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PETITIONER: MRS. T. DEVAKI

       Vs.

RESPONDENT: GOVERNMENT OF TAMIL NADU AND ORS.

DATE OF JUDGMENT07/03/1990

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KANIA, M.H. KULDIP SINGH (J)

CITATION:  1990 AIR 1086            1990 SCR  (1) 836  1990 SCC  (2) 456        JT 1990 (1)   444  1990 SCALE  (1)389  CITATOR INFO :  D          1992 SC 979  (16A)

ACT:     Tamil  Nadu Prevention of Dangerous Activities of  Boot- leggers,  Drug Offenders, Forest Offenders, Immoral  Traffic Offenders and Slum Grabbers, Act, 1982.     Detention Order--Whether detaining authority required to specify period of detention--Solitary incident of  murderous assault--’Law and order’ or ’public order’ problem--Distinc- tion  between--Solitary  incident can raise only a  law  and order problem and nothing more.     Detention   Order--Subjective    satisfaction--Detaining authority himself present at the place of occurrence--Should have  relied  more on own knowledge  and  observations  than report  of  sponsoring authorityNon-application of  mind  in making the order of detention--Order quashed.

HEADNOTE:     This  petition under Article 32 of the  Constitution  of India  was filed by the wife of the detenu  challenging  the validity  of  the  Detention Order  dated  15.8.1989  passed against her husband by the Collector and District Magistrate of  Kamarajar District Virudhunagar, Tamil Nadu  on  allega- tions inter alia that the District Magistrate had issued the impugned  order  for  detention of her husband,  who  is  an active member of the All India Anna Drayida Munnetra  Kazha- gam  party,  an active social and political worker  and  ex- member of the Tamil Nadu Legislative Assembly, at the behest of Respondent No. 3---a Minister in the present DMK  Govern- ment, on account of personal and political animosity between the two.     Counsel  for the Detenu urged two grounds to attack  the order  of detention. Firstly that the order did not  specify the  period of detention, and secondly that the sole  ground of detention as reflected in the Grounds of Detention has no relevance to the maintenance of ’Public Order’ as the  facts mentioned  therein donot make out any case of  violation  of public  order.  At best, it may be a case of law  and  order only which exhibits non-application of mind by the detaining authority.

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837     Allowing  the  writ petition and quashing  the  impugned order of detention on the ground of non-application of  mind by  the Detaining Authority in passing the Detention  order, this Court,     HELD:  (1) Since the Act does not require the  detaining authority  to specify the period for which a detenu  is  re- quired to be detained the order of detention is not rendered invalid  or illegal in the absence of such specification  in the Detention order. [843E]     Commissioner of Police & Anr. v. Gurbux Anandram  Birya- ni,  [1988] Supp. SCC 568--Over-ruled. Ashok Kumar v.  Delhi Administration & Ors., [1982] 2 SCC 403, Ujagar Singh v. The State of Punjab, [1952] 3 SCR 756; Suna Ullah Butt v.  State of Jammu & Kashmir, [1973] 1 SCR 870; Suresh Bhojraj Chelani v.  State of Maharashtra, [1983] 1 SCC 382 and A.K.  Roy  v. Union of India & Ors., [1982] 1 SCC 271, approved.     (2)  In a case where the detaining authority may not  be present  at the place of the incident or the occurrence,  he has to form the requisite opinion on the basis of  materials placed before him by the sponsoring authority but where  the detaining  authority  was himself present at  the  scene  of occurrence  he should have relied more on his own  knowledge and observation then on the report of the sponsoring author- ity. [853H; 854A]     In  the  instant case, the  detaining  authority  though present  at  the scene of occurrence does  not  support  the incident  as presented to him by the  sponsoring  authority, and  yet  he  issued the detention order on  the  report  of sponsoring  authority.  In these  circumstances,  there  was nonapplication of mind by the detaining authority in  making the order of detention. [854B]     Dr.  Ram Manohar Lohia v. State of Bihar, [1966]  1  SCR 709;  Pushkar Mukher]ee & Ors. v. The State of West  Bengal, [1969]  2  SCR 635; Shyamal Chakraborty v.  Commissioner  of Police  Calcutta  & Anr., [1970] 1 SCR 762;  Arun  Ghosh  v. State of West Bengal, [1970] 3 SCR 288; Nagendra Nath Mondal v. State of West Bengal, [1972] 1 SCC 498; Sudhir Kumar Saha v. Commissioner of Police, Calcutta, [1970] 3 SCR 360;  S.K. Kedar v. State of West Bengal, [1972] 3 SCC 816; Kanu Biswas v. State of West Bengal, [1972] 3 SCC 831; Kishori Mohan  v. State of West Bengal, [1972] 3 SCC 845; Amiya Kumar Karmakar v.  State of West Bengal, [1972] 2 SCC 672 and  Manu  Bhusan Roy  Prodhan  v. State of West Bengal & Ors., [1973]  3  SCC 663, referred to. 838

JUDGMENT:     CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 468 of 1989. (Under Article 32 of the Constitution of India.)     R.K.Garg,  K.  Subramaniam, E.C. Agarwala,  Ms.  Purnima Bhatt, Mr. V.K. Pandita, A.V. Pillai and Atul Sharma for the petitioner.     K. Alagiriswamy, Adv. General of Tamil Nadu, N.  Natara- jan,  G.  Krishnamurthy, V. Krishnamurthy  and  K.  Rajendra Choudhury for the Respondents. The Judgment of the Court was delivered by     SINGH, J. This petition under Article 32 of the  Consti- tution  of  India, by Mrs. P. Devaki wife of the  detenu  R. Thamaraikani,  challenges  the  validity  of  her  husband’s detention  under  the order of the  Collector  and  District Magistrate  of Kamarajar District Virudhunagar,  Tamii  Nadu

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dated 15.8. 1989 issued under Section 3(1) of the Tamil Nadu Prevention  of Dangerous Activities of Bootleggers,  Drugof- fenders,  Forest-offenders,  Immoral Traffic  Offenders  and Slum  Grabbers  Act, 1982 (Tamii Nadu Act 14  of  1982)  (as amended  by Act 52 of 1986 and Act 1 of  1988)  (hereinafter referred to as ’the Act’).     After  heating arguments of the learned counsel for  the parties  at length, we allowed the petition on  10.11.  1989 and  issued directions for the release of the detenu  forth- with.  We  are now giving the reasons for  our  Order  dated 10.11. 1989.     The detenu R. Thamaraikani is a member of the All  India Anna  Dravida Munnetra Kazhagam Party, briefly described  as AIDMK. He has been an active social and political worker. He was  elected Member of the Tamil Nadu  Legislative  Assembly from  Srivilliputhur Constituency in the  General  Elections held  in 1977, 1980 and 1984. In the General Elections  held in  January 1989 to the Tamil Nadu Legislative Assembly,  he was  defeated by the Dravida Munnetra Kazhagam Party  candi- date. He continues to be Joint Secretary of the AIDMK  Party for  Kamrajar District in Tamil Nadu and he has been  taking active  part in social and political activities in the  Dis- trict of Kamrajar. The petitioner has stated that there  has been personal and political animosity between the detenu and Thiru Durai Murugan, Minister for Public Works and  Highways in the present DMK Government. The District 839 Magistrate  issued the impugned order for the  detention  of her husband at the behest of Thiru Durai Murugan, the afore- said Minister, respondent No. 3. The petitioner has referred to a number of incidents and to the proceedings of the Tamil Nadu Legislative Assembly in support of her submission  that there  was  political  and personal  animosity  between  the aforesaid  Minister and her husband and the order of  deten- tion  was  made mala fide at the instance of  the  Minister, respondent No. 3.     The  facts leading to the making of the impugned  deten- tion order are necessary to be noted. On 29.7.1989 a Seminar on  Irrigation was’ held at Virudhunagar at the  Dry  Chilly Merchants’  Association  Kalai Arangam,  Aruppukkotai  Road, which was attended by Thiru Durai Murugan and by Pon. Muthu- ramulingam,  Minister  of Labour  and  District  Magistrate, Kamarajan  and  other important personalities. A  number  of political and social workers and agriculturists attended the Seminar. According to the petitioner the detenu was  invited to attend the Seminar although it is denied by the  respond- ents but there is no dispute that the detenu was present  in the  hall  where the Seminar was held.  The  petitioner  has asserted  that the detenu wanted opportunity to address  the gathering  for  placing the grievances of the  local  people before  the gathering but he was not permitted to do so.  He insisted for placing the grievances of his Party before  the audience  whereupon  he  was forcibly removed  away  by  the Police  and  later  a false  criminal  case  was  registered against  him under Sections 147, 148, 307 read with  Section 149  of the Indian Penal Code and Section 27 of  the  Indian Arms  Act  at the Virudhunagar East  Police  Station.  These allegations  have been denied by the respondents.  According to the respondents the detenu was not invited, even then  he entered  the hall where seminar was being held  alongwith  a number  of persons and created disorderly scene in the  hall which  disturbed the Seminar. He threw a knife  towards  the Minister respondent No. 3, with an intention to kill him but he  missed the target, later on, he was over powered by  the Police.  The  violent activities of the detenu and  his  men

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caused panick in the hall, the audience raised alarm and ran outside the auditorium and outside the hail also people  got scared,  they  ran helter skelter,  causing  obstruction  to traffic.  The proceedings of the Seminar came to  an  abrupt halt  for a while. The detenu was taken into Custody and  he was  enlarged  on bail by the Sessions  Judge  on  3.8.1989. Thereafter the District Magistrate and Collector  Kamarajan, respondent No. 2, issued the impugned detention order  after 17 days of the aforesaid incident under Section 3(1) of  the Act, as he was satisfied that it was necessary to detain the detenu under the Act with a view to prevent him from 840 acting  in  any  manner prejudicial to  the  maintenance  of public  order. Pursuant to the aforesaid order of  the  Dis- trict Magistrate the detenu was kept in detention.     Mr.  R.K.  Garg learned counsel for the  petitioner  as- sailed  the validity of the detention order on two  grounds. Firstly,  he urged that the order of detention  was  illegal since it did not specify the period of detention.  Secondly, the sole ground of detention has no relevance to the mainte- nance of ’public order’ as the facts set out in the  grounds do  not make out any case of violation of public  order,  at best, it may be a case of law and order only.     This  petition was heard by a Division Bench  consisting of  two learned Judges of this Court. After hearing  counsel for  the  parties at length the leaned Judges  referred  the matter to a three Judges’ Bench, in view of the conflict  of decisions of this Court in Commissioner of Police & Anr.  v. Gurbux  Anandram  Biryani, [1988] Supp. SCC  568  and  Ashok Kumar v. Delhi Administration and Ors., [1982] 2 SCC 403  on the  question of validity of detention order on its  failure to specify period of detention. That is how the petition was heard by this Bench.     The  first  contention is rounded on the  provisions  of Section 3 of the Act which read as under: "3. Power to make orders detaining certain persons-- (1)  The State Government may, if satisfied with respect  to any  bootlegger  or drng-offender (or  forest  offender)  or goonda or immoral traffic offender or slum grabber that with a view to prevent him from acting in any manner  prejudicial to  the maintenance of public order, it is necessary  so  to do, make an order directing that such person be detained. (2)  If, having regard to the circumstances  prevailing,  or likely to prevail in any area within the local limits of the jurisdiction  of a District Magistrate or a Commissioner  of Police, the State government are satisfied that it is neces- sary  so to do, they may, by order in writing,  direct  that during  such period as may be specified in the  order,  such District  Magistrate or Commissioner of Police may also,  if satisfied  as  provided  in sub-section  (1),  exercise  the powers conferred by the said sub-section: 841          Provided  that  the period specified in  the  order made  by the State Government under this  sub-section  shall not,  in  the first instance, exceed three months,  but  the State  Government may, if satisfied as aforesaid that it  is necessary  so to do, amend such order to extend such  period from  time to time by any period not exceeding three  months at any one time. (3) When any order is made under this section by an  officer mentioned in sub-section (2), he shall forthwith report  the fact  to the State Government together with the  grounds  on which the order has been made and such other particulars as, in  his opinion, have a bearing on the matter, and  no  such order shall ramain in force for more than twelve days  after

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the  making  thereof, unless, in the meantime, it  has  been approved by the State Government."     Placing  reliance  on Section 3(2) Mr. Garg  urged  that since  the  impugned  detention order did  not  specify  the period for which the detenu was required to be detained, the order  was rendered illegal. On an analysis of Section 3  of the Act as quoted above, we find no merit in the submission. Section 3(1) confers power on the State Government to detain a bootlegger or drug-offender, or forest-offender or  goonda or  an offender in immoral traffic or a slum grabber with  a view to prevent him from acting in any manner prejudicial to the  maintenance of public order. Section 3(2) empowers  the State  Government to delegate its power as conferred  on  it under  sub-section (1) to District Magistrate or  a  Commis- sioner of Police, if it is satisfied that the  circumstances prevailing,  or  likely to prevail in any  area  within  the local limits of the jurisdiction of the District  Magistrate or the Commissioner of Police, make it necessary to delegate the  power  to them. It further provides that the  order  of delegation shall be in writing and it shall also specify the period  during which the District Magistrate or the  Commis- sioner  of Police, are authorised to exercise the powers  of the  State  Government under sub-section (1) of  Section  3. Proviso  to  sub-section (2) lays down that  the  delegation should not be for an unlimited period, instead it should not be  for  a period of more than three months.  If  the  State Government  is satisfied that it is necessary to extend  the period of delegation it may amend its order, extending  such period from time to time but at no time the extension  shall be  for a period of more than three months. Once  the  State Government’s  power under Section 3(1) is delegated  to  the District Magistrate or the 842 Commissioner of Police, they are authorised to exercise that power on the grounds, specified in Section 3(1) of the  Act. Neither sub-section (1) nor sub-section (2) of Section 3  of the  Act  require  the detaining authority  to  specify  the period  of detention for which a detenu is to be kept  under detention.     Section  3(3) requires that where detention is  made  by the  delegate of the State Government, namely, the  District Magistrate or the Commissioner of Police, they should report the  fact to the State Government together with the  grounds on which the order may have been made and such other partic- ulars  as, in their opinion, may have a bearing on the  mat- ter.  A  detention order made by a  District  Magistrate  or Commissioner  of Police in exercise of their  delegated  au- thority  does not remain in force for more than twelve  days after the making thereof, unless in the meantime the  deten- tion  order is approved by the State Government.  Section  8 requires  the  detaining  authority to  communicate  to  the detenu, grounds on which, the order is made within five days from  the  date of detention to enable the  detenu  to  make representation  against the order to the  State  Government. Section 10 requires the State Government to place before the Advisory Board the detention order and the grounds on  which such  order may have been made alongwith the  representation made  by  the detenu as well as the report of  the  officers made  under Section 3(3) of the Act within three weeks  from the  date of detention. Under Section 11 the Advisory  Board is  required to consider the materials placed before it  and after hearing the detenu, to submit its report to the  State Government within seven weeks from the date of detention  of the  person  concerned. In a case where the  Advisory  Board forms  opinion, that there was no sufficient cause  for  the

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detention  the State Government shall revoke  the  detention order  but if in its opinion sufficient cause was made  out, the  State  Government may confirm the detention  order  and continue  the  detention of the person  concerned  for  such period  not  exceeding the maximum period  as  specified  in Section  13  of  the Act. Section 13  provides  the  maximum period  for which a person can be detained in  pursuance  of any  detention order made and confirmed under the  Act.  Ac- cording  to this provision the maximum period  of  detention shall be twelve months from the date of detention. The State Government has, however, power to revoke detention order  at any time, it may think proper.     Provisions  of the aforesaid Sections are inbuilt  safe- guards against the delays that may be caused in  considering the representation. If the time frame, as prescribed in  the aforesaid provisions is not 843 adhered, the detention order is liable to be struck down and the detenu is entitled to freedom. Once the order of  deten- tion  is confirmed by the State Government,  maximum  period for  which  a  detenu shall be detained can  not  exceed  12 months from the date of detention. The Act nowhere  requires the detaining authority to specify the period for which  the detenu is required to be detained. The expression "the State Government are satisfied that it is necessary so to do. they may.  by order in writing direct that during such period  as may be specified  in the order" occurring in sub-section (2) of  Section 3 relates to the period for which the  order  of delegation  issued by the State Government is to  remain  in force  and it has no relevance to the period  of  detention. The  Legislature  has  taken care to entrust  the  power  of detention to the State Government, as the detention  without trial is a serious encroachment on the fundamental right  of a  citizen,  it has taken further care to  avoid  a  blanket delegation  of  power,  to subordinate  authorities  for  an indefinite  period by providing that the delegation  in  the initial  instance  will  not exceed for a  period  of  three months and it shall be specified in the order of delegation. But  if the State Government on consideration of the  situa- tion finds it necessary, it may again delegate the power  of detention to the aforesaid authorities from time to time but at no time the delegation shall be for a period of more than three months. The period as mentioned in Section 3(2) of the Act  refers to the period of delegation and it has no  rele- vance  at  all to the period for which a person may  be  de- tained. Since the Act does not require the detaining author- ity to specify the period for which a detenu is required  to be  detained, order of detention is not rendered invalid  or illegal in the absence of such specification.     Mr. R.K. Garg placed strong reliance on the decision  of this  Court in Gurbax Biryani’s case (supra) to support  his submission. In that case the detenu had been detained  under the Maharashtra Prevention of Dangerous Activities of  Slum- lords,  Bootleggers and Drug Offenders Act 55 of  1981.  The High  Court quashed the detention order on the  ground  that the  detenu had been released in criminal prosecution  under Section 8(c) read with Section 21 of the Narcotic Drugs  and Psychotropic  Substances Act, 1985 and he had been  released on  bail, but that fact had not been placed before  the  de- taining  authority.  On appeal by special leave  a  Division Bench of this Court consisting of two Judges., dismissed the appeal without going into the merits of the case on the sole ground  that  the detention order was bad as the  period  of detention  was  not specified in the  detention  order.  The Court observed as under:

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844 "The  order is bad on another ground, namely, the period  of detention has not been indicated by the detaining authority. The scheme of this Act differs from the provisions contained in  similar Acts by not prescribing a perioed  of  detention but  as Section 3 of the Act indicates, there is an  initial period  of detention which can extend upto three months  and that can be extended for periods of three months at a  time. It was open to the detaining authority to detain the  detenu even for a period of lesser duration than three  months.That necessitated  the  period of detention to be  specified  and unless that was indicated in the order, the order would also be  vitiated.  In scores of decisions this  Court  has  been emphasising  the  necessity of strict  compliance  with  the requirements  of the preventive detention law; yet  authori- ties on whom the power is conferred have not been  complying with the requirements and even if there be merit to  support the  order  of  detention, the procedural  defects  lead  to quashing thereof as a result of which the purpose of the Act if  frustrated and the suffering in the community  does  not abate." With  great respect we do not agree with the view  expressed by the learned Judges.     Section  3  of the Maharashtra Prevention  of  Dangerous Activities of Slumlords, Bootleggers and Drug-offenders Act, 198  1 is identical in terms to Section 3 of the Tamil  Nadu Act. Section 3 of Maharashtra Act does not require the State Government, District Magistrate or a Commissioner of  Police to specify period of detention in the order made by them for detaining  any person with a view to preventing  the  detenu from acting in any manner prejudicial to the maintenance  of public order. Section 3(1) which confers power on the  State Government  to make order directing detention of  a  person, does not require the State Government to specify the  period of detention. Similarly, sub-sections (2) or (3) of  Section 3 do not require the District Magistrate or the Commissioner of  Police to specify period of detention  while  exercising their powers under sub-section (1) of Section 3. The  obser- vations made in Gurbux Biryani’s case that the scheme of the Maharashtra Act was different from the provisions  contained in other similar Acts and that Section 3 of the Act  contem- plated  initial  period of detention for three months  at  a time are not correct. The scheme as contained in other  Acts providing  for the detention of a person without  trial,  is similar. In this connection we have scrutinised, the Pre- 845 ventive  Detention  Act, 1950, the Maintenance  of  Internal Security  Act,  COFEPOSA Act, National Security Act  but  in none  of these Acts the detaining authority is  required  to specify  the period of detention while making the  order  of detention against a person.     This Court has consistently taken the view that an order of detention is not rendered illegal merely because it  does not specify the period of detention. A Constitution Bench of this Court in Ujagar Singh v. The State of Punjab, [1952]  3 SCR  756 while considering validity of detention order  made under  Section 3 of the Preventive Detention Act  1950  held that non-specification of any definite period in a detention order  made  under Section 3 of the Act was not  a  material omission rendering the order invalid. In Suna Ullah Butt  v. State  of  Jammu  & Kashmir, [1973] 1 SCR  870  validity  of detention  order  made under Jammu  and  Kashmir  Preventive Detention  Act 1964 was under challenge on the  ground  that the  State Government while confirming the  detention  order under Section 12 of the Act had failed to specify the period

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of detention. The Court held that since the State Government had  power  to revoke or modify the detention order  at  any time before the completion of the maximum period  prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In Suresh Bhojraj Chela- ni v. State of Maharashtra, [1983] 1 SCC 382 while consider- ing  the validity of the detention order made under  Section 3(1) of the Conservation of Foreign Exchange and  Prevention of Smuggling Activities Act, 1974 this Court rejected  simi- lar  submission made on behalf of the detenu that  order  of detention  was  vitiated  as the Government  had  failed  to mention  the period of detention while confirming the  order of  detention. The Court held that the COFEPOSA Act did  not require  the  detaining authority to mention the  period  of detention  in  the  order of detention. When  no  period  is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.     In A.K. Roy V. Union of India & Ors., [1982] 1 SCC 271 a Constitution Bench of this Court considered the validity  of the National Security Act (65 of 1980), Chandrachud, CJ  (as he  then was) speaking for the Bench rejected the  arguments made on behalf of the petitioner that the absence of  provi- sion requiring the detaining authority to provide for  maxi- mum  period of detention was illegal. The learned C  J,  ob- served: "There is no substance in this grievance because, any law of preventive detention has to provide for the maximum 846 period of detention, just as any punitive law like the Penal Code  has to provide for the maximum sentence which  can  be imposed  for  any offence. We should have  thought  that  it would have been wrong to fix a minimum period of  detention, regardless  of the nature and seriousness of the grounds  of detention.  The fact that a person can be detained  for  the maximum period of 12 months does not place upon the  detain- ing  authority  the obligation to direct that  he  shall  be detained for the maximum period. The detaining authority can always  exercise its discretion regarding the length of  the period  of detention. It must also be mentioned that,  under the  proviso to Section 13, the appropriate  Government  has the power to revoke or modify the order of detention at  any earlier point of time." On the basis of the above observations validity of a  deten- tion  order passed under Section 3 of the National  Security Act was challenged before this Court in Ashok Kumar v. Delhi Administration  & Ors., [1982] 2 SCC 403 on the ground  that the Commissioner of Police, as well as the Administrator  of Delhi  Administration  who  confirmed  the  detention  order failed  to specify the period of detention while making  the order  of  detention. A three ’Judge’s Bench of  this  Court rejected the detention and upheld the validity of the deten- tion order. A.P. Sen, J. observed: "It  is  plain from a reading of Section 3 of the  Act  that there  is no obvious fallacy underlying the submission  that the  detaining authority had the duty to specify the  period of  detention.  It will be noticed that sub-section  (1)  of Section 3 stops with the words "make an order directing that such  person be detained", and does not go further and  pre- scribe  that the detaining authority shall also specify  the period  of detention. Otherwise, there should have been  the following  words added at the end of this  sub-section  "and shall specify the period of such detention". What is true of subsection (1) of Section 3 is also true of sub-section  (2) thereof. It is not permissible for the courts, by a  process of  judicial construction, to alter or vary the terms  of  a

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Section.  Under the scheme of the Act, the period of  deten- tion  must necessarily vary according to the  exigencies  of each  case i.e. the nature of the prejudicial activity  com- plained  of. It is not that the period of detention must  in all circumstances extended to the maximum period of 12 847 months as laid down in Section 13 of the Act."     It is thus clear that the view taken in Gurbux Biryani’s case  on the interpretation of Section 3 of the  Maharashtra Act  is  incorrect.  This Court has  while  considering  the question  of the validity of the detention order made  under different  Acts, consistently taken the view that it is  not necessary  for the detaining authority or the State  Govern- ment to specify the period of detention in the order. In the absence  of  any  period being specified in  the  order  the detenu  is  required to be under detention for  the  maximum period  prescribed under the Act, but it is always  open  to the  State  Government to modify or revoke  the  order  even before the completion of the maximum period of detention. We are,  therefore, of the opinion that the impugned  order  of detention is not rendered illegal on account of the  detain- ing  authority’s failure to specify period of  detention  in the order.     Mr.  R.K. Garg then urged that the sole ground on  which the  detention order is rounded does not relate  to  mainte- nance  of public order, and it exhibits  non-application  of mind  by  the detaining authority.  While  considering  this submission it is necessary to reproduce the detention  order as  well  as the grounds in support thereof.  The  detention order is as under: "DETENTION ORDER          WHEREAS, I, Thiru T.S. Sridhar, IAS, Collector  and District  Magistrate, Kamarajar District,  Virudhunagat,  am satisfied  with respect to the person known as Thiru  Thama- raikani  son of Ramaswamy Nader, residing at  Singammalpuram Street,  Srivilliputhur Town and Taluk that with a  view  to preventing him from acting in any manner prejudicial to  the maintenance  of  public order, it is necessary to  make  the following order.          2.  Now  therefore in exercise of the  powers  con- ferred  by  sub-section (1) of Section 3 of the  Tamil  Nadu Prevention  of  Dangerous Activities  of  Bootleggers,  Drug Offenders,  Forest Offenders, Goondas, Immoral  Traffic  Of- fenders  and Slum-Grabbers Act 1982 (Tamil Nadu  Act  14/82) read  with orders issued by the Government in G.O.  Ms.  No. 230, Prohibition and Excise Department, dated 23.3.1985  and subsequently  amended in G.O. Ms. No. 815, Home  Prohibition and Excise Department dated 13.7.1989 848 under sub-section (2) of Section 3 of the said Act, I hereby direct  that the said Thiru R. Thamaraikani son of  Ramasamy Nader be detained and kept in Central Prison, Madurai.                                       S/d   Collector    and District Magistrate, Kamarajan, District Virudhunagar." The  ground of detention supplied to the detenu stated  that the detenu was a habitual criminal, a goonda and his activi- ty  had  come to adverse notice in some cases  reference  to which was made by referring to some FIRs lodged against  the detenu at the Police Station. But the incidents referred  in those  FIRs have not been made ground for detention  instead facts  stated  in paragraphs 3, 4, 5 and 6  of  the  grounds constitute material on which the District Magistrate  formed the  requisite  opinion  under Section 3(1) of  the  Act  in making the order of detention. These are as under: "(3)  The ground on which the said detention order has  been

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made as follows:          On  29.7.1989,  the Kamarajar  District  Irrigation Seminar was held at "Dry Chilly Merchants’ Association Kalai Arangam"  at Arupoukottai Road, Viruthunagar  Town.  Hon’ble Minister for P.W.D. Thiru Durai Murugan and Hon’bIe Minister for  Labour Thiru Pon. Muthumalaingam attended  the  Seminar which was presided over by the District Collector. At  about 12.30  p.m.  while the proceedings of the Seminar  were  on, suddenly  there was a commotion in front of the dias.  Thiru Murali, Sub-Inspector of Police, Vembakottai alongwith posse of men who were on bandobust duty there, rushed up Thiru  R. Thamaraikani  inducing  his henchmen  saying  "Finish  Durai Murgan’s  chapter  today". The same time  he  (Thamaraikani) also  threw a dagger aimed at Hon’ble Minister  Thiru  Durai Murugan  shouting "Finish Durai Murgans Chapter today".  But the dagger missed the target and fell down on the stage.  At once  Thiru  R. Thamaraikani took out  a  bottle  containing petrol and a match box out of a hand bag which he carried in his  hand. Instantly Thiru Murali, Sub-Inspector of  Police, Vembakottai and the P.C. 168 Murugesan 849 pounched  and  caught  hold of Thiru  R.  Thamaraikani.  The former seized the bottle and the match box. At the  instiga- tion  of  Thiru  R. Thamaraikani, his  henchmen  viz.  Thiru Valargal  Kenna, son of Thangaraj Nader of  Kammapatti,  Na- reeswaran,  son of Smaraj Nadar of Kammapatti,  Kalipandian, son  of  Krishna  son thevar of Mall and  Nagarajan,  on  of Paramasive  Thevar  of Mangeseri who  accompanied  him  also attempted  to attack the Hon’ble Minister for  P.W.D.,  with knives  in  their hands. H.C. 829 Thiru  Subbiahm  P.C.  231 Thiru  Subbiah  and P.C. 469 Thiru Manraj duly  assisted  by some  agriculturists  surrounded and  overpowered  them  and seized their knives. Seeing the violent activities of  Thiru R.  Thamaraikani  and  his men, the gathering  in  the  hall panicked. They raised an alarm and ran outside the auditori- um  and  the crowd outside also got scared  and  ran  helter skelter,  causing obstruction to traffic along  Aruppukottai Road. The proceedings of the Seminar also came to an  abrupt halt for a while. The Sub-Inspector of Police arrested Thiru R.  Thamaraikani and his four associates at about 1300  hrs. and  brought them out with the help of the  Deputy  Superin- tendent  of Police, Virudhunagar and other Police  Officials who  were then on duty there. On seeing this about 10  other henchmen  of Thiru R. Thamaraikani who were waiting  outside the  auditorium escaped, leaving behined an  Ambassador  Car IDR  667 and a van TCM 7797. On searching the car, the  Sub- Inspector  of  Police found legal weapons viz.  1  sword,  4 koduvals  and also 4 torch sticks, the cloths of which  were doused  in  kerosene. The said two vehicles along  with  the lethal weapons, hand bag containing bottle with petrol.  Rs. 1000 match box, papers etc., were seized under an attachi at 1330 hrs. Then the Sub-Inspector of Police, handed over  the accused  persons and the properties seized under  a  special report  at  Virudhunagar  East Police station.  A  case  was registered  in Cr. No. 180/89 u/ss 147, 148, 307  read  with 149  I.P.C. and 27 Indian Arms Act at the Virudhunagar  East Police  Station.  The Inspector of Police,  Law  and  order, Virudhunagar  Rural  Circle took up  the  investigation.  On Production before the Judicial Magistrate Court No. 1, Thiru R. Thamaraikani was remanded to judicial custody in  Central Prison, Madurai on 30.7.89 and released on bail with  condi- tion to stay at Madurai on 3.8.89. The case properties  were deposited  in the Court. The case is still under  investiga- tion. 850

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(4) The offence u/s 307 IPC is punishable under Chapter  XVI of the IPC. By committing the above described grave  offence in  public,  in broad day light, Thiru R.  Thamaraikani  has created a sense of alarm, scare and a feeling of  insecurity in the minds of the public of the area and thereby acted  in a manner prejudicial to the maintenance of public order. His unlawful, disorderly and dangerous activities on 29.7.89 are prejudicial  to  the maintenance of public  order  and  have affected the even tempo of life of the community. (5)  I  am aware that Thiru R. Thamaraikani is now  on  bail with condition to stay at Madurai since 3.8.89. 1 am  satis- fied  that  his unlawful activities  warrant  his  detention under the Tamil Nadu Act No. 14 of 1982. (6) I am satisfied that on the materials mentioned above, if Thiru  R. Thamaraikani is left to remain at large.  he  will indulge  in’ further activities prejudicial to  the  mainte- nance  of  public order and further recourse to  normal  law would not have the desired effect of effectively  preventing him from indulging in activities prejudicial to the  mainte- nance  of public order and therefore I consider that  it  is necessary to detain him in custody with a view to preventing him from acting in any manner prejudicial to the maintenance of public order."     In substance the ground of detention states that while a Seminar  was  going  on the detenu incited  his  men  saying "Finish Durai Murgan’s Chapter today" and after saying  that he threw a dagger aiming at Thiru Durai Murgan, Minister but the  dagger  missed the target and fell down on  the  stage. Thereafter,  the detenu took out a bottle containing  petrol and  a  matchbox out of a hand bag which he carried  in  his hand. Meanwhile, the Sub-Inspector of Police, caught hold of the  detenu. seized the bottle and the matchbox. It is  fur- ther  stated that the detenu and those who  accompanied  him attempted to attack the Minister with knives in their  hands but  they were overpowered by the Police and the members  of police.  As  a result of the incident those present  in  the hall panicked and got scared and ran helter skelter, causing obstruction  to  traffic on Aruppukottai Road.  The  Seminar also came to an abrupt bald for a while. paragraph 4 of  the detention order further states that the detenu by committing the  aforesaid grave offence in public, in broad  day  light created a sense of alarm, scare and a feeling of  insecurity in the minds of the public of the 851 area  and  thereby he acted in a manner prejudicial  to  the maintenance  of the public order. His  unlawful,  disorderly and dangerous activities on 27.7.89 were prejudicial to  the maintenance of public order which affected the even tempo of life of the community. On the aforesaid facts, the  District Magistrate  was  satisfied that if the detenu  was  left  to remain  at  ’large he would indulge  in  further  activities prejudicial  to maintenance of public order and recourse  to normal  law would not have the desired effect of  preventing him from indulging in activities prejudicial to the  mainte- nance of public order.     The  question which falls for consideration  is  whether single  incident of murderous assault by the detenu and  his associates on the Minister at the Seminar held at Dry Chilly Merchants’ Association Kalai Arangam Hall was prejudical  to the maintenance of public order. Any disorderly behaviour of a  person in the public or commission of a criminal  offence is  bound to some extent affect the peace prevailing in  the locality  and it may also affect law and order  problem  but the same need not affect maintenance of public order.  There is  basic  difference  between law and  order’  and  ’public

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order’,  this aspect has been considered by this Court in  a number of decisions, see: Dr. Ram Manohar Lohia v. State  of Bihar,  [1966]  1 SCR 709; Pushkar Mukherjee & Ors.  v.  The State  of West Bengal, [1969] 2 SCR 635 and  Shymal  Chakra- borty  v. Commissioner of Police Calcutta & Anr.,  [1970]  1 SCR  762. In these cases it was emphasised that an act  dis- turbing  public order is directed against individuals  which does  not  disturb the society to the extent  of  causing  a general disturbance of public peace and tranquillity. 1t  is the  degree of disturbance and its effect upon the  life  of the  community in the locality which determines  the  nature and  character of breach of public order. In Arun  Ghosh  v. State  of West Bengal, [1970] 3 SCR 288 the Court held  that the  question whether a man has only committed a  breach  of |aw  and  order, or has acted in a manner  likely  to  cause disturbance of the public order, is a question of degree and the  extent of the reach of the act upon the  society.  This view was reiterated in Nagendra Nath Mondal v. State of West Bengal, [1972] 1 SCC 498; Sudhir Kumar Saha v.  Commissioner of  Police, Calcutta, [1970] 3 SCR 360; S.K. Kedar v.  State of  West Bengal, [1972] 3 SCC 816; Kanu Biswas v.  State  of West  Bengal,  [1972] 3 SCC 831; Kishori Mohan v.  State  of West  Bengal, [1972] 3 SCC 845 and Amiya Kumar  Karmakar  v. State of West Bengal, [1972] 2 SCC 672.     In  the instant case the detenu was placed under  deten- tion on the sole incident which took place on 29.7.89 and in respect of which the 852 detenu  is facing criminal trial before a court of law.  The alleged  attempted murderous assault made by the detenu  and his  associates on Thiru Durai Murugan, Minister for  Public Works Department may have been made on account of  political rivalry.  In fact, in his affidavit Thiru Durai Murugan  has admitted that in the past the detenu had misbehaved with him even on the floor of the Legislative Assembly of Tamii  Nadu while  participating  in discussion. The  attempted  assault took  place in the hail of Dry Chily Merchants’  Association Kalai  Arangam  where two Ministers, a number  of  officials including the District Magistrate, as well as members of the public  were present. It is alleged that the attempted  mur- derous  assault on Thiru Durai Murugan created scare  and  a feeling of insecurity in the minds of the persons present in the  hail and the detenu’s action interrupted the  "proceed- ings  of the Seminar for a while" (emphasis supplied).  This shows  that the detenu’s activity disturbed the  proceedings of  the Seminar for a while but the Seminar appears to  have continued  later  on.  The incident did not  and  could  not affect public peace and tranquillity nor it had potential to create a sense of alarm and insecurity in the locality.  How could  a single murderous assault on the Minister  concerned at the Seminar could prejudicially affect the even tempo  of the  life of the community? No doubt in paragraph 4  of  the grounds  the detaining authority has stated that by  commit- ting  this grave offence in public, in broad day light,  the detenu  created  a sense of alarm, scare and  a  feeling  of insecurity in the minds of the public of the area and  there by  acted  in  a manner prejudicial to  the  maintenance  of public order which affected even tempo of life of the commu- nity. Repitition of these words in the ground are not suffi- cient to inject the requisite degree of quality and potenti- ality in the incident in question. A solitary assault on one individual  can  hardly be said to disturb public  peace  or place  public order in jeopardy somuch as to bring the  case within the purview of the Act. Such a solitary incident  can only  raise a law and order problem and no  more.  Moreover,

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there  is no material on record to show that the  reach  and potentiality  of the aforesaid incident was so great  as  to disturb the normal life of the community in the locality  or it disturbed general peace and tranquillity. In the  absence of  such material it is not possible to hold that the  inci- dent  at the seminar was prejudicial to the  maintenance  of public  order. In Manu Bhusan Roy Prodhan v. State  of  West Bengal  &  Ors.,  [1973] 3 SCC 663 this Court  held  that  a solitary assault on one individual, which may well be equat- ed  with an ordinary murder which is not an uncommon  occur- rence,  can hardly be said to disturb public peace  and  its impact on the society as a whole cannot be considered to  be so  extensive,  widespread and forceful as  to  disturb  the normal life of the community, thereby 853 shaking the balanced tempo of the orderly life of the gener- al public. The Court held that the detention order which had been  made  for preventing the petitioner from acting  in  a manner  prejudicial to the maintenance of public order,  was not  sustainable in law. On a careful consideration  of  the matter  in all its aspects and having regard to the  circum- stances in which the alleged incident took place on 29.7.89, we are of the opinion that the solitary incident as  alleged in  the ground of detention is not relevant  for  sustaining the  order  of detention for the purpose of  preventing  the petitioner from acting in a manner prejudicial to the  main- tenance of public order.     The detaining authority, namely, the District Magistrate of  Kamarajan  District who was admittedly  present  at  the Seminar,  has  filed his own affidavit stating that  he  was sitting on the dias alongwith the Minister for Public  Works Department- Thus the incident which is the basis for  deten- tion of the detenu took place in the presence of the detain- ing authority. In his affidavit the District Magistrate has, however, stated that he made the detention order against the detenu  on  perusal of the materials,  facts  and  documents placed  before  him by the police as he was  satisfied  that detenu’s detention was necessary for the purpose of  mainte- nance of public order. He has denied the allegation that the detention order was passed by him under the influence of the Minister.  Since the District Magistrate was present on  the dias  alongwith the Minister and the alleged  murderous  as- sault  is  alleged to have been made by the  detenu  in  the presence of the detaining authority, one would expect him to have witnessed the occurrence himself. But it is interesting to note that in paragraph 23 of his affidavit, the  District Magistrate has stated that though he was present on the dias but did not witness the incident as he was concentrating  on the proceedings of the Seminar and preparing replies to  the querries raised by Speakers at the Seminar. It is  difficult to believe the District Magistrate that he could not see the occurrence although he was seated on the dias alongwith  the Minister,  on whom murderous assault was allegedly  made  by the detenu. He is not ready to corroborate the occurrence as presented  to him by the sponsoring authority,  namely,  the Police.  If the detaining authority was himself present  and was  an eye-witness to the occurrence on-the basis of  which detention order was made, it was imperative for the  detain- ing  authority  to have honestly and bona  fide  formed  the requisite  opinion in making the order of detention  on  the basis of his own knowledge and perception instead of relying more on the version of the incident as placed before him  by the  sponsoring  authority. In a case  where  the  detaining authority may not be present at the 854

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place of the incident or the occurrence, he has to form  the requisite  opinion on the basis of materials  placed  before him  by  the sponsoring authority but  where  the  detaining authority was himself present at the scene of occurrence  he should have relied more on his own observation and knowledge than  on  the  report of the sponsoring  authority.  In  the instant  case the detaining authority though present at  the scene  of occurrence does not support the incident  as  pre- sented  to him by the sponsoring authority. In  the  circum- stances,  we are of the opinion that there was  non-applica- tion  of mind by the detaining authority in making  the  im- pugned order of detention.     In  view of the above discussion the detention order  is rendered illegal and it is accordingly quashed. R.N.J.                                              Petition allowed. ?855