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PETITIONER: BHUPAL CHANDRA GHOSH

       Vs.

RESPONDENT: ARIF ALI AND OTHERS

DATE OF JUDGMENT15/11/1973

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. CHANDRACHUD, Y.V. GOSWAMI, P.K.

CITATION:  1974 AIR  255            1974 SCR  (2) 277  1974 SCC  (1) 253  CITATOR INFO :  F          1974 SC 258  (4)  R          1980 SC 494  (10)

ACT: Maintenance  of Internal Security Act, 1971 S. 3  (2)  read with  section 3 (1) (a) (ii) "Maintenance of Public  Order"- Some  of the grounds have no relation to public  order-Order of detention it vitiated.

HEADNOTE: The  petitioner was detained under s. 3 (2) read with  S.  3 (1)  (a) (ii) of the Maintenance of Internal  Security  Act, 1971 with a view to preventing him from acting in any manner prejudicial to the "maintenance of public order".  In one of the  grounds  it  was stated that the  petitioner  "posed  a serious  threat  to  the  security  of  the  State  and  the maintenance of public order." The petitioner contended  that the  order of detention was bad because some of the  grounds had no relevance to public order. Allowing the petition, HELD : (1) The order of detention was invalid.  Five out  of 16 grounds are not shown to have any rational relation  with public order. some of them may perhaps have some  connection with  "law and order".  But it has been held in a series  of decisions of this Court that the Concept of law and order is not  identical  with the concept of  public  order.   Public order is an aggravated form of disturbance of public  peace. It  affects  the  general  current  of  public  life.    The detention order was passed on the subjective satisfaction of the  detaining authority and it was not possible  to  assess how  far  these  five grounds had swayed  the  mind  of  the District  Magistrate  and tilted his  judgment  against  the detenu.   To  the intertwining of  relevant  and  irrelevant JUDGMENT: and the whole order of detention would fall down.[279B-C] State ofBombay  v. Atma Ram Sridhar Vaidya  [1951]  S.C.R. 167, distinguished. (2) The   detention order was passed in order to prevent the petitioner  from  acting in any manner  prejudicial  to  the maintenance of public order.  It was not made with a view to preventing him from acting prejudicially to the security  of

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the  State.   But in the grounds of detention  the  District Magistrate  specifically  relied on security  of  State.   A conjoint  reading of the detention order and the grounds  of detention was suggestive of the inference that the  District Magistrate had either no information of the grounds relevant to  the security of the State at the time of the passing  of the detention order, or that, if he had information of those grounds, he did not believe them to be factually correct and accordingly did not bottom his detention order on them.   In the  first  event.  he could not now seek  to  buttress  his detention  order  by those grounds,  because  the  detention order was made for the maintenance of public order only;  in the  second  event  also, those grounds  should  be  totally ignored.   If  he did not think it proper to  rely  on  them while  making the detention order, he could not deploy  them at  a later date as another string to the how.  There  is  a difference  between public order and security of the  State. Every breach of public order will not necessarily affect the security of the State. [279F-G] Dr.  Ram Manohar Lohia v. State of Bihar, [1966] 1 S. C.  R. 109  at  page  746, Shibhan Lal Saxena v.  The  State  Uttar Pradesh,  [1954]  S. C. R. 41 8,at p. 422, Motilal  Jain  v. State  of  Bihar,  [1968] 3 S.C.R. 587  at  p.  593  Pushkar Mukherjee  V. The State of West Bengal, [1969] 2 S.C.R.  635 Ananta Mukhi & Ananta Hari v. State of West Bengal, [1972] 3 S.C.R.  379 and Masood Alam v. Union of India,  A.I.R.  1973 S.C. 897, referred to.

& ORIGINAL WRIT JURISDICTION : Writ Petition No. 1520 of 1973. Under Article 32 of the Constitution for issue of a Writ  in the nature of habeas corpus. 2 78 D.   N. Mukherji ’and Rathin Das for the petitioner. S.   N. Chaudhury, for the respondents. The Judgment of the Court was delivered by DWIVEDI,  J.  It is a petition for a writ in the  nature  of habeas  corpus  under  Art. 32  of  the  Constitution.   The petitioner  alleges that he is the acting President  of  the Council  of the Displaced Bengalees living in the  State  of Assam.    On  April  2,  1973,  the   District   Magistrate, Sibasagar,  Jorhat in the said State, passed an order  under S.  3(2)  read with.s. 3(1) (a)(ii) of  the  Maintenance  of Internal Security Act, 1971 for detaining the petitioner  in the Jorhat jail.  Accordingly, he was so detained.  On April 3,  1973  the  District Magistrate  served  the  grounds  of detention  on him.  The State Government approved the  order of detention. The  petition  was heard by us on October 30,  1973.   After hearing counsel for the parties we were of opinion that  the petition should be allowed.  Accordingly, we passed an order directing  the  release of the petitioner.  The  reasons  in support of the order are now set forth in this judgment. The  District Magistrate has detained the petitioner with  a view to preventing him from acting in any manner prejudicial to  "maintenance of public order." The sole argument  before us is that some of the grounds served on him by the District Magistrate have got no relevance to public order, Grounds of detention are. 16 in number Some of the grounds do relate to public order, and it is not necessary to set them out  here. We shall mention only such grounds as, in our opinion,  have no relevance to public order.  Those grounds are               (2)That he spoke ill of the State  Government,

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             and the Assamese people in a camera meeting in               the  last  part  of March, 1961  held  at  the               residence   of  Shri  Hemendra  kishore   Roy,               Jorhat.  Then he was Secretary of the  Refugee               Association, Assam.               (3)   That  he  issued a  Press  Statement  on               6-12-1971  on  the  Pak  atrocities  in  East-               Pakistan (Bangla Desh) blaming General  Yahaya               Khan  and  the American  Government.   Another               telegram  was sent on 22-11-71 to Mr.  Kenneth               Keating, American Ambassador in India, to stop               mass killing in East Pakistan.               (6)   That he challenged the census  operation               in  Assam  and  stated  that  the  figures  of               Assamese population were shown highly inflated               at the cost of Bengalis.               (11)  That he sent a telegram on 10-10-1972 to               the  Prime  Minister, India  on  the  language               movement  in  Assam.   The  contents  of   the               telegram were highly exaggerated and false.               (12)  That   he   sent   another   exaggerated               telegram  on  requesting  31-12-1972  to   the               Prime,  Minister, India her not to enter  into               any language settlement with               2 79               Cachar loaders.  He signed the telegram as the               Councils acting President." Counsel  for the respondent could not satisfy us as  to  how any  one  of  these,  five grounds  could  have  a  rational connection with public order.  Some of them may perhaps have some connection with "law and order".  But it has been  held in  a series of decisions of this Court that the concept  of law  and order is not identical with the concept  of  public order.  Public order is an aggravated form of disturbance of public  peace.   It affects the general  current  of  public life.   In the result, five out of 16 grounds are not  shown to  have any rational relation with public order.  In  other words,  one  third  of  the,  grounds  are  irrelevant,  The detention  order is based on the subjective satisfaction  of the  detaining authority.  Accordingly we cannot assess  how far these five grounds have swayed the mind of the  District Magistrate  and tilted his judgment against the detenu.   To the  intertwining  of  relevant and  irrelevant  grounds  of detention  the  rule of severally would not apply,  and  the whole order of detention will fall down. There  is yet another aspect which We cannot  overlook.   As already  stated, the detention order is passed in  order  to prevent the petitioner from acting in any manner Dieiudicial to  the  maintenance of public order.   Professedly,  it  is not  made  with  a  view  to  preventing  him-  from  acting prejudicially  to  the security of the State.   But  in  the grounds  of detention, the District Magistrate  specifically relies  on  security  of  State.   He  says  :  "the   above prejudicial activities. r........ and the sinister design of dislodging  the  present administration  and  hate  Assamese campaign  has posed a serious threat to the security of  the State  and the ’maintenance of public order in the  District of  Sibasagar."  Grounds  Nos. 4, 8, 9  and  16  are  indeed connected with the, security of the State. A conjoint reading of the detention order and the grounds of detention is suggestive of the inference that the.  District Magistrate had either no information of the grounds relevant to  the security of the State at the time of the passing  of the detention order, or that, if he had information of those grounds, he did not believe them to be factually correct and

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accordingly did not bottom his detention order on them.   In the  first event, he cannot now seek to buttress his  deten- tion order by those grounds, because the detention order  is made for the maintenance of public order only; in the second event also, those grounds should be totally ignored.  If he, did  not  think it proper to rely on them while  making  the detention order, he cannot deploy them now as another string to  the  bow There is difference between  public  order  and security  of the State.  Every breach of public  order  will not necessarily affect the security of the State. In  Dr. Ram Manohar Lohia v. State of Bihar(1)  Hidayatullah J.   has expressed this difference thus:               "One has to imagine three concentric  circles.               Law  and order represents the  largest  circle               within,  which  is  the  next  circle  resting               public order and the smallest circle re-               (1)[1966] 1 S.C.R. 709 at page 746.               -522 SCI/74               280               presents  security of State.  It is then  easy               to  see that art act may affect law and  order               but not public order just as an act may affect               public order but not security of the State." Turning  to cases cited at the Bar, The State of  Bombay  v. Atma Ram Sridhar Vaidya(1) is distinguishable on facts.   It is  not  concerned  with the question of  relevancy  of  the grounds-of detention.  In Shibhan Lal Saxena v. The State of Uttar Pradesh(2) this Court observed               "The detaining authority gave here two grounds               for detaining the petitioner.  We can  neither               decide whether these grounds are good or  bad,               nor  can we attempt to assess in. what  manner               and  to  what extent each  of  these’  grounds               operated  on  the  mind  of  the   appropriate               authority  and contributed to the creation  of               the  satisfaction  on the basis of  Which  the               detention  order  was made.  To say  that  the               other  ground, which still remains,  is  quite               sufficient  to sustain the order would  be  to               substitute decision of the executive authority               which   is  against  the  legislative   policy               underlying  the  statute.  In  such  cases  we               think,  the position would be the same  as  if               one of these two ground was irrelevant for the               purposes of the Act or was wholly illusory and               this  would vitiate the detention order  as  a               whole (emphasis added)." The underlined observation fortifies the view we are  taking in this case. In Motilal Jain v. State of Bihar(s) the detenu was detained for  the maintenance of supplies and services  essential  to the  community.   The  detention  order  was  based  on  six grounds.  This Court held that two of the grounds could  not be  considered  in  judging the validity  of  the  detention order.   When  asked  by  the  Government  to  maintain  the detention  order on the basis of the four renaming  grounds, the Court declined to do so, and said :               "The defects noticed........ are sufficient to               vitiate  the  order of detention  impugned  in               there  proceedings  as it is not  possible  to               hold  that  those grounds could not  have  in-               fluenced   the  decision  of   the   detaining               authority." It  will follow from these observations that  the  detention order  in the present case cannot be upheld on the basis  of

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the  remaining grounds, as we have taken the view that  five of  the  grounds served on the detenu have got  no  rational connection with maintenance of public order. In  Pushkar  Mukherjee  v. The State of  West  Bengal  (4  ) Ramaswami J. said :               "But  there  is no doubt that if  any  of  the               grounds  furnished to the detenu are found  to               be  irrelevant...... the satisfaction  of  the               detaining  authority  on which  the  order  of               detention  is based is open to  challenge  and               the order is               liable to be quashed." (1)  [1951] S.C.R. 167. (3) [1981] 3 S.C.R. 597 at.p 593. (2)  [1954] S.C.R. 418 at p. 422. (4)  [1969] 2 S.C.R. 635 at page 641, 281 Ananta Mukhi @ Ananta Hari v. State of West Bengal,(1)  this Court  held by majority that the grounds of  detention  were relevant to the maintenance of public order and security  of the State. In  Masood Alam v. Union of India(2) the  detenu’s  argument was  that  the grounds of detention were irrelevant  to  the maintenance of public order and security of the State.   But the Court did not accept the contention. As  A result of the foregoing discussion, we are of  opinion that the order of detention is invalid and cannot stand. The petition is accordingly allowed. P.B.R. Petition allowed. (1)  [1972] 3 S.C.R. 379. (2)  A.I.R. 1973 S.C. 897. 282