Surjit Singh vs State of Punjab and anr.

S.D. Bajaj, J.

Petitioner Surjit Singh was arrested by the police in a case under Section 307/34 of the Indian Penal Code on July 19, 1987. While he was still in custody, respondent No. 2 issued against him the detention order Annexure P. I on November 6, 1987. JUDGMENT Annexure P. I was revoked on May 9, 1988 and substituted by another order Annexure P. 3 on the same day. Detenu has filed Cr. W. P. No. 1237 of 1988 in this Court for quashing the orders of detention aforesaid on the ground that the State Government did not confirm the order of detention within the prescribed period, that the petitioner never applied for his release on bail and, therefore, the order of detention was made against him in a routine and perfunctory manner without the detaining authority applying its mind thereto or on its subjective satisfaction and that the breach of law attributed to him cannot be termed as disturbance of public order.

Detention order Annexure P.1 is dated November 6, 1987. JUDGMENT confirming the detention could, in line with the observations made by the Supreme Court in Shibapada Mukerjee v. State of West Bengal, A.I.R. 1972 Supreme Court 1356, Ujjal Mondal v. State of West Bengal A.I.R. 1972 Supreme Court 1446, Deb Sadhan Roy v. State of West Bengal, A.I.R. 1972 Supreme Court 1924 and Abdul Latif Abdul Wahab Seikh v. B.K. Jha and another, 1987(2) R.C.R.(Criminal) 17 : A.I.R. 1987 Supreme Court 725 , be made before February 6, 1988 and having admittedly not been so made, detention of the petitioner beyond this date is obviously without the authority of law and illegal.

Learned counsel for the State urged that the State had referred the matter to Advisory Board within the prescribed period of three weeks and thereafter revoked the detention order Annexure P. I because it did not hear from Board within the prescribed period. The argument is wholly without merit. In case the State Government did not hear from the Advisory Board then it could only revoke the order Annexure P. I but could not simultaneously substitute the order Annexure P. I by another order Annexure P. 3 and thereby persist in unauthorised and illegal detention of the petitioner.

The grounds obtaining in Annexure P. 4 making the impugned order Annexure P. 3 are the same on which previous detention order dated November 6, 1987 Annexure P. I was passed against the petitioner. The activities spelt out therein constitute only a breach of law contradistinguished from a breach of public order justifying the issuance of a fresh order of detention. Relevant para 4 of the new detention order Annexure P. 3 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 got 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 3(2) read with section 14(2) of the National Security Act, 1980 (No 65 of 1980) is pleased to order that the aforesaid Surjit Singh be detained."

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

For the breaches of law enunciated in 1 to 5 (a to e) of para 5 of Annexure P. 4 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) R.C.R.(Criminal) 416 : A.I.R. 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 act, but in the decree and extent of its reach upon society. The distinction between the two concepts of law and order and public order is a fine but this does not mean that there can be no overlapping. Acts similar in nature but committed in different context 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 onlycommitted a breach of law and order or has acted in a 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 determinative 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 of the reach of the act upon the society. Public order is what the French call order public" and is something more than ordinary maintenance of law and order.

Thus from these observations it is evident that an act whether amounts to a breach of law and order or a 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."

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