TMI Blog1972 (2) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... s for determination in this petition is whether detention directed by an order which recites that it was made upon satisfaction of the District Magistrate that the person concerned was acting in a manner prejudicial to the security of the State or the maintenance of public order is an order lawfully made. The argument was that the use of the disjunctive 'or', instead of the conjunctive 'and', showed either that the detaining authority was not certain under which of the two grounds, namely, the security of the State or the maintenance of public order, he had reached his subjective satisfaction, impelling him to consider the petitioner's detention necessary, or that the order was passed mechanically, merely reproducing the language of Section 3(1) without any application of mind as to whether the acts of the petitioner, actual or anticipated, were prejudicial to the security of the State or the maintenance of public order, or both. If it was the last, obviously, the order should have used the conjunctive 'and', and not the disjunctive 'or'. To appreciate the contention, it would be necessary to understand the object and the scheme of the Act. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, the expression acting in any manner prejudicial to the security of the State or the maintenance of public order means- (a) using, or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon- (1) to promote or propagate any cause or ideology, the promotion or propagation of which affects, or is likely to affect, adversely the security of the State or the maintenance of public order; or (2) to overthrow or to overawe the Government established by law in India. Explaination. - In this Clause, lethal weapon includes fire-arms, explosive or corrosive substances, swords, spears, daggers, bows and arrows; or (b) committing mischief, within the meaning of Section 425 of the Indian Penal Code, by fire or any explosive substance on any property of Government or any local authority or any corporation owned or controlled by Government or any University or other educational institution or on any public building, where the Commissioner of such mischief disturbs, or is likely to disturb, public order; or (c) causing insult to the Indian National Flag or to any other object of public venera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion disturbs or is likely to disturb or endanger either of them, or both. It becomes necessary, therefore, to ascertain the connotation of these two concepts as laid down in certain judicial pronouncements. Although those pronouncements were under the Preventive Detention Act of 1950, they would, nevertheless, apply to the present Act also, since by not providing any different definition the legislative authority must be presumed to have used the expressions, security of the State and the maintenance of public order, according to their well-established meanings. 7. In Dr. R.M. Lohia v. Bihar [1960] 1 SCR 709 the impugned detention order was passed under Rule 30(1) of the Defence of India Rules, 1962 which required satisfaction of the detaining authority that the person concerned should be prevented from acting in a manner prejudicial inter alia, to the public safety and the maintenance of public order. The order impugned there stated that the authority was satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in a manner prejudicial to the public safety and maintenance of law and order After considering the earlier decisions on the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and extent of the reach of the act in question upon society. Acts similar in nature, but committed in different contexts and circumstances might cause different reactions. In one case, it might affect the problem of law and order, and in another, though similar in quality, of public order, (see also Nagendra Nath Mondal v. West Bengal Writ Petition 308 of 1971 decided on 13.1.72. An act, such as communicating the defence secrets of a country to an enemy country, while not affecting the maintenance of law and order or public order, would affect adversely the security of the State. On the other hand, there may be activities which depending upon the degree of their effect and potentiality might affect all the three at the same time. 8. The three concepts have, thus, through a catena of decisions acquired well understood meanings, and though in some cases they might overlap to a certain extent, the distinction between them is fairly clear. When, therefore, statutes, such as the present one, confer power on an authority to deprive a citizen of his liberty, and bar at the same time any judicial scrutiny into the sufficiency of reasons for doing so, it is vital that the action depri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ote or propagate a cause or ideology, the promotion or propagation of which affects, as is likely to affect adversely the security of the State, or the maintenance of public order, or (2) to overthrow, or overawe the Government established by law would, according to the definition in Sub-section 2, mean acting in a manner prejudicial to the security of the State or the maintenance of public order. It would seem from Clause (a) that acts of the kind mentioned in Sub-clause 1 would be regarded as prejudicial to public order or security of the State, as the case may be, while those mentioned in Sub-clause 2 would be regarded as capable of prejudicial to the security of the State. The language of Clause (a) itself suggests that besides the act being of the kind mentioned in Sub-clause 1 the authority must also be satisfied that the act there set out is one that affects, or is. likely to affect adversely public order. under Clause (b), committing mischief, as defined in Section 425 of the Penal Code, by fire or explosive substance on the classes of property specified there, provided again that such mischief disturbs or is likely to disturb public order, would fall under the definition. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . Such an omission must mean that those activities have a bearing on and relate to public order, and not to the security of the State Sub-section 2, by furnishing a dictionary to the expression acting in any manner prejudicial to the security of the State or the maintenance of public order enables the detaining authority to treat the specific categories of activities set out therein as activities capable of affecting the security of the State or the public order, and to invoke the power if it is satisfied that their effect, actual or likely, is adverse to either, or both of them, depending upon their extent or potentiality. Before, therefore, resorting to Sub-section 1, the authority has to be satisfied whether the act or acts alleged against the person concerned fall under one or the other ground, viz., the security of the State or public disorder or under both. If the authority decides to make the order, it must state in it whether its satisfaction is on one or the other ground, or both. The mere fact that the acts in question are of any of the kinds mentioned in Clauses (a) to (e) of Sub-section 2 does not mean that they automatically and without anything more mean acting in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security of the State or the maintenance of public order . With great respect, such a construction of the definition in Section 3(2) would mean that any one of the activities enumerated in Clauses (a) to (e) would fall under both the grounds, namely, the security of the State and the maintenance of public order, and therefore, it would not be necessary for the detaining authority to ascertain for his satisfaction whether the act for which he considers detention necessary is of the type or category which is or tends to be prejudicial to the security of the State or the maintenance of public order. In other words, any one of the acts set out in Clauses (a) to (e) must be regarded as prejudicial to both the security of the State and the maintenance of public order. 13. If that is the meaning which is to be attributed to the definition in Section 3(2), the detention order, read in the light of the grounds of detention served on the petitioner there would appear to be not in accord with the realities. For instance, an attack on a train with the object of seizing political rivals and to eliminate them would, without doubt, be one that creates public disorder, but such public disorder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a small number of persons or area might affect only public order. On a State-wide potentiality, it might affect adversely even the security of the State. Indeed, such a distinction is expressed in Sub-clauses 1 and 2 of Clause (a) itself. The same can be said of all other activities set out in the other clauses. under Clause (c), causing insult to the national flag or any other object of public veneration is regarded by that clause as acting in a manner prejudicial to the security of the State or the maintenance of public order depending upon the circumstances, the reach or the potentiality of the act in question. Such an insult on a vast scale simultaneously committed might have the effect of creating an upsurge in the whole State and thus affect the security of the State, let alone the public order. But, irrespective of such potentiality, the clause cannot mean that such an act by itself and without anything more must be deemed to fall under the mischief of both the kinds. The result of accepting such a construction would mean that once an act falls under any of the Clauses (a) to (e), even if it affects or is likely to affect public order only must also be held to affect or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on May 5, 1971 and was served with the order of detention along with the ground of detention and the vernacular translation thereof on the same day. On April 26, 1971 the District Magistrate of Midnapore reported to the State Government about the making of the detention order against the petitioner together with the grounds of detention and other necessary particulars. The said report and particulars were considered by the State Government and on May 4, 1971 the detention order was approved by the State Government. On the same day the State Government submitted a report to the Central Government together with the grounds of detention and other necessary particulars. The case of the petitioner was placed by the State Government before the Advisory Board on June 3, 1971. In the meanwhile, on May 20, 1971 the State Government received a representation of the petitioner dated May 13, 1971. The said representation was considered by the State Government and was rejected as per order dated June 2. 1971. The representation of the petitioner was then forwarded to the Advisory Board. The Advisory Board after considering the material before it, including the representation of the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutting weapons and also looted ornaments and other articles from the house. The above facts would show that the case against the petitioner was covered by Clause (d) of Sub-section 2 of Section 3 of the Act. Sub-sections 1 and 2 of Section 3 of the Act read as under: (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. (2) For the purposes of Sub-section 1, the expression acting in any manner prejudicial to the security of the State or the maintenance of public order means- (a) using, or instigating any person by words, either spoken or written, or by signs or by visible representations or otherwise, to use, any lethal weapon- (1) to promote or propagate any cause or ideology, the promotion or propagation of which affects, or is likely to affect, adversely the security of the State or the maintenance of public order; or (2) to overthrow or to overawe the Government established by law in India. Explanation.- In this clause, 'l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to disturb public order. According to Sub-section 1 of Section 3 of the Act, the State Government may, if so satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order, it is necessary so to do, make an order directing that such person be detained. Sub-section 3 empowers a District Magistrate to exercise the powers, if so satisfied, conferred by Sub-section 1. 22. The activities of the petitioner as mentioned in the grounds of detention, in our opinion, show that they were not of an extraneous character but fell within the expression acting in any manner prejudicial to the security of State or the maintenance of public order as defined in Sub-section 2 of section 3 of the Act. 23. The second submission of Mr. Jain is that the order of detention made by the District Magistrate shows that he has not duly applied his mind before making the detention order, as according to the order the petitioner was detained with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order . It is urged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round (b). The use of the word or would show in cases falling under such a statute, an element of casualness in the making of the order as held by this Court in the case of Jagannath Misra v. State of Orissa. 1966CriLJ817 The detenu in that case had been ordered to be detained under Rule 30(1)(b) of the Defence of India Rules, 1962 and according to the order of detention, the order had been made with a view to preventing the detenu from acting in any manner prejudicial to the defence of India and civil defence, the public safety, the maintenance of public order, India's relations with foreign powers, the maintenance of peaceful conditions in any part of India or the efficient conduct of military operations . This Court observed: There is another aspect of the order which leads to the same conclusion and unmistakably shows casualness in the making of the order. Where a number of grounds are the basis of a detention order, we would expect the various grounds to be joined by the conjunctive and and the use of the disjunctive or in such a case makes no sense. In the present order however we find that the disjunctive or has been used, showing that the order is more or le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicial to the maintenance of public order are not identical, because of close nexus between maintenance of public order and security of State, there is bound to be some overlapping. As the expressions acts prejudicial to the maintenance of public order and acts prejudicial to the security of the State have not been separately defined but have been put together in the same definition with the disjunctive or in between them, the use of the word or in the detention order would not, in our opinion, so adversely affect the said order as may justify the quashing of that order. 28. We are fortified in the above conclusion by a recent decision of this Court in the case of Shyamal Mondal v. State of West Bengal 1971CriLJ1703 . In that case too the impugned order of detention stated that the District Magistrate was satisfied that it was necessary that the petitioner should be detained with a view to prevent him from acting in any manner prejudicial to the security of the State or the maintenance of public order as provided by Section 3(1) of the Act. Argument was advanced on behalf of the detenu that the order of detention was illegal inasmuch as the petitioner had not been infor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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