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PETITIONER: AYYA ALIAS AYUB

       Vs.

RESPONDENT: STATE OF U.P. & ANR.

DATE OF JUDGMENT25/11/1988

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) MISRA RANGNATH

CITATION:  1989 AIR  364            1988 SCR  Supl. (3) 967  1989 SCC  (1) 374        JT 1988 (4)   489  1988 SCALE  (2)1489  CITATOR INFO :  APL        1989 SC 371  (10)

ACT:      Constitution   of  India  1950:  Article   21--Personal liberty--Greatest  of human  freedoms--Preventive  detention laws--To  be  strictly  construed--Procedural   safeguards-- Meticulous compliance to be insisted upon. %      National Security Act 1980: Sections 3 and 5--detention order--Subjective  satisfaction  of  detaining   authority-- Necessity  for--What  would  be  a  simple  ’law  and  order situation may assume gravity and mischief of ’public  order’ problem.      Statutory Interpretation: Preventive Detention laws  to be strictly construed--meticulous compliance with procedural safeguards to be insisted upon.

HEADNOTE:      The  petitioner-detenu was involved in three  incidents of  offensive  activity. In the first two  incidents  he  is alleged  to  have  damaged  the buses  of  one  Anil  Gautam whereupon  non-cognizable  offences under section  504,  427 I.P.C. were registered against him. In the third incident he is alleged to have caused the death of Anil Gautam by giving him  knife  blows  and  a  case  under  s.  302  I.P.C.  was registered against him.      While the detenu was in judicial custody, the detaining authority,  apprehending  his release on  bail,  passed  the order of detention against him under s. 3(2) of the National Security  Act, 1980. The three grounds of detention  related to the three incidents stated above.      On  behalf of the petitioner in the writ  petition,  it was  contended  that  the order of  detention  was  vitiated because  (i)  the grounds, even assuming to  be  true,  were incapable  in  law  of producing  the  satisfaction  of  any apprehension  in  regard to the maintenance of  the  public- order,  and,  at the worst, did no more than  to  suggest  a possible  ’law and order’ situation; (ii) the object of  the bail  since granted to the detenu; and (iii)  the  detaining authority failed to consider the telegram sent on behalf  of the  petitioner  complaining that the  petitioner  had  been

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                                                 PG NO 967                                                   PG NO 968 taken  away  by the police at 8.00 p.m. earlier  that  night while  the incident of assault on Anil Gautam, as stated  in the third ground, occurred at about 9.10 p.m. that night.      Ramesh  Yadav  v. Distt. Magistrate Etah, AIR  1986  SC 315, relied upon.      On behalf of the State, it was contended that the three acts attributed to the detenu had serious adverse effect  on the  even  tempo  of life in the  locality  and  produced  a "public-order"   problem  and  that  the   detention   fully satisfied all the procedural-safeguards.      Allowing  the writ petition and quashing the  order  of detention it was,      HELD:  (1) Section 5A of the Act provides that where  a person has been detained on two or more grounds, such  order shall be deemed to have been made separately on each of such grounds. The object of sec. 5A is that if any of the grounds is  found  to  be vague,  non-existent,  not  relevant,  not connected with the detenu or is invalid for any other reason whatsoever, it should be open to the detaining-authority  to support the detention order on such ground or grounds as may not be so vitiated. [971B-C]      (2) Personal liberty protected under Article 21 of  the Constitution  is held so sacrosant and so high in the  scale of  constitutional values that in a habeas  corpus  petition the  obligation of the detaining-authority is  not  confined just to meet the specific-grounds of challenge but is one of showing  that  the impugned detention  meticulously  accords with   the  procedure  established  by  law.  The   law   of preventive-detention  are strictly construed and  compliance with  the  procedural  safeguards,  however  technical,   is strictly insisted upon by the courts. [974F-H]      Thomas Pelham Dales’s, case [1881] 6 QBD 376,  referred to.      (3) The compulsions of the primordial need to  maintain order in society, without which the enjoyment of all rights, including the right to  personal liberty, would lose all its meaning is the true justification for the laws of preventive detention.  The  pressures  of  the day  in  regard  to  the imperatives of the security of the state and of public order might  it  is  true require the sacrifice  of  the  personal liberty of individuals. [1975G-H]                                                   PG NO 969      (4)  The actual manner of administration of  preventive detention  is  of  utmost  importance. The  law  has  to  be justified  by  the  genius of its administration  so  as  to strike  the right balance between individual liberty on  the one  hand and the needs of an orderly society on the  other. Adjustments and readjustments are constantly to be made  and reviewed  in maintaining the right balance according to  the pressures of the day. [976C-E]      Ichudevl  v.  Union of India, AIR 1980 SC  1983;  Vijay Narain  Singh  v. State of Bihar, AIR 1984 SC 1334  and  Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762, referred to.      (5)  There are well recognised objective  and  judicial tests   of  the  subjective  satisfaction   for   preventive detention. Amongst other things, the material considered  by the detaining-authority in reaching the satisfaction must be susceptible  of the satisfaction both in law and  in  logic. [978G]      (6) It is true that if the only ground of justification for  the detention is the apprehension that the  detenu  was likely  to  be  enlarged on bail,  the  detention  might  be rendered  infirm.  But  where,  as  here,  there  are  other

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grounds,  the  reference by the detaining authority  to  the prospects of grant of bail could be no more than an emphasis on  the  imminence  of  the  recurrence  of  the   offensive activities of the detenu. [979B-F]      7)  Even a single instance of activity tending to  harm "public-order"   might,   in  the   circumstances   of   its commission,   reasonably   supply  justification   for   the satisfaction  as  to a legitimate apprehension of  a  future repetition of similar activity to the detriment of  "public- order". [979F]      (8)  Even  if a prosecution against a person  fails  or bail  is  granted  an order of  detention  could  be  passed drawing  the  satisfaction  therefore  from  the  facts  and circumstances  in  the  criminal  proceedings.  But  it   is necessary   for  the  detaining  authority  to  resist   the temptation to prefer and substitute, as a matter of  course, the  easy experience of a preventive detention to  the  more cumbe-some one of punitive detention. [979G-H; 980A]      (9). What might be an otherwise simple "law and  order" situation  might  assume  the  gravity  and  mischief  of  a "public-order"  problem  by reason alone of  the  manner  or circumstances  in which or the place at which it is  carried out. [980E]                                                   PG NO 970     Ram  Manohar  Lohia v. State of Bihar AIR 1966  SC  740, referred to.     (10)  The  first  two  grounds  which  pertain  to   the commission of non-cognizable offences have no rational nexus relatable  to the maintenance of public order.  The  alleged attacks were directed against the same individual and,  even according to the police, they constituted merely offences of a non-cognizable nature. [980D-F]      (11)  It  is  not disputed that the  telegram  was  not placed before and considered by the detaining authority.  If a piece of evidence which might reasonably have affected the decision  whether  or not to pass an order of  detention  is excluded  from  consideration, there would be a  failure  of application of mind which, in turn, vitiates the  detention. [981G-H; 982A]

JUDGMENT:      ORlGlNAL JURlSDlCTION: Writ Petition (Crl.) No. 210  of 1988.      (Under Article 32 of the Constitution of India.)      R.K.  Garg. R.S.M. Verma and Shakil Ahmad Syed for  the Petitioner.      V.C.  Mahajan,  Yogeshwar Prasad,  Ms.  A.  Subhashini, Dalveer  Bhandari,  Rachna  Joshi  and  H.K.  Puri  for  the Respondents.      The Judgment  of the Court was delivered by      VENKATACHALIAH, J. By this writ petition under  Article 32 Of the Constitution, the detenu--Ayya alias Ayub, son  of Babu  Khan, residence No. 100, Khernagar, P.S.  Delhi  Gate, Meerut--challenges  the order of detention  dated  28/2/1988 passed  by  the District Magistrate,  Meerut,  ordering  the detention of the petitioner under Sec. 3(2) of the  National Security  Act,  1980, on the said  authority’s  satisfaction that  such detention is necessary with a view to  preventing petitioner  from  acting  in a  manner  prejudicial  to  the maintenance  of  the  "public-order". At  the  time  of  the passing  of the order, petitioner was already  in  judicial- custody  in connection with a criminal  prosecution  arising out  of  the incident referred to in one of the  grounds  of

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detention.      2.  Section 3(2) of the Act provides, inter alia,  that the Central Government or the State Government, may make  an order with respect to any person for purposes of  preventing him  from acting in a manner prejudicial to the  maintenance                                                   PG NO 971 of the public-order. The sub-section provides for  detention on  certain  other  grounds which are  not  germane  to  the present  matter  as  the  avowed  object  of  the   impugned detention  is in relation to, and for the purposes  of,  the maintenance  of  public  order.  Sec. 5A  of  the  Act  also provides  that  where a person has been detained on  two  or more  grounds, such order shall be deemed to have been  made separately on each of such grounds. The object of Sec. 5A is that  if  any  of the grounds is found  to  be  vague,  non- existent, not relevant, not connected with the detenu or  is invalid  for any other reason whatsoever, it should be  open to the detaining-authority to support the detention order on such ground or grounds as may not be so vitiated.      3. We have heard Shri R.K. Garg, learned Senior Counsel for the petitioner and Shri Yogeshwar Prasad, learned Senior Counsel for the detaining-authority.      Shri  Garg  strenuously  contended  that  the  impugned detention  is an instance of a demonstrable abuse  of  power and  the  grounds  are wholly ultra vires of  the  power  of detention  in  that--quite  apart from the  falsity  of  the allegations  and other legal infirmities--the grounds,  even assuming  to be true, are incapable in law of producing  the satisfaction   of   any  apprehension  in  regard   to   the maintenance of the public-order. The grounds, at the  worst, Learned  Counsel  contends  do no more  than  to  suggest  a possible ’law and order’ situation and not a  ’public-order’ situation. The detention, it is urged, is also vitiated by a non-application of mind by an omission to consider  material capable of influencing the satisfaction.      Shri  Yogeshwar Prasad, however, sought to support  the order  of  detention,  relying  upon  the  records  of   the proceedings  and  the  affidavit  filed  by  the  detaining- authority.  The  concerned police officers have  also  filed their counter-affidavits.      4. In order to appreciate the contentions urged at  the hearing,  it is necessary to advert to the three grounds  on which  the  satisfaction  on  the  part  of  the  detaining- authority  for the need for the detention was reached.  They are:      1.  ’That on 6.2.88 at Ghursal Mor. near Jamaniya  Bagh R.T.O.  Road, P.S. Railway Road at 3.50 P.M. you along  with your  other companions stopped Mini Bus No. U.S.Q. 9278  and you  immediately started breaking the glass screens  of  the                                                   PG NO 972 bus  with an iron rod and your companions hurled  brick-bats at the glasses of the bus and extended abuses to the driver. On  being  told  about above incident  by  Shri  Chandrapal, Driver  of  Mini  Bus,  Shri  Anil  Gautam  made  a  written complaint  on  the  basis of which a report No.  8  of  non- cognizable  offence  was registered u/s 504, 427  of  I.P.C. Your  aforesaid  misdeed caused fear and  terror  among  the common public and in this way you committed an act which  is prejudicial to the maintenance of public order."      "2. That, on 13.2.1988 at about 11.45 P.M. in front  of Faize-e-Aam  Inter  College,  Meerut on the  open  road  you alongwith  your  other companions displayed  "gundaism"  and stopped  Bus  No. U.S.N. 8377 which was going  from  Medical College to City Station and you had broken the glass screens of the said bus and abused Shri Balram the driver and  Vipin

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the conductor of the bus, which caused fear and terror among the general public. On the basis of the information given by Shri  Anil  Gautam  the Report  No.  15  for  non-cognizable offence u/s 427, 504 of I.P.C. was registered at P.S.  Delhi Gate.  In  this  way you acted in such  a  manner  which  is prejudical to the maintenance of public order."      3. That, on 18.2.1988 near Caltex Petrol Pump on Delhi- Muzzafar  Nagar  Road  at about 9.10 O’clock  at  night  you alongwith  your other three companions reached at  the  Book stall situated at the aforesaid petrol pump, and holding him by  neck you pulled Shri Anil the book seller and you,  with intent to kill him gave blows of knife on his neck and chest and  you  also assaulted with knife on other  parts  of  his body, because of which the nearby shops were closed down due to  fear  and  terror  caused by you  and  the  people  were alarmed.  You  committed the above misdeed because  on  30th December  1987 at about 7.00 P.M. you had teased a girl  who was  the daughter of an Army Major, while she was  buying  a magazine from the aforesaid Book-stall and this was objected by  Mr. Anil but you did not refrain from teasing the  girl, then  Anil had beaten you. On which you and your  companions                                                   PG NO 973 threatened  Mr. Anil that this Enmity will be too  expensive for him. On the basis of a written information given by  Mr. Brij  Mohan,  Crime  No. 59 under  Section  307  I.P.C.  was registered  against  you which, after the death  of  injured Anil  in  the Hospital, was covered into  an  offence  under Section   302   of  I.P.C.  and  this   offence   is   under investigation.  Your aforesaid misdeed has caused  fear  and terror  among  the general public and in this way  you  have committed an act which is prejudicial to the maintenance  of public order.      At  present you are confined in District Jail,  Meerut, and  you  are trying to get released on bail  and  there  is every possibility of you being released on bail."                                         (Emphasis Supplied)      Shri  Garg submitted that the first two grounds  which, even  according to the detaining-authority, constitute  non- cognizable offences negate th6e requisite degree or  gravity of  the  activity  which  could reasonably  be  said  to  be productive  of  a  "public-order"  situation.  The   adhered activities  are liable to be dealt with in  accordance  with the  ordinary law of the land and that in both the  cases  a certain  Anil Gautam was the complainant and the attack  was against  the  bus belonging to him,  it  being  incidentally suggested that the driver and the conductor of the bus  were also  released.  It  was not a part  of  the  grounds,  says learned  counsel, that there were passengers in the  bus  at the  time  and  conduct of the  petitioner  caused  a  scare amongst them. The inference drawn by the detaining-authority that the activities referred to in grounds (I) and (II)  did create  a  "public-order" situation is  therefore,  contends counsel,  vitiated by a lack of rational nexus  between  the activity  attributed to the petitioner and a  "public-order" situation.  Learned counsel submitted that the  satisfaction to be reached by the detaining-authority, subjective  though it  be  must  rest on material which is capable  in  law  of producing the satisfaction and the concept of "public-order" is what law understands and recognises as such and not  what the detaining-authority misunderstands it to be.      5. In regard to the third ground of detention,  learned counsel said, the petitioner was taken into custody at  8.00 P.M. on 18.2.1988 and that the wireless message sent at 8.07 P.M. by the Mobile Van to the Circle Police Officer and  the Superintendent  of Police had specifically referred  to  the

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attack on Anil Gautam and had clearly omitted to mention the                                                   PG NO 974 name of the petitioner and the alleged witnesses. Shri  Garg submitted  that  the  allegations that the  attack  on  Anil Gautam  at 9.10 PM that day, as now asserted in  Ground  No. III  would  stand  disproved  if  the  original   "Log-Book" recording  the  wireless-messages  had  been  produced.   He submitted  the sheaf of loose sheets purporting to be  "Log- Book" produced before this Court was not the original  "Log- Book".  These loose-sheets, it is urged, had been  discarded by the Learned Sessions Judge who had since granted Bail  to the petitioner. Learned Counsel submitted that the object of the  present detention was avowedly to render  nugatory  the benefit of the Bail. Shri Garg relied upon the pronouncement of this Court in Ramesh Yadav v. Distt Magistrate Etah,  AIR 1986  SC  315, to contend that if the detention  is  ordered because  the  detaining-authority was apprehensive  that  in case  the detenu was released on bail he would carry on  his criminal activity, it would not be a proper exercise of  the power to detain.      6.  Shri  Garg submitted that at 12.30 A.M.  that  very night, on 18.2.1988 a certain Mirazuddin acting on behalf of the   petitioner,  had  sent  a  telegram  to   the   Senior Superintendent  of  Police,  Meerut,  complaining  that  the petitioner had bee6n taken away by the police at        8.00 PM  earlier  that  night.  Shri  Garg  submitted  that  this document  which improbablised petitioner’s participation  in the  incident alleged at 9.10 P.M. that night ought to  have been placed before and considered by the detaining-authority and a non-consideration of this document vitiated the  order of detention for non-application of mind.      Shri  Yogeshwar  Prasad submitted that the  three  acts attributed  to the detenu had serious adverse effect on  the even  tempo of life in the locality and produced a  ’public- order’ problem and that the detentionfully satisfied all the procedural-safeguards.      7.  Personal liberty protected under Article 21 of  the Constitution is held so sacrosanct and so high in the  scale of  constitutional values       that this Court  has  shown great anxiety for its protection and wherever a petition for writ  of habeas-corpus is brought-up, it has been held  that the  obligation of the detaining-authority is  not  confined just to meet the specific-grounds of challenge but is one of showing  that  the impugned detention  meticulously  accords with  the procedure established by law. Indeed  the  English Courts  a century ago echoed the stringency and  concern  of this  judicial vigilance in matters of personal  liberty  in the following words:                                                   PG NO 975      "Then comes the question upon the habeas corpus. It  is a  general  rule, which has always been acted  upon  by  the Courts   of  England,  that  if  any  person  procures   the imprisonment  of another he must take care to do  by  steps, all  of which are entirely regular, and that if he fails  to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue."  [Thomas Pelham Dales’ case, (1881) 6 QBD 376 at page 461].      It  has  been  said that the  history  of  liberty  has largely  been  the  history  of  observance  of   procedural safeguards.   The   procedural  sinews   strengthening   the substance  of the right to move the court against  executive invasion  of  personal  liberty  and  the  due  dispatch  of judicial-business  touching  violations  of  this  great  is stressed in the words of Lord Dinning:      "Whenever  one  of the King’s Judges  takes  his  seat,

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there  is  one  application  which  by  long  tradition  has priority over all others. Counsel has but to say ’My Lord, l have  an  application  which concerns  the  liberty  of  the subject’ and forth-with the Judge will put all other matters aside  and hear it. It may be an application for a  writ  of habeas  corpus,  or an application for bail,  but,  whatever form it takes, it is heard first."      [Freedom under the Law, Hamlyn Lectures, 1949]      8.  Personal  liberty,  is  by  every  reckoning,   the greatest  of  human  freedoms and the  laws  of  preventive- detention are strictly construed and a meticulous compliance with  the  procedural  safeguards,  however  technical,   is strictly insisted upon by the courts. The law on the  matter did not start on a clean state. The power of courts  against the harsh incongruities and unpredictabilities of preventive detention  is  not a merely ’a page of history but  a  whole volume.  The compulsions of the primordial need to  maintain order in society. without which the enjoyment of all rights, including  the  right to personal liberty,  would  lose  all their  meaning are the true justifications for the  laws  of preventive detention. The pressures of the day in regard  to the imperatives of the security of the State and of  public- order  might.  it  is true, require  the  sacrifice  of  the personal-liberty  of  individuals.  L˜ws  that  provide  for preventive  detention  posit that  an  individual’s  conduct prejudicial to the maintenance of public-order or to  the security of State provides grounds for a satisfaction for  a reasonable    prognostication   of   a    possible    future                                                   PG NO 976 manifestations  of similar propensities on the part  of  the offender.  This jurisdiction has been called a  jurisdiction of  suspicion; but the compulsions of the very  preservation of  the  values  of freedom, of democratic  society  and  of social  order  might  compel  a  curtailment  of  individual liberty.  "To lose our country by a scrupulous adherence  to the written law" said Thomas Jeferrson "would be to lose the law  itself,  with  life,  liberty and  all  those  who  are enjoying  with us; thus absurdly sacrificing the end to  the needs." This is, no doubt, the theoretical justification for the law enabling preventive detention.      But  the actual manner of administration of the law  of preventive detention is of utmost importance. The law has to be  justified by the genius of its administration so  as  to strike  the right balance between individual-liberty on  the one  hand and the needs of an orderly society on the  other. But  the  realities  of executive  excesses  in  the  actual enforcement  of  the law have put the courts on  the  alert, ever-ready to intervene and confine the power within  strict limits  of  the  law both substantive  and  procedural.  The paradigms and value judgments of the maintenance of a  right balance are not static but vary according as the  "pressures of   the  day"  and  according  as  the  intensity  of   the imperatives that justify both the need for and the extent of the  curtailment to be individual liberty.  Adjustments  and readjustments are constantly to be made and reviewed. No law is an end in itself. The "inn that shelters for the night is not  journey’s end and the law, like the traveller, must be ready for the morrow."      As to the approach to such laws which deprive  personal liberty  without trial, the libertarian judicial  faith  has made   its  choice  between  the  pragmatic  view  and   the idealistic   or  doctrinaire  view.  The  approach  to   the curtailment  of  personal  liberty  which  is  an  axiom  of democratic faith and of all civilised like is an  idealistic one for, loss or personal liberty deprives a man of all that

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is worth living for and builds up deep resentments.  Liberty belongs  what  correspond  to man’s  inmost  self.  Of  this idealistic  view  in the judicial traditions  of  the  free- world, Justice Dougla said:      "Faith in America is faith in her free institutions  or it  is  nothing.  The Constitution  we  adopted  launched  a daring and bold experiment. Under that compact we agreed  to tolerate  even  ideas we despise. We also  agreed  never  to prosecute people merely for their ideas or beliefs ......."      [See: On Misconception of the Judicial Function and the                                                   PG NO 977      Responsibility  of the Bar, Columbia Law  Review,  Vol. 59, p. 232]      Judge Stanley H. Fuld of the New York Court of  Appeals said:      "It  is a delusion to think that the nation’s  security is  advanced  by the sacrifice of  the  individual’s  basic- liberty. The fears and doubts of the moment may loom  large, but we lose more than we gain if we counter with a resort to alian   procedures   or   with   a   denial   of   essential constitutional guarantees. "      [Quoted by Justice Douglas at p. 233--On  Misconception of the Judicial Function and the Responsibility of the  Bar; Columbia Law Review Vol. 59]      It  was a part of the American judicial faith that  the Constitution and Nation are one and that it was not possible to  believe  that  national security did  require  what  the Constitution appeared to condemn.      Under  our Constitution also the mandate is  clear  and the  envoy  is  left under no  dilemma.  The  constitutional philosophy  of personal liberty is an idealistic  view,  the curtailment  of  liberty for reasons  of  State’s  security, public-order,  disruption  of national  economic  discipline etc. being envisaged as a necessary evil to be  administered under strict Constitutional restrictions.      In  Ichudevi  v.  Union  of lndia  AIR  1980  SC  1983, Bhagwati J. spoke of this Judicial commitment.      .... The Court has always regarded personal liberty  as the  most  precious  possession of mankind  and  refused  to tolerate  illegal detention, regardless of the  social  cost involved in the release of a possible renegade.                                              (page 1988)                                      (Emphasis Supplied)      "This  is an area where the court has been most  strict and scrupulous in ensuring observance with the  requirements of  the  law,  and even where a requirement of  the  law  is breached  in  the  slightest  measure,  the  court  has  not hesitated to strike down the order of detention ...."                                              (P. 1988)                                    (Emphasis Supplied)                                                   PG NO 978     In  Vijay  Narain Singh v. State of Bihar, AIR  1984  SC 1334  Justice Chinnappa Reddy J. in his concurring  majority view said:      "....I  do not agree with the view that those  who  are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a pro- position. Our Constitution does not give a carte blanche  to any  organ  of  the State to be the  sole  arbiter  in  such matters ...."                                                   (p. 1336) "....  There  are  two sentinels, one  at  either  end.  The legislature  is required to make the law circumscribing  the limits within which persons may be preventively detained and

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providing for the safeguards prescribed by the  Constitution and  the  courts  are required to  examine,  when  demanded, whether  there  has been any excessive detention,  that  is, whether   the  limits  set  by  the  Constitution  and   the legislature have been transgressed . . ."                                                   ( p 1336)      In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766, it was observed:     "It  is  not  permissible in  matters  relating  to  the personal  liberty and freedom of a citizen to take either  a liberal or a generous view of the lapses on the part of  the officers .......".      10.  There are well recognised objective  and  judicial tests   of  the  subjective  satisfaction   for   preventive detention. Amongst other things, the material considered  by the detaining-authority in reaching the satisfaction must be susceptible  of the satisfaction both in law and  in  logic. The tests are the usual administrative law tests where power is couched in subjective language. There is, of course,  the requisite  emphasis  in  the context  of  personal  liberty. Indeed  the purpose of public-law and the public law  courts is  to  discipline power and strike at  the  illegality  and unfairness   of  Government  wherever  it  is   found.   The sufficiency  of  the evidentiary material or the  degree  of probative criteria for the satisfaction for detention is  of course in the domain of the detaining-authority.                                                   PG NO 979      To lose sight of the real and clear distinction between the  "public-order" and "law and order" might lead,  in  the process   of   obliteration  of  their  outlines,   to   the impermissible engrafting of the latter on the former.      11. In the present case, we are not, however, impressed with  the  submission of Shri Garg that  the  detention  was solely  for the purpose of rendering nugatory the  order  of bail,  the grant of which the detaining-authority  had  then considered  quite  imminent.  It is true that  if  the  only ground   or   justification  for  the   detention   is   the apprehension  that the detenu was likely to be  enlarged  on bail,  the  detention  might be rendered  infirm.  Sri  Garg relied  upon  the following observations in  Ramesh  Yadav’s case (supra):      "On   a  reading  of  the  grounds,  particularly   the paragraph  which we have extracted above, it is  clear  that the order of detention was passed as the detaining authority was  apprehensive  that in case the detenu was  released  on bail he would again carry on his criminal activities in  the area.  If  the apprehension of the detaining  authority  was true the bail application had to be opposed and in case bail was  granted,  challenge against that order in  the  higher6 forum had to be raised. Merely on the ground that an accused in  detention  as an undertrial prisoner was likely  to  get bail  an order of detention under the National Security  Act should not ordinarily be passed ......." [AIR 1986 SC 315 at 316]      But,  where,  as  here, there are  other  grounds,  the reference  by  the detaining authority to the  prospects  of grant  of  bail  could be no more than an  emphasis  on  the imminence  of the recurrence of the offensive activities  of the  detenu. Even a single instance of activity  tending  to harm  "public-order"  might,  in the  circumstances  of  its commission,   reasonably   supply  justification   for   the satisfaction  as  to a legitimate apprehension of  a  future repetition of similar activity to the detriment of  "public- order". Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against

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a person already in judicial custody. Even if a  prosecution against  a  person  fails or bail is  granted  an  order  of detention could be passed drawing the satisfaction  therefor from  the  facts and circumstances of each case. But  it  is necessary   for  the  detaining  authority  to  resist   the temptation to prefer and substitute, as a matter of course,                                                   PG NO 980 the  easy expedience of a preventive detention to  the  more cumbersome  one  of  punitive  detention.  In  Vijay  Narain Singh’s case (supra) this Court said:      "   .........It  is  well  settled  that  the  law   of preventive  detention is a hard law and therefore it  should be strictly construed. Care should be taken that the liberty of  a  person  is  not jeopardised  unless  his  case  falls squarely  within the four corners of the relevant  law.  The Law  of  preventive detention should not be used  merely  to clip  the wings of an accused who is involved in a  criminal prosecution..."                                               (P. 1345)      "  .....  When  a  person is  enlarged  on  bail  by  a competent criminal court, great caution should be  exercised in  scrutinising  the  validity of an  order  of  preventive detention which is based on the very same charge which is to be tried by the criminal court ." ( P. 1345)      12.  However,  we are persuaded to the  view  that  the contention  of Shri Garg that, the first two  grounds  which pertain to the commission of non-cognizable offences have no rational nexus relatable to the maintenance of public  order is  to be accepted. It is true that the acts themselves,  in relation  to  their  effect  on  public-order  which   might otherwise  be free from the vice of  affecting  public-order might  assume  a sinister colour and significance  from  the circumstances  under and the manner in which they are  done. What might be an otherwise simple "law and order"  situation might  assume the gravity and mischief of  a  "public-order" problem  by reason alone of the manner or  circumstances  in which  or  the place at which it is carried out.  These  are graphically  dealt with by Hidayatullah, J. in  Ram  Manohar Lohia  v.  State of Bihar, AIR 1966 SC 740. In  the  present case  the  alleged attacks were directed directed  the  same individual,  a certain Anil Gautam, and, even  according  to the  police,  they  constituted Merely offences  of  a  non- cognizable nature. in the facts of the case, it is difficult to impart to these acts, which were liable to be dealt  with under  the  ordinary  laws of  the  land,  a  "public-order" dimension  within  the meaning of and for  purposes  of  the extra-ordinary law of preventive detention.       13. So far as the third ground is concerned it  is  no doubt a serious charge. The victim is the same Anil  Gautam. The  Sessions  Court has since enlarged  the  petitioner  on bail. It is alleged that the attack, in the manner in  which                                                   PG NO 981 it  was made, spread tremors of fear in A the  neighbourhood and  the  shop-keeper  in the  vicinity  pulled  down  their shutters.     On the contrary, Petitioner avers that he had been taken into  custody earlier at 8.00 P.M. and his alleged  presence at  the scene of occurance, which admittedly took  place  at 9.10  P.M., was wholly imaginary and concocted.  The  police version is that the arrest was  made only at 10.00 A.M.  the next-day.  These matters are to be decided at the  sessions- trial. We cannot decide them here. It is not also  necessary to go  into  the  controversy about the wireless message  or the  genuineness of the  "Log-Book"  recording the  message. The  Inspector General of Police. Meerut Zone and  the  Home

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Secretary  have  stated n their affidavits that  the  extant practice  is  to keep the "Log-Book" in  the form  of  loose sheets stapled together. The practice might perhaps required improvement; but it is not necessary to say that the  sheets produced are not genuine. Learned Sessions Judge at the time of  gran  of  bail did not,  however,  accept  them  as  the original log-book’     It is equally unnecessary to decide whether the telegram dispatched   by  Mirazuddin   was  at  12.30  mid-night   on 18.2.1988  or as suggested by the Respondents at 12.30  noon on 19.2.1988 It is  extremely probable that it was sent  not at 12.30 mid night as claimed by the petitioner. but only at 12.30  noon  on 19.2.1988   as suggested  by  Sri  Yogeshwar Prasad. But it cannot be disputed that   such a telegram was sent.  This  telegram asserts, for whatever  it  was  worth, that  petitioner  was  taken into custody at  8.00  P.M.  on 18.2.1988.  The contention  of Shri Garg is  that  the  non- consideration  of this telegram, which had a bearing on  the complicity  or otherwise of  the  petitioner in the  alleged offence  vitiates   the detention  for   non-application  of mind.  The detaining  authority in its affidavit says:     ".....Deponent  is  not in a position to say  about  the facts   of the telegram. It might have been given  in  pesh- bandi."     What weight the contents and assertions in the  telegram should carry is an altogether a different  matter. It is not disputed  that  the    telegram was not  placed  before  and considered   by  the  detaining-authority.  There  would  be vitiation of the detention on grounds of non-application, of mind if a  piece of evidence, which was relevant though  not binding,  had  not  been considered at all. If  a  piece  of evidence  which might reasonably have affected the  decision whether  or  not to pass an order of detention  is  excluded from consideration. there  would be a failure of application                                                   PG NO 982 of  mind  which,  in  turn,  vitiates  the   detention.  The detaining-authority  might very well have come to  the  same conclusion after considering this material; but in the facts of  the case the omission to consider the  material  assumes materiality.     14.  In the result, for the foregoing reasons, the  writ petition is  allowed, the order of detention impugned in the petition quashed and the petitioner is directed to be set at liberty forthwith, unless he is held in custody pursuant  to any other order under any lawful authority. No costs. R.S.S.  Petition allowed.