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PETITIONER: ALIJAN MIAN AND ANOTHER

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, DHANBAD

DATE OF JUDGMENT13/09/1983

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1983 AIR 1130            1983 SCR  (3) 939  1983 SCC  (4) 301        1983 SCALE  (2)280  CITATOR INFO :  R          1984 SC1334  (21)  R          1985 SC  18  (13)  RF         1988 SC 596  (6,7,10,12)  RF         1988 SC1835  (8)  R          1989 SC2027  (20)  R          1989 SC2265  (13)  D          1990 SC 516  (8)  RF         1990 SC1196  (11)  RF         1990 SC1202  (10)

ACT:      National Security  Act, 1980 (Act 65 of 1980)-Orders of detention, passed  under sub-section (2) of Section 3 of the Act, on  the ground  that "the subject who is in jail and is likely to  be released  on bail,  if allowed to be at large, will indulge in activities prejudicial to the maintenance of public order"-Whether  the detention  is bad  either on  the ground that  there was  no case made out for apprehension of breach of  public order  or that  the  criminal  proceedings having been  initiated,  no  case  of  preventive  detention arises or  that the  case is  one of law and order and not a case of  public order  or that  there being no allegation in the First Information Report, the detaining authority cannot invent a new ground to fall under sub-section (2) of section 3 of the Act.

HEADNOTE:      Dismissing the petitions, the Court ^      HELD: 1.  The clear  words of  the detention order show that the  detaining authority was alive to the fact that the petitioners were  in jail  custody on the date of passing of the detention orders, but it was satisfied that if they were enlarged on  bail, of which there was every likelihood, they would create problems of public order and, therefore, it was necessary to  prevent them from doing so. The position would have been entirely different if the petitioners were in jail and had  to remain  in jail for a pretty long time, in which situation there could be no apprehension of breach of public order from them. [944 C-E]      2. Preventive  detention is an anticipatory measure and

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does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him. They are not  parallel  proceedings.  In  the  circumstances  the pendency of  a criminal prosecution is no bar to an order of preventive  detention,   nor  is   an  order  of  preventive detention a  bar to  prosecution. It  is for  the  detaining authority to  have the  subjective satisfaction  whether  in such a  case there  are sufficient  materials to  place  the person under  preventive detention  in order  to prevent him from acting  in a  manner prejudicial to public order or the like in future. [944 F-H]      K.M. Chokshi  v. State  of Gujarat,  [1979] 4  SCC  14, applied.      3.1. The difference between ’law and order’ and ’Public order’ is  now well  settled. Applying  the well settled law enunciated in Ram Ranjan Chatterjee 940 v. The  State of  West Bengal,  [1975]3 SCR  301, to the two incidents, it  is clear  that throwing  a bomb  in  a  large gathering where  a cultural  programme was  going on  at the dead of  night resulting  in the  public running  helter and skelter to  save their  lives makes  out a  case of  ’public order’ inasmuch  as it  disturbed the  tranquillity and  the even  tempo  of  life  of  the  public.  Therefore,  if  the detaining authority  was satisfied  that the  two  incidents make out  a case  of apprehension of breach of public order, the detention order cannot be faulted. [945 G; 946 E-G]      Ram Ranjan  Chaterjee v. State of West Bengal, [1975] 3 S.C.R. 301 followed.      Saya Mala  v. Home  Secretary, Government of J & K, AIR 1982 SC. 1297, distinguished.      3:2.  The  two  incidents  in  the  instant  case  were sufficient  for   the  detaining   authority   to   initiate proceedings  for   preventive  detention.   It  is  for  the detaining authority  to  have  the  subjective  satisfaction about the  apprehension of  the breach  of public order from the incidents.  Even  one  incident  may  be  sufficient  to satisfy the  detaining authority.  It all  depends upon  the nature of the incident. [947 G-H]      4. The  absence of  an allegation about the disturbance of public  order in  the two  First Information Reports will not  affect   the  position  because  there  was  additional material before  the detaining authority which satisfied him about the  apprehension of  breach of  public order from the petitioners in case they were enlarged on bail. [948 C-D]

JUDGMENT:      EXTRAORDINARY ORIGINAL  JURISDICTION  :  Writ  Petition (Criminal) Nos. 678 and 679 of 1983.      (Under article 32 of the Constitution of India)      Miss R. Vaigai for the Petitioners.      D. Goburdhan for the Respondent.      The Judgment of the Court was delivered by      MISRA  J.   These  two   connected  petitions  seek  to challenge the  orders of  detention dated 2nd December, 1982 passed by  the District  Magistrate, Dhanbad  in exercise of powers conferred  by subs.  (2) of  s.  3  of  the  National Security Act,  1980 (No.  65 of 1980) read with notification No. 3183/C  dated 15th of October, 1982 of the Government of Bihar. 941      Alijan Mian,  the petitioner  in the first petition, is an employee  of the  Eastern Coalfields  Limited working  at

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Khudia Colliery  as a  dumper driver.  Jadunandan  Sah,  the petitioner in  the second  Petition, is also a dumper driver in Gopi Nathpur Colliery.      The object  of the  order of  detention as indicated in the impugned  order was  to  prevent  the  petitioners  from acting in  any manner  prejudicial  to  the  maintenance  of public order.  The grounds  of  detention  supplied  to  the petitioners are in identical terms and they are as follows:      "1.  That  on  15/16.10.82,  at  about  2.30  A.M.  the           subject alongwith Jadunandan Sah and 3 others went           to Khudia Colliery and dragged one Shri Ram Briksh           Chauhan who  were witnessing  a cultural programme           and started  assaulting him  in presence  of large           gathering who  were  there  to  see  the  cultural           programme. This  created great  panic and alarm in           the area  and adversely affected the public order.           Hearing the  cry, Mussafir  Chauhan came there but           seeing the  subject and  his associates engaged in           the assault  of his  brother started  running away           for his life. The subject and his associates, with           an intention  to establish  criminal supremacy and           to kill  him threw  two bombs on him, resulting in           grievous injury  to Mussafir Singh. This adversely           affected the  public order  and persons  who  were           witnessing the  cultural programme started running           helter and skelter for their lives. This refers to           Nirsa P.S. Case No. 189 dated 6.10.1982 u/s 307/34           IPC, 3/5  Explosive Sub.  Act.  Thus  the  subject           acted in  a manner  prejudicial to the maintenance           of the public order.      2.   That on  8.11.82, at  about 11.30 A.M. the subject           alongwith Rambriksh  Singh, Jadunandan  Mahato and           Chandra Shekhar  Singh armed with bombs, gun, etc.           went to  the house of Ram Naresh Chauhan in Khudia           Colliery.  One   of  his   associates  under   the           direction and  guidance of the subject opened fire           on Shri  Chauhan resulting  in grievous  injury to           him. Opening  of gun  fire in  a thickly populated           residental colony of Khudia Colliery created great           panic and alarm in 942           the area and adversely affected public order. This           refers to  Nirsa P.S.  case No.  208 dated 8.11.82           u/s. 307/34  I.P.C. and  s. 27  Arms Act. Thus the           subject acted  in  a  manner  prejudicial  to  the           maintenance of  public order.  The subject  is  in           jail and is likely to be released on bail. As such           the detention order was served in jail.           In the  circumstances I am satisfied that if he is      allowed  to   remain  at  large,  he  will  indulge  in      activities prejudicial  to the  maintenance  of  public      order.           For prevention  of such activities, I consider his      detention necessary.  Shri Alijan Mian is informed that      he may  make a  representation in  writing against  the      order  under   which  he   has   been   detained.   His      representation, if  any, may be addressed to the Deputy      Secretary, Home  (Spl.)  Department,  Govt.  of  Bihar,      Patna and forwarded through the Superintendent of jail,      Dhanbad as early as possible."      The orders of detention were sequal to two incidents of 15/16th October  and 8th  November, 1982  giving rise to two criminal cases,  Nirsa P.S. Case No. 189 and Nirsa P.S. Case No. 208 of 1982 respectively. The petitioner Alijan Mian was arrested  on   8th  November,   1982  while  the  petitioner

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Jadunandan Sah  was arrested  on 12th  of November,  1982 in connection with the aforesaid incidents.      The petitioners  made representation  against the order of detention  in both the cases and the representations were on the  same pattern.  Their stand was that they were active members of  the union  of workers of the colliery, viz., the Colliery Mazdoor  Sabha There  were other unions in the said collieries and  due to  some inter  union  rivalry  a  first information  report  against  them  was  lodged  by  persons belonging to  a rival union for an alleged offence under ss. 307/34 IPC and 27A of the Arms Act. In the first information report it was alleged that on 8th November the informant was shot in  his hand  near his house by one Ram Bilas Singh and that at  that time  the petitioners  were with  the said Ram Bilas Singh.  Their intention was to kill him because he did not participate  in the strike in the colliery. In the first information report regarding the other. 943 incident under  ss. 307/34  IPC and ss. 3/5 of the Explosive Substances Act  it was  alleged that on the night of 15/16th October 1982  around 2 A.M. the petitioners were beating the brother of  the informant near a school, where some function was going  on. On  seeing the  petitioners in the company of others the  informant started  running but  he was chased by others and a bomb was thrown at his back but he escaped. But Alijan Mian,  the petitioner,  threw another  bomb  and  the informant was injured at his back and fell. The said persons intended to kill him. The petitioners in both the cases were later on  granted bail  but the two criminal cases mentioned above are still going on.      By an  order dated  13th December,  1982 the Government approved the  detentions order  and informed the petitioners by letter  dated 30th  December, 1982  of the  reference  of their representation  to the  Advisory Board  asking them to appear in  person before the Board. The petitioners appeared in person before the Advisory Board.      The Advisory  Board eventually gave an opinion that the order of  detention was  justified. On  the  basis  of  that report the  Government ordered  detention of the petitioners upto 2nd  December, 1983.  The  petitioners  challenged  the order of  detention by  filing writ  petitions in  the  High Court but the same were dismissed in limine. The petitioners instead of  filing an  appeal against  the order of the High Court rejecting  the writ  petitions have chosen to file the present petitions under Art. 32 of the Constitution.      The contentions raised on behalf of the petitioners are fourfold:      1.   The petitioners  were in  jail when  the detention           orders were  passed, when  there was absolutely no           apprehension of breach of public order from them.      2.   The two  incidents  on  the  basis  of  which  the           proceedings  for  preventive  detention  had  been           started  were   already  the   subject  matter  of           criminal proceedings  and in the circumstances the           proceedings   for    preventive   detention   were           absolutely uncalled for.      3.   At the  most the  two incidents make out a case of           law and order and not a case of public order. 944      4.   In the  absence of  any allegation  in  the  first           information reports of the two incidents about the           apprehension of  the breach  of public  order from           the petitioners  the detaining authority could not           invent a  ground regarding  apprehension of breach           of public order from the petitioners.

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    It may  be pointed  out at  the very  outset  that  the detaining  authority   was  alive   to  the  fact  that  the petitioners were  in jail custody on the date of the passing of the  detention orders as will be clear from the following statement in the grounds of detention:           "The subject  is in  jail  and  is  likely  to  be      released on  bail. In  the circumstances I am satisfied      that if  he is  allowed to  remain at  large,  he  will      indulge in activities prejudicial to the maintenance of      public order." The position  would have  been  entirely  different  if  the petitioners were  in jail  and had  to remain  in jail for a pretty long  time. In  such a  situation there  could be  no apprehension  of   breach  of   ’public  order’   from   the petitioners. But  the detaining authority was satisfied that if the petitioners were enlarged on bail, of which there was every likelihood,  they  would  create  problems  of  public order. It  was, therefore,  necessary to  prevent them  from acting in any manner prejudicial to public order.      As regards the contention that the criminal proceedings as well  as the  proceedings for  preventive detention could not go  together, it  may be  pointed  out  that  preventive detention is  an anticipatory measure and does not relate to an offence  while the  criminal proceedings  are to punish a person for  an  offence  committed  by  him.  They  are  not parallel proceedings. In the circumstances the pendency of a criminal prosecution  is no  bar to  an order  of preventive detention, nor  is an order of preventive detention a bar to prosecution. It  is for  the detaining authority to have the subjective satisfaction  whether in  such a  case there  are sufficient materials  to place  the person  under preventive detention in  order to  prevent him  from acting in a manner prejudicial to public order or the like in future.      The learned  counsel for  the petitioners  relied  upon K.M. Chokshi  v. State  of  Gujarat(1)  in  support  of  the contention that in 945 view of  the criminal prosecution of the petitioners for the two incidents, proceedings for the preventive detention were uncalled for.  In that  case the  Court after an analysis of the various cases cited observed:           The principles energing from a review of the above      cases may  be summarised  in  the  following  way:  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 to  the mind  of  the      detaining  authority   the  order   of   detention   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      authority  had  not  applied  its  mind  to  the  vital      question whether  it was  necessary to make an order of      preventive detention." It is  obvious from  the above observation in the case cited on behalf  of the  petitioners that  criminal prosecution is not an  absolute bar to an order of preventive detention. If the detaining authority has the subjective satisfaction that it was  necessary to  detain the petitioners to prevent them from indulging in activities prejudicial to public order, he could certainly  order detention  of the petitioners. In the instant case  the detaining  authority clearly  stated  that

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although the  petitioners were  in jail, they were likely to be enlarged  on  bail  and  in  that  case  there  would  be apprehension from  the petitioners  regarding the  breach of public order.      This leads  us to  the third  contention that  the  two incidents makes  out a  case of law and order and not a case of public  order. The difference between ’law and order’ and ’public order’  is  by  now  well  settled.  In  Ram  Ranjan Chatterjee  v.  The  State  of  West  Bengal(1)  this  Court observed:           "It may be remembered that qualitatively, the acts      which affect ’law and order’ are not different from the 946      acts which  affect ’public  order’. Indeed,  a state of      peace of  orderly  tranquillity  which  prevails  as  a      result of  observance of  enforcement of  internal laws      and regulations  by the Government, is a feature common      to the  concept of  ’law and  order’ and ’public order.      Every kind  of disorder or contravention of law affects      that orderly  tranquillity. The distinction between the      areas of  ’law and order’ and ’public order’ as pointed      out by  this Court  in Arun  Ghosh  v.  State  of  West      Bengal, "is  one of  degree and  extent of the reach of      the act in question of society." It is the potentiality      of the act to disturb the even tempo of the life of the      community which makes it prejudicial to the maintenance      of public  order. If the contravention in its effect is      confined only to a few individuals directly involved as      distinguished from  a wide  spectrum of  the public, it      would raise  a problem  of law  and order  only.  These      concentric concepts  of ’law  and  order’  and  ’public      order’ may  have a  common ’epicentre’,  but it  is the      length, magnitude  and  intensity  of  the  terror-wave      unleashed by  a particular  eruption of  disorder  that      helps distinguish it as an act affecting ’public order’      from that concerning ’law and order’." Applying the  well-settled law  on the  question we  have to determine whether  the two incidents make out a case of ’law and order’  or ’public  order’. It  was  for  the  detaining authority to have the subjective satisfaction that there was apprehension of breach of public order from the petitioners. In one  incident one  of the  petitioners threw  a bomb in a large gathering  where a  cultural programme was going on at the dead  of night  whereupon  the  public  started  running helter and  skelter to  save their  lives. That  will in our opinion make  out a  case of ’public order’ in as much as it disturbed the tranquillity and the even tempo of life of the public. The  second incident was also of the same nature. If the detaining  authority in  the circumstances was satisfied that the  two incidents  make out  a case of apprehension of breach of public order we find no infirmity in the order.      Reliance  was  also  placed  upon  Jaya  Mala  v.  Home Secretary, Govt.  of J.  and K.(1).  In  that  case  also  a criminal case was started on 947 the basis  of an incident and there being no suggestion that the witnesses  were not  forthcoming in  connection with the alleged infraction  of law  it  was  not  clear  why  normal procedure of  investigation, arrest  and trial was not found adequate to  thwart the  criminal activities  of the detenu, and in  these circumstances  this Court  held that there was non-application of  mind of  the detaining  authority  which became evident  from the  frivolity of  grounds on which the detention order  was founded.  The order  of detention  was, therefore, invalid.  But this  Court did lay down the law in

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the following terms:           "It is not for a moment suggested that power under      the preventive  detention law cannot be exercised where      a criminal conduct which could not be easily prevented,      checked  or   thwarted,  would  not  provide  a  ground      sufficient for detention under the preventive detention      laws. But  it is equally important to bear in mind that      every minor infraction of law cannot be upgraded to the      height of an activity prejudicial to the maintenance of      public order. If every infraction of law having a penal      sanction by  itself is  a ground  for detention  danger      looms  large   that  the  normal  criminal  trials  and      criminal courts  set up  for administering justice will      be substituted  by detention  laws often  described  as      lawless law." The facts  of that  case were distinguishable from the facts of the  present case.  In the  present  case  the  detaining authority  had  the  subjective  satisfaction  that  if  the petitioners are  allowed  to  remain  at  large,  they  will indulge in  activities prejudicial  to  the  maintenance  of public order.      Now the  question arises whether the two incidents were sufficient  for   the  detaining   authority   to   initiate proceedings  for   preventive  detention.   It  is  for  the detaining authority  to  have  the  subjective  satisfaction about the  apprehension of  the breach  of the  public order from the incidents mentioned above. Even one incident may be sufficient  to  satisfy  the  detaining  authority.  It  all depends upon the nature of the incident. In the case in hand the detaining  authority was  fully satisfied that there was apprehension of  breach of public order from the petitioners in case  they were  bailed out,  of which  there  was  every likelihood. This contention in our opinion has no force. 948      This leads  us to  the  last  contention  that  in  the absence of any allegation in the first information report in the two  cases about  the disturbance  of public  order  the detaining authority  could not invent a ground regarding the apprehension from  the petitioners  about the disturbance of public order.  A counter  affidavit has been filed on behalf of the  detaining authority  and in  paragraph 3 it has been averred that  apart from the first information report in the two cases  there was  the supervision  note  of  the  Deputy Superintendent  of   Police,  Dhanbad   and  the   detaining authority was satisfied on the basis of materials before him that there  was apprehension  of breach of public order from the petitioners.  The absence  of an  allegation  about  the disturbance of  public order  in the  two first  information reports will  not effect  the  position  because  there  was additional material  before the  detaining  authority  which satisfied him  about the  apprehension of  breach of  public order from  the petitioners  in case  they were  enlarged on bail. This contention has, therefore no substance.      For the foregoing discussion we find no force in any of the contentions  and  the  petitions  must  fail.  They  are accordingly dismissed. S.R.                                    Petitions dismissed. 949