Harnek Singh vs State of Punjab and anr.

S.D. Bajaj, J.

JUDGMENT of detention passed against the petitioner Harnek Singh by District Magistrate, Ludhiana, on April 28, 1988 was revoked on May 9, 1988. Another order of detention was passed against the petitioner on the same day by the President of India which is Annexure P. 2. The petitioner has filed Cr. W.P. No. 1101 of 1988 for quashing it on the ground that the impugned order was passed in a mechanical manner without the detaining authority being satisfied that there was any likelihood of the petitioner indulging in activities prejudicial to the maintenance of public order and security of the State contradistinguished from breaches of law for which criminal cases have already been registered against the petitioner r and are pending trial against him, that the detention case of the petitioner has not been placed before the Advisory Committee within the prescribed period after compliance of the legal procedure and that no new facts are alleged to have occurred after the revocation of the earlier order justifying the making of the new order dated May 9, 1988 against the petitioner.

The grounds obtaining in Annexure P.3 for making the impugned order Annexure P.2 are the same on which previous detention order dated April 28, 1988 was passed against the petitioner. The activities smell out therein constitute only a breach of law contradistinguished from a breach of the public order justifying the issuance of a fresh order of detention. Relevant para 4 of the new detention order Annexure P.2 reads :

"Now, therefore, the President of India while being conscious of the fact that you are already in custody and you have been taking steps to get yourself released from the custody as per information received from the reliable sources and there is every likelihood of your being released from custody and in the event of your release from custody you are likely to resume such prejudicial activities in future and there is, thus, compelling necessity to pass the detention order against you though you are already in custody at present, in exercise of the powers conferred by Section 14A(1) read with Section 3(2) and Section 14(2) of the National Security Act, 1980 (No. 65 of 1980), is pleased to order that the aforesaid Harnek Singh be detained."

It is thus patent that the fresh order proceeds on a imaginary hypothesis without detailing efforts made by the petitioner (if any) to get himself released from custody or what was the reasons for the detaining authority to presume that there was any likelihood of the petitioner being released from custody.

For the breaches of law enunciated in (A) to (E) of para 5 of petition the petitioner is admittedly facing trials. None of these can, however, be termed as disturbance of the public order. Similar question came to be considered by the Supreme Court in Gulab Mehra v. State of U.P. and others, 1987(2) Recent Criminal Reports 416 : AIR 1987 Supreme Court 2332 wherein their lordships observed :

"The true distinction between the areas of `public order'' and `law and order'' lies not in the nature of quality of the fact, but in the degree and extent of its reach upon society. The distinction between the two concepts of `law and order'' and `public order'' is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order.

The question whether a person has only committed a breach of law and order or has acted in manner likely to cause a disturbance of the public order is one of degree and the extent of the reach of the act upon the society. An act by itself is not terminative of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Similar acts in different contexts affect differently law and order on the one hand and public order on the other. It is always a question of degree of the harm and its effect upon the community. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. It is the degree of disturbance upon the life of the community which determines whether the disturbance amounts only to a breach of the law and order.

The meaning of the word `public order'' has been determined by this court in the case of Kanu Biswas v. State of West Bengal, (1972)3 SCC 831 : AIR 1972 SC 1656. In this case it has been held that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent order is what the French call "order public" and is something more than ordinary maintenance of law and order.

Thus from the observations it is evident that an act whether amounts to a breach of law and order or breach of public order solely depends on its extent and reach to the society. If the act is restricted to particular individuals, or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and/or the even tempo of the community then it becomes a breach of the public order."

It has been urged in para 15 of the reply. The contents of the subpara are wrong and hence denied. The detention case of the petitioner has already been referred to the Advisory Board on 25.5.1988 within the stipulated period of four months and three weeks as provided for under section 10 read with section 14A(2) of the National Security Act and the report of the Advisory Board is awaited. There is thus no merit in this contention of the petitioner. Detention case of the petitioner has been duly referred to the Advisory Board within prescribed period.

In the view of the findings aforesaid, Criminal Writ succeeds and is allowed. Impugned order Annexure P. 2 is quashed and the petitioner is ordered to be set at liberty forthwith, if not required in any other case.