of l.P .C., execute it against the appellant and can get him
punished if the case is approved beyond doubt against the appellant. It
is pertinent to mention in this connection the case of Abdul Gaffer v.
State of West Bengal, AIR 1975 (SC) 1496 wherein the order of deten-
G tion was passed in respect of three cases registered against the
petitioner. These are as follows:-

(1) The petitioner along with his associates on 18.7.1971 being
armed with deadly weapons like daggers etc. committed thefts in t
respect of D. 0. plates from the railway yard and on being challenged,
H pelted stones causing injury to the R.P.F. party. The R.P.F. party had
'
. GULAB MEHRA v. STATE OF U.P. [RAY, J.) 143

to open fire but the petitioner and his associates fled away.
+ A
(2) On 25. 11.1971 the petitioner along with his associates being
armed with deadly weapons committed theft in respect of batteries
from empty rakes standing on the railway track. Being challenged by
the R.P.F. party the petitioner and his associates pelted stones. The
R.P.F. party fired two rounds whereby one of his associates was injured B
and arrested at the spot.

(3) On 20.2.1972, at Howrah Goods Yard near Oriapara
Quarters, the petitioner along with his associates being armed with
deadly weapons viz. bombs, iron rods etc. committed theft of wheat
bags from a wagon and on being challenged by the R.P.F. party the
c
j petitioner and his associates pelted stones and hurled bombs. As a
result of this act train services on Howrah-Burdwan line was sus-

, pended for a considerable period.

Three cases were registered in respect of these offences and
order of detention was made by the District Magistrate. The detaining D
authority, however, did not file an affidavit but his successor-in-office
in response to Rule Nisi issued by the High Court filed the counter. It
has been observed firstly that the detaining authority has not filed the
counter affidavit and the return filed in his place by his successor-in-
office does not satisfactorily explain why the prosecution of the
petitioner for the substantive offence in respect of which he was E
arrested and named in the F.I.R. was not proceeded with. According
to the counsel the so-called explanation given in the counter that the
witnesses being afraid were not coming forward to give evidence was
too ridiculous to be believed by any reasonable persorl. The Sub-
Inspector of Police who made the panchnama could certainly not be
afraid of giving evidence. The other material witnesses who could give F
evidence were the members of the R.P.F. party. It is a para police
organisation. The bald but sweeping allegation in the counter that
these witnesses were also afraid of giving evidence in court against the
petitioner is a version which is too incredulous to be swallowed even
by an ultra credulous person without straining his credulity to the
, utmost. The order of detention was therefore held invalid. G
J
i
' In the instant case the police officers who withnessed the hurling
of bombs and the Sub-Inspector of Police who recorded the F.I.R. can
come forward to give the evidence. Therefore, in such circumstances,
1 the open statement made in the affidavit of the Sub-Inspector of Police
1 that the witnesses are afraid of disclosing their names and coming H

.'
144 SUPREME COURT REPORTS (1988] 1 S.C.R.

A forward to give evidence is wholly incredulous and it cannot be 1
accepted. The prosecution of the appellant for the substantive offences
can be properly proceeded with in this case.

In the case of Sudhir Kumar Saha v. Commissioner of Police,
B Calcutta & Anr., [ 1970) 3 SCR 360 the petitioner along with his as-
sociates committed various acts of crime on three occasions. On the
first occasion he attacked the people of a locality with a knife and by
hurling bottles at them. On the other two occasions he attacked the
people of another locality, by hurling bomes at them. It was held that
the incidents were not interlinked and could not have prejudiced the
maintenance of public order.
c
On considering these decisions, we are constrained to hold that
the clamping of the order of detention is not in accordance with the
provision of the Act. Furthermore, the history-sheet does not at all
link to the proximity of the two incidents on the basis of which the
D order of detention was made. It has been vehemently urged before us
by the learned counsel appearing for the appellant that in none of the
cases mentioned in the history-sheet the appellant has been convicted
and moreover these cases related to a period much earlier than the
period in which the two cases have occurred. It has also been submit-
ted in this connection by the learned counsel for the appellant that the
appellant had not been convicted in any of the cases and the submis-
E sion of the Sub-Inspector of Police that the witnesses are afraid of
disclosing their names and coming forward to give evidence is wholly
incorrect and false in as much as witnesses in fact gave the evidence in
a criminal case which ended in acquittal. It has also been submitted by
the learned counsel that the shopkeepers of the locality where the
alleged hurling of bombs took place have made an application in this
F case that no such incident occurred on the said dates.

In the premises, aforesaid, we hold that the impugned order of
detention is illegal and invalid and we allow the appeal setting aside
the judgment and order of the High Court without any order as to
G costs.

S.L. Appeal allowed.