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PETITIONER: SUDHIR KUMAR SAHA

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, CALCUTTA & ANR.

DATE OF JUDGMENT: 18/12/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SHAH, J.C.

CITATION:  1970 AIR  814            1970 SCR  (3) 360  1970 SCC  (1) 149  CITATOR INFO :  RF         1972 SC 665  (9)  R          1972 SC1647  (5)  RF         1972 SC1656  (7)  RF         1972 SC2481  (10)  E          1972 SC2686  (3)  R          1973 SC 295  (7)  F          1973 SC 844  (1)  RF         1973 SC1091  (2)  RF         1987 SC2332  (30)  R          1990 SC1086  (18)

ACT: Preventive   Detention  Act  (4  of  1950),   s.   3(2)-Acts prejudicial to maintenance of public order-What are.

HEADNOTE: The petitioner along with others, committed various offences 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 bombs at them.  He was detained under s. 3(2) of the Preventive Detention Act, 1950, with  a view to preventing him from acting in any manner prejudicial to the maintenance of public order. In  a  petition  under Art. 32 for the issue of  a  writ  of habeas corpus, HELD : The incidents were not interlinked and could not have prejudiced the maintenance of public order.  They were stray incidents spread over a period of one year and four  months, directed against individuals, and did not disturb society to the  extent  of  causing a  general  disturbance  of  public tranquillity; and hence,. the petitioner was entitled to  be released.  The power to detain is an exceptional power to be used  in exceptional circumstances and cannot be used  as  a convenient substitute for the ordinary process of law.   The acts  complained  of against the petitioner can at  best  be considered as prejudicial to "law and order" and not "public order"  as  required  by  the  law  relating  to  preventive detention. [361 H; 362 A-C, E-F] Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709 and Arun  Ghosh  v. State of West Bengal,.[1970] 3  S.C.R.  288,

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followed.

JUDGMENT: ORIGINAL  JURISDICTION: Writ Petition No. 378 of 1969. Petition under Art. 32 of the Constitution for a writ in the nature of habeas corpus. D.   P. Singh, for the petitioner. G.   S. Chatterjee for Sukumar Basu, for the respondents. The Judgment of the Court was delivered by Hegde, J. In this petition under Art. 32 of the Constitution submitted  from  jail,  the  petitioner  seeks  a  writ   of habeas  .corpus  directing his release from  detention.   We have  already  directed  the release of  the  petitioner  on 15-12-1969.   Now we proceed to give our reasons in  support of that order. The  petitioner  was ordered to be detained by  the  Commis- sioner  of Police, Calcutta under s. 3(2) of the  Preventive Detention Act, 1950 (Act IV of 1950) by his order dated July 15,                             361 1969.   It is stated in that order that the  petitioner  was ordered  to be detained with a view to preventing  him  from acting  in  any  manner prejudicial to  the  maintenance  of "public  order".   That  order was confirmed  by  the  State Government  after  the  same was approved  by  the  Advisory Board. From  the grounds served on the petitioner, it appears  that his  detention  was ordered because of the  three  instances mentioned  therein.   It is said therein that  on  28-2-1968 between 9-50 p.m. and 10-30 p.m. the, petitioner armed  with a  knife  along  with  some  others,  also  armed,   created disturbance on the Northern Avenue in the course of which he attacked  the local people with knife as a result  of  which one  Ajit  Kumar  Biswas sustained  stab  injuries.   It  is further  alleged that during that incident,  the  petitioner and  his associates hurled sodawater bottles  and  brickbats towards the local people endangering their lives and  safety and thereby they created. fear and frightfulness amongst the people  of the locality and thus affected public peace  ,and tranquillity of the locality. The second incident mentioned therein is that on  29-10-1968 at about 9-10 p.m. the petitioner being armed with bombs and accompanied  by,  some  other created  disturbance  on  Raja Manindra Road, in the course of which he and his  associates hurled bombs, used swords, iron rods’ and lathis against the local people endangering their lives and safety and  thereby they   created  fear  and  frightfulness  in  the   locality resulting   in   the  disturbance  of   public   peace   and tranquillity of that locality. The  last incident mentioned is that on 28-6-1969  at  about 11-15  p.m.,  the petitioner and his associates  armed  with bombs  created  disturbance  on Raja Manindra  Road  in  the course  of which they indiscriminately hurled bombs  towards the  local  ;people endangering their lives and  safety  and thereby  they  affected -_public peace and  tranquillity  of that locality. From  the record it does not appear that the petitioner  was -prosecuted  for any of the offences mentioned earlier.   It is  not  known why he was not prosecuted.  In  the  ordinary course, if there is truth in the allegations made, he should have  been  prosecuted and given an  opportunity  to  defend himself.  The allegations made against the petitioner do not amount  to  anything more, than that  he  committed  certain

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breaches of law. The freedom of the individual is of utmost importance in any civilized society.  It is a human right.  Under our  Consti- tution it is a guaranteed right.  It can be deprived of only by  due  process  of  law.   The  power  to  detain  is   an exceptional    power   to   be   used   under    exceptional circumstances.  It is wrong to 362 consider the same, as the executive appears to have done  in the present case, that it is a convenient substitute for the ordinary  process of law.  The detention of  the  petitioner under  the circumstances of this case appears to be a  gross misuse of the power conferred under the Preventive Detention Act. The  three  incidents mentioned in the  grounds  are-  stray incidents spread over a period of one year and four  months. These  incidents  cannot be said to be  inter-linked.   They could not, have prejudiced the maintenance of ’public order’ nor  can  they be held to be subversive of  ’public  order’. They  were  at best prejudicial to "’law  and  order".   The distinction  between the maintenance of ’public  order’  and maintenance of "law and order’ was brought out by this Court in  Dr. Ram Manohar Lohia v State of Bihar(’). Therein  this Court pointed out that main tenance of "law and order" is  a conception  much  wider than the conception  of  maintenance ’public order’.  The latter is the prevention of a  disorder of  grave  nature., Every act that affects "law  and  order" need  not affect ’public order’.  If it is  otherwise  every one who disturbs "law and order", however petty the  offence committed  by  him  may  be,  can  be  detained  under   the Prevention Detention Act.  This would be a total repudiation of  of the rule of law and an affront to  our  Constitution. The  lega position relating to the point in issue was  again recently considered by this Court in Arun Ghosh v. State  of West Bengal(’), Therein it was observed that ’public  order’ is  the even tempo of the life of the community  taking  the country-   as  a  whole  or  ever  a   specified   locality. Disturbance  of "public order" is to be  distinguished  from acts  directed against individuals which do no  disturb  the society  to the extent of causing a general  disturbance  of public  tranquillity.  It is the degree of  disturbance  and it,  effect  upon the life of the community  in  a  locality which  determines whether the disturbance amounts only to  a breach of "law and order". We are of the opinion that the grounds stated in support  of the  detention  cannot  amount to  a-  disturbance  of  the, maintenance of ’public order’. V.P.S. (1)  [1966] 1 S.C.R. 709. (2)  [19701 3 S.C.R. 288. 363