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PETITIONER: SUBHASH BHANDARI & ANR. ETC.

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, LUCKNOW & ORS.

DATE OF JUDGMENT03/11/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1988 AIR   74            1988 SCR  (1) 773  1987 SCC  (4) 685        JT 1987 (4)   277  1987 SCALE  (2)937  CITATOR INFO :  RF         1990 SC 220  (7)  RF         1992 SC 979  (12)

ACT:      National  Security   Act,  1980:  Section  3-Detention- Grounds  of   detention-Subjective   satisfaction   of   the detaining authority-Solitary  criminal act-Whether  and when can be taken into consideration for making detention order.

HEADNOTE: %      The appellants  were  contractors  for  the  supply  of ballast to PWD. They were detained under section 3(2) of the National Security Act, 1980. It was stated in the grounds of detention that  on account  of business  rivalry, appellants and their companions attacked the complainant with fire arms and hand grenades with intent to kill him, FIR was lodged by the complainant,  a case  was registered  against them under section 147, 149, 307 I.P.C. and section 6 of the Explosives Act, and  a chargesheet  put up  against the appellants, and since they had applied for bail, and if released there was a possibility that  they will  again start  activities causing breach of  public order,  it was necessary to detain them in order to prevent them from so acting.      The  detention   orders  were  approved  by  the  State Government  under   section  3(4)   of  the   Act,  and  the representations made  by the appellants having been rejected they were directed to be detained for a period of 12 months.      Challenging their  detention, the appellants filed writ petitions before  the High Court contending that the alleged assault on  the complainant  affected only an individual and such a  solitary act  could not  be considered  to be an act prejudicial to the maintenance of public order.      The High  Court, dismissing  the writ  petitions,  held that the  assault was  to teach  a lesson to the complainant and serve  as warning  to prospective  tenderers who may not dare to  submit their  tenders and that the impact and reach of the  act went  beyond the  individual  and  affected  the community of  contractors who  take contracts  for executing the public works.      Allowing the appeals to this Court,

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774 ^      HELD:  Disturbance   of   public   order   is   to   be distinguished from  acts directed  against individuals which do not  disturb the  society to  the  extent  of  causing  a general disturbance  of public tranquility. An act by itself is not  determinant of its own gravity In its quality it may not differ  from another  but in  its potentiality it may be different. [778C-D]      A solitary  act of  omission or commission can be taken into consideration  for being subjectively satisfied, by the detaining authority  to pass  an Order  of detention  if the reach, effect  and potentiality  of the  act is such that it disturbs public  tranquility by creating terror and panic in the society  or a  considerable number  of the  people in  a specified locality  where the  act is  alleged to  have been committed. It  is the  degree and extent of the reach of the act upon  the society  which is  vital for  considering  the question whether  a man  has committed  only a breach of law and  order  or  has  acted  in  a  manner  likely  to  cause disturbance to public order. [779A-C]      In the instant case, the alleged act of assault by fire arms is confined to the complainant and not to others. It is an act  infringing law and order and the reach and effect of the act  is not  so  extensive  as  to  affect  considerable members of  the society.  In other  words, this act does not disturb public tranquility, nor does it create any terror or panic in the minds of the people of the locality nor does it affect in  any manner  the even  tempo of  the life  of  the community. This  criminal act emanates from business rivalry between the  detenus and the complainant. Therefore, such an act cannot  be the  basis for subjective satisfaction of the detaining authority  to pass  an order  of detention  on the ground that the impugned act purports to affect public order i.e. the  even tempo  of the life of the community, which is the  sole   basis  for  clamping  the  order  of  detention. Moreover,  no  injury  was  caused  to  the  person  of  the complainant, by  the appellants nor any damage was caused to the car  though hand grenade was alleged to have been thrown on the  car. No mark has been caused to the car also. [778E- H]      Gulab Mehra  v. State  of U.  P. & Ors., 4 JT 1987 3 SC 559, applied.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 558 and 559 of 1985.      From the  Judgment  and  order  dated  14.2.85  of  the Allahabad High Court in W.P. No. 5805 and 5806 of 1985. 775      Mohan Pandey for the Appellants.      Yogeshwar  Prasad   and  Dalveer   Bhandari   for   the Respondents.      The Judgment of the Court was delivered by      B.C. RAY,  J. These  two appeals  by special  leave are against the  order passed  on February  14, 1985 by the High Court of  Allahabad dismissing the writ petition No. 5806 of 1984 and  writ petition  No. 5805  of 1984  as well  as writ petition No.  309 of  1985 whereby  the order  of  detention passed against  the appellants on October 1, and October 20, 1984  respectively   under  section  3(2)  of  the  National Security Act, 1980, was upheld as legal and valid.      The copy  of the  order of  detention as  well  as  the

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grounds of detention and the first information report on the basis of  which the detention order was made, were served on the appellants  at the  time of their detention. The grounds of detention are as follows:-           "On 25.9.1984,  Shri  Surya  Kumar,  son  of  Shri           Vishwa  Pal,   resident  of   33,  Babuganj,  P.S.           Hasanganj, District  Lucknow, lodged  a report  at           P.S. Hazratganj,  Lucknow that  on 15.9.1984 there           was a  tender for  the supply of ballast in P.W.D.           in which tenders had been submitted by him in K.P.           Singh’s name.  You keep  share with K.P. Singh. On           account of  your and  K.P. Singh’s terror no other           person submits  any tender  against you people for           which reason you people obtain tenders at rates of           your choice.  If  any  other  person  submits  his           tender  you  and  K.P.  Singh  terrorise  him.  On           account of  the rates of his tender being lower on           15.9.1984,  the  tender  of  the  complainant  was           accepted in  one group and in the remaining groups           the tenders  of K.P. Singh etc. were accepted. For           this reason  you and  K.P.  Singh  bore  a  grudge           against the complainant.                On 25.9.1984  at about  3.45 P.M.  when Surya           Kumar was going, in connection with his tender, in           his Ambassador  Car No.  USS-7418, accompanied  by           his  brother-in-law,   opposite  to  the  National           Highway  Khand,   he  saw   some  contractors.  On           reaching  near   them  the  complainant  had  just           started talking  to them,  when  suddenly  in  two           cars, you  with  a  pistol,  Phool  Chand  with  a           revolver, Jaleel  with a revolver, Ashok with Desi           katta, Ashok Sonkar and Sarrif 776           with hand grenade and Shankar Dey with a gun along           with three  other persons  came and with intent to           kill the  complainant fired  at  the  complainant,           threw hand  grenades which  fell on the car of the           complainant. Consequently,  there was a commotion.           Traffic was  obstructed and public tranquility was           disturbed. The  complainant immediately saving his           life  took   flight  in  his  car.  On  the  above           information by the complainant a case FIR No. 1034           was  registered   at  police  station,  Hazratganj           against  you   and  your  other  companions  under           Section 147, 148, 149, 307 I.P.C. and Section 6 of           Explosives Act  and after  investigation a charge-           sheet No.  279 has been put up against you for the           said offence.                I have  also been  put up against you for the           said offence.                I have  also come to know that on your behalf           an application for grant of bail has been moved in           a competent court, therefore, in case you come out           on  bail  from  the  jail  you  will  again  start           activities causing breach of public order                on  the   abovesaid  grounds,   I  have  been           satisfied that there is possibility of your acting           in a  manner prejudicial  to  the  maintenance  of           public order  and in  order to prevent you from so           acting, it is necessary to detain you."      The said  order of  detention was  duly approved by the State Government under section 3(4) of the National Security Act. The  appellants made representation against the grounds of detention.  The  representations  were  rejected  by  the Government and  the same were communicated to the appellants

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by  the   Joint  Secretary,  Vigilance  &  Home  Department, Government of  U.P. On  November 26,  1984,  the  Secretary, Vigilance & Home Department, Government of U.P. informed the appellants that  the Government after considering the report of the  Advisory Board  had confirmed the order of detention and directed that the appellants be detained for a period of 12 months  with effect  from October 1, 1984 and October 20, 1984 respectively.      Aggrieved by  this order  of detention  the  appellants moved applications  under Article 226 of the Constitution of India for  quashing of  the order  of detention  made by the respondent No. 1 and for setting 777 them free.  These were  registered as writ petition No. 5806 of 1984  and writ  petition No. 5805 of 1984. Another detenu who was  detained  on  identical  grounds  also  filed  writ petition No. 309 of 1985 before the High Court.      The  main   contention  advanced   on  behalf   of  the appellants before  the High  Court was  that on the basis of facts alleged,  at the most it could be said that the matter related to  the maintenance  of law  and order. It was not a matter relating  to the  disturbance of  public  order.  The assault on Surya Kumar can only be on account of an ill-will arising out  of business rivalry. It had been submitted that it affects  only an  individual and the society or community were not affected by the alleged act of omission on the part of the  appellants. It therefore raised no problem of public order. It had been further contended that a solitary act can not be considered to be an act prejudiced to the maintenance of public order.      The High  Court of  Allahabad after hearing the parties and on  a consideration  of the  decisions cited  before  it found that  whether an  act creates  a mere  law  and  order problem or  affects the  even  tempo  of  the  life  of  the community, it is to be seen what is the extent of the impact of the  act in question upon the society as a whole; whether the  effect   is  restricted  to  an  individual  or  a  few individuals alone  or it  creates  a  sense  of  insecurity, danger and  apprehension in  the  minds  of  the  people  in general  apart  from  those  who  are  the  victims  of  the incident; whether  the act or acts disturb the even tempo of life of the society or a section of society; whether the act leads to  disturbance of public order or only law and order. The High  Court further  found that  in the  context the act committed tends  to teach a lesson to the complainant and to act as  a warning to prospective tenderers in future who may not dare to avail of the opportunity to submit their tenders against that  of the  appellants. It was also found that the impact and  reach of  the act  in question  goes beyond  the individual and affects the community of contractors who take contracts for  executing the public works. The Court further held that  the order  of detention  made  by  the  detaining authority is  legal and  valid and  the writ  petitions were dismissed.      Undoubtedly, on  the basis  of the  FIR lodged by Surya Kumar a  case under Section 147/148/149/307 I.P.C. and under Section 5 of the Explosives Act has been registered as crime No. 1034  and the  said case  is pending for decision before the criminal court.      The main  question which  falls for decision is whether the act 778 referred to  in the grounds of detention is directed against certain individuals  creating a law and order problem or the reach and  potentiality of  the act is so deep as to disturb

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the society  to the  extent of causing a general disturbance of public tranquility.      It has  now been  well settled  by several decisions of this Court  (the latest  one being  Gulab Mehra  v. State of U.P. &  Ors., 4 JT 1987(3) SC 559 judgment in which case was pronounced by us on September 15, 1987) that public order is the even  tempo of  the life  of the  community  taking  the country as a whole or even a specified locality. Disturbance of public  order is  to be  distinguished from acts directed against individuals  which do not disturb the society to the extent  of   causing  a   general  disturbance   of   public tranquility. It  is the degree of disturbance and its effect upon  the   life  of  the  community  in  a  locality  which determines whether  the disturbance amounts only to a breach of law  and order  or it  affects public  order. It has also been observed  by this  court that  an act  by itself is not determinant of  its own  gravity. In  its quality it may not differ from  another but  in its potentiality it may be very different.  Therefore   it  is   the   impact,   reach   and potentiality of  the  act  which  in  certain  circumstances affect the  even tempo  of life of the community and thereby public order  is jeopardized.  Such an individual act can be taken into  consideration by  the detaining  authority while passing an  order of detention against the person alleged to have committed the act.      In the  instant case the alleged act of assault by fire arms is  confined to  the complainant Surya Kumar and not to others. It  is an act infringing law and order and the reach and effect  of the  act is  not so  extensive as to affect a considerable members  of the  society. In  other words, this act does  not disturb  public tranquility nor does it create any terror  or panic  in the  minds of  the  people  of  the locality nor  does it affect in any manner the even tempo of the life  of the  community. This criminal act emanates from business rivalry  between the  detenus and  the complainant. Therefore such  an act  can not  be the basis for subjective satisfaction of  the detaining authority to pass an order of detention on  the ground  that the  impugned act purports to affect public  order i.e.  the even tempo of the life of the community which  is the sole basis for clamping the order of detention. Moreover,  no injury  was caused to the person of the complainant,  Surya Kumar  by  the  appellants  nor  any damage was caused to the car though hand grenade was alleged to have  been thrown  on the car. No mark has been caused to the car  also. It  is relevant to mention in this connection that the  appellants were  released on  bail by  this  Court after duly considering the facts and 779 circumstances of  the case  in July, 1985. The period of one year has  also expired.  We have  already held  hereinbefore that a  solitary act  of omission or commission can be taken into consideration  for being subjectively satisfied, by the detaining authority  to pass  an order  of detention  if the reach, effect  and potentiality  of the  act is such that it disturbs public  tranquility by creating terror and panic in the society  or a  considerable number  of the  people in  a specified locality  where the  act is  alleged to  have been committed. Thus  it is the degree and extent of the reach of the act  upon the society which is vital for considering the question whether  a man  has committed  only a breach of law and  order  or  has  acted  in  a  manner  likely  to  cause disturbance to public order.      It is  pertinent to  note in  this connection  that the Criminal Appeal  Nos. 826 and 827 of 1985 arising out of the same incident  and identical  grounds of detention, filed by

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Ashok Arora and Ashok Kumar Sonkar have been allowed by this Hon’ble Court  by its  order dated November 29, 1985 and the appellants were directed to be set at liberty forthwith.      For the reasons aforesaid, we allow the appeals without any order as to costs. N.P.V.                                      Appeals allowed. 780