http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17  

PETITIONER: ANANTA MUKHI, @ ANANTA HARI

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT03/02/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN

CITATION:  1972 AIR 1256            1972 SCC  (1) 580  CITATOR INFO :  E          1972 SC1749  (9)  R          1973 SC 300  (4,5)  R          1974 SC 255  (12)

ACT: West Bengal (Prevention of Violent Activities) Act 1970-Sec. 3 (2) and Sec. 3(3)-Their scope.

HEADNOTE: Petitioner,  through Jail, filed a writ petition under  art. 32  for  a  writ  of babeas corpus. He  was  ordered  to  be detained  u/s.  3  of West  Bengal  (Prevention  of  Violent Activities)  Act, 1970, with a view to preventing  him  from acting  in  any manner prejudicial to the  security  of  the State  or the maintenance of public order.  The  grounds  of detention  were that the petitioner along with  50/60  other persons  armed  with lethal weapons raided the  house  of  a person  on  October  4,  1969  at  night  and  looted  cash, ornaments  etc., and on November 8, 1969 at about  10  p.m., the petitioner along with 20/30 associates armed with lethal weapons, raided the house of another citizen and killed  his two brothers and looted ornaments etc. It  was  contended  on behalf of  the  petitioner  that  the detaining  authority  had  taken  into  consideration  facts extraneous  to  Sec.  3 of the Act in making  the  order  of detention  and  therefore, the said order  was  illegal  and secondly,  that  the  order of  detention  showed  that  the District  Magistrate  had not duly applied his  mind  before making  the detention order as the petitioner  was  detained with  a  view to preventing him from acting  in  any  manner prejudicial to the security of the State or the  maintenance of public order.  According to the petitioner, the detaining authority  was  not sure as to whether  the  petitioner  was detained  for  acting  in  any  manner  prejudicial  to  the security of the State or whether he was detained from acting in  any  manner  prejudicial to the  maintenance  of  public order.  The District Magistrate could not make an indefinite order  by using the word ’or’ in the detention order and  so the order was bad.  Dismissing the petition, HELD : (i) The activities of the petitioner as mentioned  in the grounds of detention were not of an extraneous character but  fell  within,  the  expression  acting  in  any  manner

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17  

prejudicial  to the security of State or the maintenance  of public order, as defined in Sub-Section (2) of Section 3  of the  Act.  According to the grounds of detention, the  peti- tioner and his associates committed offenses punishable with death  or imprisonment for life or imprisonment for  a  term exceeding seven years or more, and as ’Such, the case of the petitioner  was covered by Clause (d) of Sub-Section (2)  of Section  3  of  the Act.  Further,  the  activities  of  the petitioner disturbed public order and the petitioner  became a  terror  to the residents of the locality  and  under  the circumstances,  the  District Magistrate  was  empowered  to exercise  his powers under Sub-Section (3) of Section  3  of the Act. [395 F] 380 (ii)  The  Special definition given in  Sub-Section  (2)  of Section  3  of  the Act of the expression,  "acting  in  any manner  prejudicial  to the security ,of the  State  or  the maintenance  of public order’, is of  comprehensive nature and  each  one of the activities mentioned  in  the  various clauses   of  the  said  sub-section  constitutes   an   act prejudicial to the security of the State or the  maintenance of  public  order.   The presence of the word  "or"  in  the definition itself tends to show that the use of that word in the  order is not impermissible and there was no element  of casualness or absence of due application of the mind in  the making of the impugned .order. [397 D] Shelat J. Dissenting : The construction of the definition in S.  3(2)  cannot  mean  that  any  one  of  the   activities enumerated in Clauses (a) to (c)   would fall under both the grounds,   namely,  the  security  of  the  State  and   the maintenance of public order. An  act,  such  as, use of or instigating to  use  a  lethal weapon  for  the  purpose mentioned in  Clause  (a)  (i)  or causing  insult to the national flag mentioned under  Clause (e) would be a ground of detention, if it either affects, or is  likely  to affect adversely either the security  of  the State  or public order depending upon the  potentiality  and the extent of the act in question.  Such use or  instigation or  insult to national flag, might affect only public  order and on a state-wide potentiality, it might affect  adversely even  the security of the State.  But irrespective  of  such reach  or potentiality, the clause cannot mean that such  an act  in itself and without anything more must be  deemed  to fall  under the mischief of both the kinds.  The  result  of accepting  such a construction would mean that once an  ,act falls  under any one of the clauses (a) to (e), even  if  it affects or is likely to affect public order only, must  also be  held to affect or likely to effect the security  of  the State thus totally wiping off the difference between the two concepts  and their respective areas of influence  and  that could  not  be the intention underlying Sub-Section  (2)  of Sec.  3.  Therefore,  it must be held that the  use  of  the disjunctive ’or’ in the impugned order rendered the order of detention vague and indefinite, indicative of the  detaining authority having merely reproduced mechanically the language of  S. 3(1) of the Act without applying its  mind  properly. [389 D; 390 HI Jagannath Misra v. State of Orissa, [1966]  3 S.C.R.  134, discussed and distinguished. Dr.   Ram  Manohar Lohia v. State of Bihar [1966] 1 S.C.R. 709; Madhu Limaya.v. S.D.O.  Monghyr & Ors., [1970] 3 S.C.R. 746, State  of  West Bengal  v.  Ashok Dey & Ors, Cr.  Appeal No. 217 to  223  of 1971,  decided  on  November  19,  1971,  referred  to   and followed.  Shyamal  Mandol v. State of West  Bengal,  A.I.R. 1971 S.C. 2384, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17  

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 322 of 1971. R.   K. Jain, for the petitioner. G.   L. Mukhoty and G. S. Chatterjee, for the respondent. 381 J. M. SHELAT, J. gave a dissenting opinion.  The Judgment of H. R. KHANNA and K. K. MATHEW, JJ. was delivered by  KHANNA, J. Shelat J., The  order  of  detention impugned in this  petition  is  as follows                          "ORDER No. 97/C                                 Dated 24-4-71 Whereas  I am satisfied with respect to the person known  as Shri Ananta Mukhi, @ Ananta Hari, son of Gobardhan, @  Gurai of Antpara, Chakbazir, P. S. Debra, Dt.  Midnapore that with a  view  to  preventing  him  from  acting  in  any   manner prejudicial to the security of the State or the  maintenance of  public order, it is necessary so to do, I  therefore  in exercise  of  the powers conferred by sub-section  (1)  read with  sub-section  (3)  of  section 3  of  the  West  Bengal (Prevention  of Violent Activities) Act,  1970  (President’s Act No. 19 of 1970) make this order directing that the  said Shri Ananta Mukhi @ Ananta Hari be detained. Given under my hand and seal of office.                                   Sd./- District Magistrate                                              Midnapore" The question which falls for determination in this  petition is whether detention directed by an order which recites that it  was  made upon satisfaction of the  District  Magistrate that the person concerned was acting in a manner prejudicial to  the security of the State or the maintenance  of  public order is an order lawfully made.  The argument was that  the use  of  the disjunctive ’or’, instead  of  the  conjunctive ’and’,  showed either that the detaining authority  was  not certain under which of the two grounds, namely, the security of  the  State or the maintenance of public  order,  he  had reached  his  subjective  satisfaction,  impelling  him   to consider  the petitioner’s detention necessary, or that  the order  was  passed  mechanically,  merely  reproducing   the language of sec. 31(1) without any application of mind as to whether  the acts of the petitioner, actual or  anticipated, were  prejudicial  to  the  security of  the  State  or  the maintenance  of public order, or both.  If it was the  last, obviously, the order should have used the conjunctive  ’and, and not the disjunctive ’or’.  To appreciate the contention, it  would  be  necessary to understand the  object  and  the scheme of the Act. By a Proclamation, dated March 19, 1970, made under Art. 356 of the Constitution, the President of India, being satisfied that  a  situation had arisen in which  government  in  West Bengal could 382 not  be carried on in accordance with the provisions of  the Constitution, assumed to himself the functions of government of  that  State and declared that the powers  of  the  State Legislature  shall be exercisable by or under the  authority of  Parliament.   In  pursuance of  the  said  Proclamation, Parliament enacted, on April 29, 1970, the West Bengal State Legislature (Delegation of Powers) Act, XVII of 1970,  under sec.  3 of which the State Legislature’s power to make  laws was conferred on the President, who was empowered to  enact, whether Parliament was in session or not, as President’s Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17  

a   bill  containing  such  provisions  as   he   considered necessary.  In exercise of the powers contained in Act  XVII of  1970,  the President enacted the President  Act  XIX  of 1970.   Since  that Act was enacted in exercise  of  and  in accordance with the powers of the State Legislature, the Act providing for preventive detention could be passed in  terms and  within the scope of entry 3 of the Concurrent  List  in the  Seventh Schedule to the Constitution, that is  to  say, for  reasons connected with (a) the security of that  State, (b) the maintenance of public order, or (c) the  maintenance of supplies and services essential to the community. Act XIX of 1970 was enacted to "provide for detention with a view  to  preventing  violent  activities  and  for  matters connected  therewith".  Sec. 3, the construction whereof  is called  for  in  this petition,  by  its  first  sub-section confers  power  to  make detention  orders  against  certain persons.  That subsection reads as follows               "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               the   maintenance  of  public  order,  it   is               necessary  so to do, make an  order  directing               that such person be detained." Its   second  sub-section  contains  a  definition  of   the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" employed in sub-section  (1),  and  enumerates in  clauses  (a)  to  (e) diverse  acts as falling within the said  expression.   That sub-section reads as follows :               "(2) For the purposes of sub-section (1),  the               expression "acting in any manner prejducial to               the  security of the State or the  maintenance               of public order" means-               (a) using, or instigating any person by words,               either  spoken or written, or by signs  or  by               visible representations or otherwise, to  use,               any lethal weapon-               (i)   to  promote  or propagate any  cause  or               ideology,  the  promotion  or  propagation  of               which 383 .lm50 affects,  or is likely to affect, adversely the security  of the State or the Maintenance of public order; or (ii)  to overthrow or to overawe the Government  established by law in India. Explanation.-In this clause, "lethal weapon’ includes  fire- arms,  explosive  or corrosive substances,  swords,  spears, daggers, bows and arrows; or (b)  committing mischief, within the meaning of section  425 of  the  Indian  Penal  Code,  by  fire’  or  any  explosive substance  on  any  property  of  Government  or  any  local authority   or  any  corporation  owned  or  controlled   by Government   or   any  University   or   other   educational institution or on an public building where the commission of such  mischief  disturbs, or is likely  to  disturb,  public order; or (c)  causing  insult to the Indian National Flag or  to  any other  object of public veneration, whether  by  mutilating, damaging,  burning,  defiling, destroying or  otherwise,  or instigating any person to do SO. Explanation-In  this  clause, "object of  public  veneratio" includes  any  portrait  or statue  of  an  eminent  Indian,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17  

installed  in a public place as a mark or respect to him  or to his memory; or (d)  committing,  or instigating any person to  commit   any offence  punishable with death or imprisonment for  life  or imprisonment for a term extending to seven years or more  or any  offence  under  the Arms Act, 1959  or:  the  Explosive Substances  Act 1908, where the commission of  such  offence disturbs, or is likely to disturb, public order, or (e)  in the case of a person referred to in clauses  (a)  to (f) of section 110 of the Code of Criminal Procedure,  1898, committing  any offence punishable with imprisonment  where, the  commission  of such offence disturbs, or is  likely  to disturb, public order." Under   sub-sec.  (1)the  satisfaction   is  regarding   the necessity of preventing the person concerned from acting  in any  manner prejudicial either to the security of the  State or the, maintenance 12-L887 Sup CI/72 384 of  public  order.  As the  language  of  the  sub-section stands,  such  satisfaction  must  be  in  relation  to   an activity, prejudicial either to the security of the State or the  maintenance of public order, or in certain  cases  even both.   Therefore,  before  the power of  detention  can  be invoked  the detaining authority must be satisfied that  the activity  of the person concerned is such that it is  either prejudicial to the security of the State or the  maintenance of public order or both. Neither  the  expression "security of the  State"  nor  "the maintenance of public order" has been defined either in this Act  or in the Preventive Detention Act, IV of 1950, or  the Defence  of India Act, 1952 and the Rules  made  thereunder, which  earlier  made  provision  for  preventive  detention. Unlike the previous enactments, sub-sec. (2) of s. 3 in  the present  Act,  however,  furnishes  a  dictionary  for   the expression "acting in any manner prejudicial to the security of  the State or the maintenance of public order", and  then enumerates  in  cls. (a) to (e) certain categories  of  acts which  would  fall  under  the  aforesaid  expression.   The definition, however, does not provide the meaning of the two concepts  "security of the State", or, "public  order",  and leaves  the detaining authority to determine whether an  act in  question  disturbs or is likely to disturb  or  endanger either  of them, or both.  It becomes necessary,  therefore, to  ascertain the canotation of these two concepts  as  laid down  in  certain judicial pronouncements.   Although  those pronouncements  were under the Preventive Detention  Act  of 1950,  they  would, nevertheless, apply to the  present  Act also,  since by not providing any different  definition  the legislative  authority  must be presumed to  have  used  the expressions,  security of the State and the  maintenance  of public order, according to their well established meanings. In Dr. R. M. Lohia v. Bihar(1), the impugned detention order was  passed  under r. 30(1) of the Defence of  India  Rules, 1962 which required satisfaction of the detaining  authority that the person concerned should be prevented from acting in a  manner prejudicial inter alia, to the public  safety  and the  maintenance of public order.  The order impugned  there stated  that  the  authority  was  satisfied  that  it   was necessary  to detain the petitioner with a view  to  prevent him  from  acting  in a manner prejudicial  to  "the  public safety and maintenance of law and order".  After considering the  earlier decisions on the question as to the meaning  of the  expressions,  ’law  and  order’,  ’public  order’   and security  of the State, Hidayatullah, J., (as he  then  was) summed up as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17  

             "The  District Magistrate acted  to  "maintain               law and order and his order could not be  read               differently even (1)  [1966] 1 S.C R 709. 385               if  there was an affidavit the other way.   If               he  thought  in  terms of  "public  order"  he               should have said so in his order, or explained               how the error arose.  A mere reference to  his               earlier  note was not sufficient and  the  two               expressions cannot be reconciled by raising an               air   of   similitude   between   them.    The               contravention of law always affects order  but               before it can be said to affect public  order,               it must affect the community or the public  at               large.   One has to imagine  three  concentric               circles,  the  largest representing  "law  and               order",  the next representing "public  order"               and  the  smallest representing  "security  of               State".  An act may affect "law and order" but               not "public order", just as an act may  affect               "public order" but not security of the State".               Therefore,    by    using    the    expression               "maintenance  of law and order"  the  District               Magistrate  was  widening  his  own  field  of               action and was adding a clause to the  Defence               of India Rules." These observations clearly bring out the distinction between the  three concepts, of law and order, public order and  the security  of the State, and the scope of each of them.   The drawing   up   of   imaginary   concentric   circles   helps considerably in delineating the distinction between one from the  other and the area covered by each of them.  A  similar distinction between the concept of law and order and that of public  order  was  drawn  in  Pushkar  Mukherjee  v.   West Bengal(1)  by a caution therein that the expression  "public order"  in sec. 3(1) of the Preventive Detention  Act,  1950 did  not take in every infraction of law.  It  was  observed that  the contravention of any law always  affects  ’order’, but before it-can be said to affect ’public order’, it  must affect   the  community  or  the  public  at large.  Mere disturbance  of  law and order leading to  disorder  is  not necessarily  sufficient  for  action  under  the  Preventive Detention  Act,  which can only be invoked  where  there  is apprehended   a  disruption  of  public  order.   The   true distinction between the three concepts lies, as pointed  out in Arun Ghosh v. West Bengal(2), in the degree and extent of the reach of the act in question upon society.  Acts similar in   nature,  but  committed  in  different   contexts   and circumstances might cause different reactions.  In one case, it  might  affect  the  problem of law  and  order,  and  in another,  though similar in quality, of public  order.  (see also  Nagendra Nath Mondal v. West Bengal(3).  An act,  such as  communicating  the defence secrets of a  country  to  an enemy  country, while not affecting the maintenance  of  law and  order  or  public order,  would  affect  adversely  the security  of  the  State. On the other hand,  there  may  be activities which depending upon (1) [1969] 2 S.C.R. 635     (2) [1970] 3 S.C.R. 288 (3)  Writ Petition 308 of 1971, decided. on 13-1-72. 386 the degree of their effect and potentiality might affect all the three at the same time. The three concepts have, thus, through a catena of decisions acquired well understood meanings, and though in some  cases

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17  

they  might  overlap to a certain  extent,  the  distinction between  them is fairly clear.  When,  therefore,  statutes, such  as  the present one, confer power on an  authority  to deprive  a citizen of his liberty, and bar at the same  time any  judicial scrutiny into the sufficiency of  reasons  for doing  so,  it  is  vital that  the  action  depriving  such liberty, without the usual trial, must not only comply  with the  substantive  but also the formal  requirements  of  the statute  conferring such power, for, it is the latter  which would  show whether the former have been complied with.   If the power, therefore, is exercised because a certain result, namely, danger to public order or the security of the State, is apprehended, the detaining authority ought to set out  in clear terms both in the order and the grounds for  detention upon  which of the two apprehended results, or both,  he  is satisfied.   Obviously,  it would not be  possible,  without that  being explicitly set out, for the person concerned  to make  a  representation, which is the  only  protection  and safeguard  given to him under such statutes.  The  detaining authority  has, therefore, to carefully ascertain, in  order to reach his requisite satisfaction, whether the activity in question,  whether actual or expected, affects or is  likely to  affect  any  one  of  the  two  things,  namely,  public disorder,  or danger to the security of the State  or  both, and  state  so  clearly in the order.  It may  be  that  the activity  in  question might be such that it affects  or  is likely to affect one or the other, or both at the same time, in  which  case he can state that his  satisfaction  was  as regards both. As  is clear from the first subsection of sec. 3, that  sub- section  confers  power  to make  detention  orders  against certain  persons  but  its exercise is  conditioned  by  the satisfaction  that  if  not detained, the  activity  of  the person   concerned,  actual  or  anticipated,  will   affect prejudicially either the security of the State or the public order, or both.  The disjunctive ’or’, used there, must mean that  the required satisfaction is one or the other  ground, or even both.  But, unlike the, earlier Acts, which provided for  preventive detention, the present Act furnishes in  the second sub-section of sec. 3 a definition for the expression used in the first sub-section, namely, "acting in any manner prejudicial   ’to  the  security  of  the  State,   or   the maintenance  of  public  order",  by  setting  out   certain categories  of activities which must be accepted as  capable of  affecting  prejudicially the security of  State  or  the public  order.  Using or instigating a person, orally or  in writing,   ’or  by  signs  or  verbal   representation,   or otherwise, to use any lethal’weapon either (i) to promote or propagate a cause, or ideology, the promotion or 387 propagation  of  which  affects,  as  is  likely  to  affect adversely  the security of the State, or the maintenance  of public   order,  or  (ii)  to  overthrow,  or  overawe   the Government  established  by  law  would,  according  to  the definition  in  sub-sec.  (2),  mean  acting  in  a   manner prejudicial to the security of the State or the  maintenance of  public order.  It would seem from cl. (a) that  acts  of the  kind  mentioned  in sub-cl. (i) would  be  regarded  as prejudicial to public order or security of the State, as the case may be, while those mentioned in sub-cl. (ii) would be, regarded  as capable of prejudicial to the security  of  the State.  The language of cl. (a) itself suggests that besides the  act  being  of the kind mentioned in  sub-cl.  (i)  the authority must also be satisfied that the act there set out is one that affects, or is likely to affect adversely public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17  

order.   Under cl. (b), committing mischief, as  defined  in sec. 425 of the Penal Code, by fire or. explosive  substance on  the classes of property specified there, provided  again that  such mischief disturbs or is likely to disturb  public order,  would  fall  under the  definition.   Cl.  (b)  thus requires  two ingredients, (i) that the act in  question  is mischief and is committed by fire or explosive substance  on property  of  the kind set out there, and  (ii)  the  satis- faction  of the authority that the mischief is such that  it affects  or  is  likely to  affect  public  order.   Surely, setting  fire  to an educational institution,  or  a  public building,  reprehensible though it is, could’  not  possibly have been intended to mean putting the security of the State in  jeopardy.   Ordinarily, it might not perhaps  have  been considered  as  an act necessarily disturbing or  likely  to disturb public order, but sec. 3(2) makes it so, in view  of the  extraordinary situation then existing in  West  Bengal, and the: background in which the Act was passed.  The result is that an activity of the kind set out in cl. (b) would  be regarded  as  a  ground  for an  order  under  sub-sec.  (1) provided  the  detaining  authority is  satisfied  that  its effect, actual or likely, is disruption of public order.  It will be noticed that cl. (b) does not say that the effect of such an activity would prejudicially affect the security  of the  State,  and  refers  only  to  public  order.   It  is, therefore,  manifest  that  cl.  (b)  does  not  intend  the invoking of the power under sub-sec. 1 on the ground of  any apprehension to the security of the State. On  the other hand, acts specified in cl. (c)  might  affect public  order, and in some cases, even the security  of  the State,  depending  upon their extent and  potentiality.   An insult  to the National Flag or any other object  of  public veneration  might result in disturbance of public order,  or even   security   of   the   State,   depending   upon   the circumstances,  the degree of veneration for the  object  in question  and  other  such  factors,  In  such  cases,   the detaining  authority would have to ascertain from the  facts and  circumstances  of  each  case  whether  the  act  under consideration was likely to affect one or the other, or even both.  But’ cl. (c) is not intended 388 to mean that every such act must, without anything more,  be deemed  to mean affecting both public order and security  of the State. Activities  set  out in both cls. (d) and (e)  also  require satisfaction  of the authority that they are such that  they have  either disturbed or tend to disturb public order.   It is   again  noticeable  that  both  the  clauses  omit   the expression "security of the State".  Such an omission  must mean  that those activities have a bearing on and relate  to public order, and not to the security of the State.  Subsec. (2), by furnishing a dictionary to the expression "acting in any  manner prejudicial to the security of the State or  the maintenance of public order" enables the detaining authority to  treat  the  specific categories of  activities  set  out therein  as activities capable of affecting the security  of the State or the public order, and to invoke the power if it is satisfied that their effect, actual or likely, is adverse to  either, or both of them, depending upon their extent  or potentiality.  Before, therefore, resorting to sub-sec. (1), the  authority has to be satisfied whether the act  or  acts alleged  against the person concerned fall under one or  the other  ground,  viz., the security of the  State  or  public disorder  or under both.  If the authority decides  to  make the  order, it must state in it whether its satisfaction  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17  

on one or the other ground, or both.  The mere fact that the acts  in question are of any of the kinds mentioned in  cls. (a)  to  (e)  of  sub-sec.  (2)  does  not  mean  that  they automatically  and  without anything more mean acting  in  a manner  prejudicial to the security of the State as well  as maintenance of public order.  It can mean either one or  the other, or even both, depending upon the satisfaction of  the authority as to its effect on one or the other or both. But  it  was said that a construction contrary  to  the  one suggested  above  has been taken in Shyamal Mondal  v.  West Bengal(1) The impugned order there stated that the  District Magistrate  was  satisfied that it was  necessary  that  the petitioner  should  be detained with a view to  prevent  him from acting in any manner prejudicial to the security of the State  or the maintenance of public order.  The grounds  for detention  served on the detenu, as set out at page  674  of the  report, show that the acts alleged against him  and  in respect   of  which  the  District  Magistrate  thought   it necessary  to detain him were (a) an attack on  a  passenger train by the petitioner and his associates, armed with bombs and explosives, with a view to catch their rivals, obviously political  rivals,  and  to kill them,  which  injured  some innocent passengers, (b) attack and assault on the guard  of another train by the petitioner and his associates who  were again armed with bombs and daggers, and (c)  an  attack   by the petitioner and his associates, similarly armed, (1) [1971] 2 S.C.C. 672. 389 on  a  police  party at a railway station.   All  the  three grounds mentioned the District Magistrate’s conclusion  that in each case there was disturbance of public order and panic and  terror  amongst the passengers.  There was  clearly  no reference  to any danger or apprehension to the security  of the  State  as  the  dimensions of  the  acts  alleged  were confined  to the respective local areas, namely,  the  named railway  station.  The contention raised was that  the  acts alleged  against the detenu had, no bearing on the  security of  the  State,  and that the  order  contained,  therefore, extraneous and irrelevant matters, namely, the  apprehension to the security of the State, over which, by the very nature of the acts attributed to the petitioner, and the conclusion stated by the District Magistrate in each of the grounds, he could  never have reached his satisfaction.  The  contention was repelled on the ground "that the act itself furnishes  a dictionary meaning for the two expressions and a perusal  of clauses  (a)  to (e) clearly shows that any of  the  matters referred  to  therein  will  be  both  "prejudicial  to  the security  of the State or the maintenance of public  order". With great respect, such a construction of the definition in sec.  3  (2)  would  mean that any  one  of  the  activities enumerated  in  cls. (a) to (e) would fall  under  both  the grounds,  namely, the security of the State and the  mainte- nance  of  public  order, and therefore, it  would  no+.  be necessary  for the detaining authority to ascertain for  his satisfaction   whether  the  act  for  which  he   considers detention  necessary is of the type or category which is  or tends to be prejudicial to the security of the State or  the maintenance of public order.  In other words, any one of the acts  set  out in cls. (a) to (e) must be regarded  as  pre- judicial  to  both  the  security  of  the  State  and   the maintenance of public order. If  that  is the meaning which is to be  attributed  to  the definition  in sec. 3 (2), the detention order, read in  the light  of the grounds of detention served on the  petitioner there  would appear to be not in accord with the  realities.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17  

For  instance,  an  attack on a train  with  the  object  of seizing  political  rivals  and  to  eliminate  them  would, without doubt, be one that creates public disorder, but such public  disorder affects persons in the area in which it  is disturbed.   So far as the first ground was  concerned,  the attack was on a train.  In the two other grounds, the  areas affected were two railway stations.  Would it, in the  light of these confines, be realistic to 390 say  that the three alleged acts were such that they  placed the  security of the State of West Bengal in danger, or  had even  the ,tendency to do so ? Further, each of the  grounds of detention, as framed by the District Magistrate  himself, contained  his  conclusion  that  in  each  case  there  was disturbance  of public order.  Obviously,  the  satisfaction which  he  had reached was that the alleged acts  were  such that  they  disturbed  or tended to  disturb  public  order. Could  such  acts,  which even  according  to  the  District Magistrate  himself led to public disorder in a  particular area,  be  said to have led to his  satisfaction  that  they affected  or tended to affect adversely the security of  the whole State as well as the maintenance of public order ? If  such a construction of s. 3 (2) were to be accepted,  it must lead to  the result that every activity  falling  under any of the clauses (a)   to (e) must be said to be one which actually  affects or tends ’to affect both the  security  of the State as well as public order. In that case  destruction of a private school, however, small in size, or an office of a village officer, once it fall within sec. 425 of the Penal Code, or committing or instigating an offence falling  under cl.  (d), or cl. (e) affecting or tending to  affect  public order  must  also  be regarded as affecting  or  tending  to affect the security of the State and also as leading to  the satisfaction  of the detaining authority that it does or  is likely to do. What  sub-sec. (2) of sec. 3 does is that it  considers  any onto  affect  either  the security of the  State  or  public order, and bars a challenge that by its very nature it could not possibly lead an,, reasonable person to the satisfaction required  by sub-sec. (1).  Use of or instigating to  use  a lethal weapon for the purpose mentioned in cl. (a) (i) would be a ground for detention if it either affects or is  likely to  affect  adversely either the security of  die  State  or public order, depending upon the potentiality and the extent of the act in question.  Such use or instigation confined to a  small number of persons or area might affect only  public order.   On  a  State-Wide  potentiality,  it  might  affect adversely  even the security of the State.  Indeed,  such  a distinction is expressed in sub-cls. (i) and (ii) of cl. (a) itself.   The same can be said of all other  activities  set out in the other clauses.  Under cl. (c), causing insult  to the national 391 flag  or any other object of public. veneration is  regarded by  that  Clause as acting in a manner  prejudicial  to  the security  of  the State or the maintenance of  public  order depending   upon  the  circumstances,  the  reach   or   the potentiality  of the act in question.  Such an insult  on  a vast  scale simultaneously committed might have, the  effect of  creating an upsurge in the whole State and  thus  affect the  security  of the State, let alone  the public  order. But,  irrespective of such potentiality, the  clause  cannot mean  that such an act by itself and without  anything  more must be deemed to fall under the mischief of both the kinds. The result of accepting such a construction would mean  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17  

once an act falls under any of the clauses (a) to (e), even, if it affects or is likely to affect public order only  must also be, held to affect or likely to affect the security  of the  State, thus, totally wiping off the difference  between the  two concepts and their respective areas  of  influence. That  could not be the intention underlying sub-sec. (2)  of sec. 3. Taking all these circumstances into account together with  the language of sub-sec. (2), the conclusion  must  be that the detaining authority must arrive at and express  its satisfaction that the detenu’s activities, actual or  likely in  future,  were  such that they would  affect  either  the security of the State or the public order or in some  cases, by reason of their reach, even both. In  this  view, the construction urged by  counsel  for  the petitioner has. to be accepted and it must be held that  the use  of the disjunctive ’or’ in the impugned order  rendered the  order of detention vague and indefinite, indicative  of the    detaining   authority   having   merely    reproduced mechanically  the language of sec. 3 (1 ) of the  Act.   The detention,  therefore,  has  to  be held  to  be  bad.   The petition consequently must be accepted and the petitioner be held entitled to his liberty forthwith.  Order accordingly. Khanna, J. This is a petition through jail under article  32 of  the Constitution of India for the issuance of a writ  of habeas corpus by Ananta Mukhi alias Ananta Hari who has been ordered  to  be  detained under section  3  of  West  Bengal (Prevention  of Violent Activities) Act,  1970  (President’s Act No. 19 of 1970), hereinafter referred to as the Act. 392               The order of detention which was made  against               the petitioner reads as under : 11                                ORDER               No. 97/C                         Dated 24-4-71               Whereas  I  am satisfied with respect  to  the               person  known  as Shri Ananta Mukhl  @  Ananta               Hari  son  of Gobardhan @  Gurai  of  Antpara,               Chakbazir,  P. S. Debra, Dt.   Midnapore  that               with  a view to preventing him from acting  in               any manner prejudicial to the security of  the               State  or the maintenance of public order,  it               is necessary so to do, I therefore in exercise               of  the  powers conferred by  sub-section  (1)               read with sub-section (3) of section 3 of  the               West Bengal (Prevention of Violent Activities)               Act,  1970  (President’s Act No. 19  of  1970)               make  this order directing that the said  Shri               Ananta Mukhi @ Ananta Hari be detained.               Given under my hand and Seal of office.               Sd/- District Magistrate               Midnapore Soon after the detention order, the petitioner was found  to be  absconding.   He  was arrested on May 5,  1971  and  was served with the order of detention along with the ground  of detention and the vernacular translation thereof on the same day.  On April 26, 1971 the District Magistrate of Midnapore reported  to  the State Government about the making  of  the detention  order  against the petitioner together  with  the grounds  of detention and other necessary particulars.   The said  report  and particulars were considered by  the  State Government  and  on  May 4, 1971  the  detention  order  was approved by the State Government.  On the same day the State Government  submitted  a report to  the  Central  Government together  with the grounds of detention and other  necessary particulars.   The case of the petitioner was placed by  the State Government before the Advisory Board on June 3,  1971.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17  

In  the  meanwhile,  on May 20, 1971  the  State  Government received  a representation of the petitioner dated  May  13, 1971.   The said representation was considered by the  State Government and was rejected as per order dated June 2, 1971. The  representation of the petitioner was then forwarded  to the  Advisory Board.  The Advisory Board  after  considering the material before it, including the representation of  the petitioner, and after hearing him in person, sent its report to  the  State  Government on July  8,  1971.   Opinion  was expressed  by the Advisory Board that there. was  sufficient cause  for  the detention of the petitioner.   By  an  order dated July 16, 1971 the State Government confirmed the order of detention of the petitioner. 393 The  petition has been resisted by the respondents  and  the affidavit of Shri Manoranjan Dey, Assistant Secretary,  Home (Special)  Department,  Government of West Bengal  has  been filed in opposition to the petition. We have heard Mr. R. K. Jain who has argued the case  amicus curiae on behalf of the petitioner and Mr. G. L. Mukhoti  on behalf of the State.  One of the contentions advanced by Mr. Jain  is  that  the  detaining  authority  has  taken   into consideration  facts extraneous to section 3 of the  Act  in making the order of detention, and therefore the said  order is illegal.  In this respect we find that in the grounds  of detention  which were supplied to the petitioner under  sub- section  (1)  of  section  8  of  the  Act,  the   following particulars were mentioned :               "(1) That on 4-10-69, at about 21-30 hrs., you               along with 50/60 Naxalite supporters being am-               led  with lethal weapons raided the  house  of               Shri  Pulin Bihari Maiidal of Bhuiyabasan,  P.               S.  Debra  in order to kill  him.   The  house               owner  somehow managed to save his life.   You               and  your associates then looted  cash,  orna-               ments,  utensils  and other  properties  worth               about Rs. 10,000 from the house.               (2) That on 8-11-69, at about 20.00 hrs.,  you               along  with 20/22 Naxalite workers armed  with               lethal weapons raided the house of Shri  Bistu               Pada Bhuiya of Radhakantapur, P. S. Debra  and               killed his two brothers named Madan Bhuiya and               Kshudiram  Bhuiya  by sharp  cutting  weapons.               You and your associates also looted  ornaments               and other articles from the house." It would appear from the above that according to the grounds of detention, the petitioner along with 50/60 other  persons armed  with lethal weapons raided the house of Pulin  Bihari Mandal  on  October 4, 1969 at night time and  looted  cash, ornaments,  utensils and other properties worth  Rs.  10,000 from  the house.  It is further alleged that on November  8, 1969  at  about  10 p.m. the  petitioner  along  with  20/22 associates  armed  with lethal weapons raided the  house  of Bistu  Pada  Bhuiya  of Radhakantapur  and  killed  his  two brothers Madan Bhuiya and Kshudiram Bhuiya by sharp  cutting weapons  and also looted ornaments and other  articles  from the house.  The above facts would show that the case against the  petitioner was covered by clause (d) of subsection  (2) of  section  3  of the Act.  Sub-sections  (1)  and  (2)  of section 3 of the Act read as under :               "(1)  The State Government may,  if  satisfied               with respect to any person that with a view to               preventing 394               him  from acting in any manner prejudicial  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17  

             the  security of the State or the  maintenance               of  public  order, it is necessary so  to  do,               make  an order directing that such  person  be               detained.               (2)  For the purposes of sub-section (1),  the               expression  "acting in any manner  prejudicial               to   the   security  of  the  State   or   the               maintenance of public order" means-               (a) using, or instigating any person by words,               either  spoken or written, or by signs  or  by               visible representations or otherwise, to  use,               any lethal weapon-               (i)  to  promote  or propagate  any  cause  or               ideology,  the  promotion  or  propagation  of               which affects, or is likely to affect,  adver-               sely  the security of the State or  the  main-               tenance of public order; or               (ii) to overthrow or to overawe the Government               established by law in India.               Explanation.-In  this clause, ’lethal  weapon"               includes  fire-arms,  explosive  or  corrosive               substances.  swords, spears,daggers, bows  and               arrows; or               (b)   committing mischief, within the  meaning               of  section 425 of the Indian Penal  Code,  by               fire   or  any  explosive  substance  on   any               property of Government ,or any local authority               or  any  corporation owned  or  controlled  by               Government   or   any  University   or   other               educational  institution  or  on  any   public               building.   where  the  commission   of   such               mischief  disturbs, or is likely  to  disturb,               public order; or               (c) causing insult to the Indian National Flag               or  to any other object of public  veneration,               whether  by  mutilating,  damaging,   burning,               defiling,   destroying   or   otherwise,    or               instigating any person to do so.               Explanation.-In this clause, "object of public               veneration" includes any portrait or statue of               an eminent Indian, installed in a public place               as a mark of respect to him or to his memory;               or               (d)  committing, or instigating any person  to               commit,  any offence punishable with death  or               imprisonment  for life or imprisonment  for  a               term  extending to seven years or more or  any               offence  under  the  Arms  Act  1959  or   the               Explosive Substances Act, 1908, where 395               the commission of such offence disturbs, or is               likely to disturb, public order; or               (e)   in  the case of a person referred to  in               clause & (a)    to  (f) of Section 110 of  the               Code  of Criminal Procedure, 1898,  committing               any offence punishable with imprisonment where               the commission of such offence disturbs, or is               likely to disturb, public order." The  first allegation discloses that the petitioner and  his associates   were  guilty  of  dacoity,  while  the   second allegation  shows that at the time of the commission of  the offence  of dacoity, the petitioner and his associates  also murdered two persons.  As such, according to the grounds  of detention,  the  petitioner  and  his  associated  committed offences  punishable with death imprison-  ment for life  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17  

imprisonment  for a term extending to seven years  or  more. The aforesaid activities of the petitioner, according to the affidavit of Shri Manoranjan Dey, disturbed public order and the  petitioner  became  a terror to the  residents  of  the locality.  We see no cogent ground to take a different view. It is obvious that when such a large number of persons,  who were  stated  to  be Naxalite  workers,  armed  with  lethal weapons  commit  the  offence of dacoity  and  dacoity  with murder,  such  offences  disturb or are  likely  to  disturb public  order.  According to subsection (1) of section 3  of the  Act,  the State Government may, if  so  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 the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. Sub-section  (3) empowers a District Magistrate to  exercise the powers, if so satisfied, conferred by sub-section (1). The activities of the petitioner as mentioned in the grounds of detention, in our opinion, show that they were not of  an extraneous character but fell within the expression  "acting in  any manner prejudicial to the security of State  or  the maintenance  of public-order" as defined in sub-section  (2) of section 3 of the Act. The  second  submission  of Mr. Jain is that  the  order  of detention  made by the District Magistrate shows that  he has  not duly ,applied his mind before making the  detention order as according to the order the petitioner was  detained "with  a  view to’Preventing him from acting in  any  manner prejudicial to the security of ,the State or the Maintenance of public order".  It is urged that the District  Magistrate should  have  specified in the order as to  whether  it  was necessary to detain the petitioner from acting in any manner prejudicial to the security of the State or whether it 396 was  necessary  to  detain him from  acting  in  any  manner prejudicial  to  the  maintenance  of  public  order.    The District Magistrate, according to the learned counsel, could have  also,  if  facts so warranted,  passed  an  order  for detention of the petitioner on both the above grounds but he could not make an indefinite order by using the word "or" in the  same  and stating that it was necessary to  detain  the petitioner with a view to preventing him from acting in  any manner  "prejudicial  to the security of the  State  or  the maintenance of public order".  The order, it is stated, is a mechanical reproduction of the statute and shows that  there was  not  due application of the mind before the  order  was made. The  above contention has been resisted by Mr. Mukhoti  and, in  our  opinion, is not well founded.  We  have  reproduced subsection (2) of section 3 of the Act earlier and it  would appear  therefrom that a comprehensive definition  has  been given of the expression "acting in any manner prejudicial to the  security  of  the State or the  maintenance  of  public order".  The definition shows that the whole thing has  been clubbed  together  and  no separate  definitions  have  been given,  one in respect of "acting in any manner  prejudicial to  the  security of the State" and another  in  respect  of "acting  in  any manner prejudicial to  the  maintenance  of public  order".  The various acts which have been  specified in  the  different clauses of sub-section (2) of  section  3 fall within the compendious expression "acting in any manner prejudicial to the security of the State or the  maintenance of  public  order",  and  it  would  not,  in  our  opinion, introduce  an  infirmity  in the detention order  if  it  is stated therein that it is necessary to detain a detenu  with

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17  

a view to prevent him from acting in any manner  prejudicial to  the security of the State or the maintenance  of  Public Order. It  is  no doubt true that if a statute  mentions  different grounds  for  the  detention  of  a  person,  the  order  of detention  should specify distinctly the ground  or  grounds for which the detenu has been ordered to be detained and  it would  not be permissible to state that the detenu has  been ordered to be detained for ground (a) " or" ground (b).  The use of the word "or" would show in cases falling under  such a  statute,  an element of casualness in the making  of  the order  as held by this Court in the case of Jagannath  Misra v.  State  of Orissa.(1) The detenu in that  case  had  been ordered  to be detained under rule 30(1) (b) of the  Defence of  India  Rules,  1962  and  according  to  the  order   of detention, the order had been made with a view to preventing the  detenu  "from acting in any manner prejudicial  to  the defence  of India and civil defence, the public safety,  the maintenance of (1) [1966] 3 S.C.R. 134, 397 public  order,  India’s relations with foreign  powers,  the maintenance  of peaceful conditions in any part of India  or the  efficient conduct of military operations".  This  Court observed :               "There  is another aspect of the  order  which               leads to the same conclusion and  unmistakably               shows  casualness in the making of the  order.               Where  a number of grounds are the basis of  a               detention  order, we would expect the  various               grounds to be joined by the conjunctive  "and"               the use of the disjunctive "or" in such a case               makes no sense.  In the present order  however               we  find  that the disjunctive "or"  has  been               used, showing that the order is more or less a               copy  of s.3 (2) (15) without any  application               of the mind or the authority concerned to  the               grounds which apply in the present case." The above principle would, however, not apply in the case of a person ordered to be detained under the Act with which  we are dealing because of the special definition given in  sub- section  (2)  of  section 3 of the  Act  of  the  expression "acting  in  any manner prejudicial to the security  of  the State or the maintenance of public order".  According to the definition,  each  one of the activities  mentioned  in  the various  clauses of the said sub-section constitutes an  act "prejudicial to the security of the State or the maintenance of  public  order".  The presence of the word  "or"  in  the definition itself tends to show that the use of that word in the  order is not impermissible and there was no element  of casualness or absence of due application of the mind in  the making of the, impugned order. In  the case of Dr. Ram Manohar Lohia v. State of Bihar  and Ors.(1), this Court while expounding the words  "maintenance of public order" observed :               "one has to imagine three concentric circles :               Law  and order represents the  largest  circle               within  which is the next circle  representing               public   order   and   the   smallest   circle               represents the security of the State." The above observations were relied upon by this Court in the subsequent   case   of  Madhu   Limave   v.   Sub-Divisional Magistrate, Monghyr and Ors.(2) and it was observed : (1) [1966] 1 S.C.R. 709.     (2) [1970] 3 S.C.R. 746. 398

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17  

.lm15 "The expression ’public order’ includes absence of; all acts which  are  a danger to the security of the State  and  also acts  which  are,  comprehended  by  the  expression  ’order public’ explained above but not acts which disturb only  the serenity of others." In the case of State of West Bengal v. Ashok Dey & Ors. etc. etc. (Cr.  Apptal No. 217 to 223 of 1971 decided on November 19, 1971) while dealing with different clauses of section 3, this Court observed :               "That, disturbance of public order in a  State               may in turn prejudicially affect its security,               is also undeniable.  Fairly close and rational               nexus   between   these   clauses   and    the               maintenance  of public order and  security  of               the State of West Bengal is writ large on  the               face of these clauses." It  would follow from the above that though  all  activities prejudicial to the security of the State and those which are prejudicial  to  the  maintenance of public  order  are  not identical,  because  of close nexus between  maintenance  of public  order  and security of State, there is bound  to  be some  overlapping.  As the expressions "acts prejudicial  to the  maintenance of public order" and " acts prejudicial  to the security of the State’ have not been separately  defined but  have been put together in the same definition with  the disjunctive "or" in between them, the use of the word "  or" in the detention order would not, in our opinion, so  adver- sely  affect the said order as may justify the  quashing  of that order. We  are  fortified  in  the above  conclusion  by  a  recent decision  of  this Court in the case of  Shyamal  Mondal  v. State  of  West Bengal(1).  In that case  too  the  impugned order  of detention stated that’ the District   Magistrate was  satisfied  that it was necessary that,  the  petitioner should be detained with a view to prevent him from acting in any  manner prejudicial to the security of the State or  the maintenance of public order as provided by section 3  (1),of the Act. Argument was advanced on behalf of the detenu  that the  order  of  detention was  illegal  inasmuch  as   the petitioner had not been informed as to how his (1)  A.I.R. (1971) S.C. 2384. 399 activity  was prejudicial to the security of the State.   It was  pointed  out  that as both  the  matters,  namely,  the maintenance  of public order and the security of  the  State had  been  mentioned in the order of detention, it  must  be taken  that the detaining authority had taken  into  account extraneous  and irrelevant matters in passing the  order  of detention.   It was further submitted that it was not  clear whether the detaining authority passed the order to  prevent the  detenu  from acting in any manner  prejudicial  to  the security  of the State or for maintenance of  public  order. The  above  contentions  were repelled  by  this  Court  and reliance was placed upon the definition given in  subsection (2)  of  section 3 of the expression "acting in  any  manner prejudicial to the security of the State or the  maintenance of public order".  It was observed :               "It will be seen that the Act itself furnishes               a  dictionary meaning for the two  expressions               and  a perusal of clauses (a) to  (e)  clearly               shows  that  any of the  matters  referred  to               therein  will  be  both  "prejudicial  to  the               security  of the State or the  maintenance  of               public order.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17  

             We  are not inclined to accept the  contention               on  behalf of the petitioner that it  is  only               sub-clause (1) of clause (a) of section 3  (2)               which deals with the matters, which  adversely               affects  the security of the State.   In  fact               that  very  sub-clause refers to  the  matters               mentioned therein as affecting the security of               the State or the maintenance of public  order.               Therefore,   in  this  case  the  grounds   of               detention  cannot be held to be vague nor  can               the  order of detention be held to be  invalid               on  the ground that the petitioner  must  have               been detained only to prevent him from  acting                             in any manner prejudicial to the maint enance of               public  order and not to the security  of  the               State." Although  an attempt was made to assail the  correctness  of the  above  view, we find, for reasons  stated  earlier,  no cogent L887SupCI/72 400 ground  to take a different view.  The result is that  the petition fails and is dismissed.                           ORDER In view of the opinion of the majority the Writ Petition  is dismissed. S.C.                            Petition dismissed. 401