P.K. Goswami, C.J.
1. This is an application for a writ of habeas corpus by the petitioner Jalim Chand Saraogi alias Jain of Kedar Road. Gauhati who is detained in pursuance of an order under Section 3(2)(a) of the Maintenance of Internal Security Act, 1971'. hereinafter called 'the Act' passed by the District Magistrate. Kamrup on 11th April. 1972.
2. The petitioner was arrested on 11th April, 1972 by the Gauhati Police and detained at Gauhati Jail for allegedly committing an offence under the Public Gambling Act. 1867 and the Assam Game and Betting Act. 1970 (Assam Act 18 of 1970). Next day. he was enlarged by the Magistrate on bail and while he was about to be released from Jail he was served with the order of detention. We may quote the aforesaid order of the District Magistrate.
Whereas I am satisfied with respect of the person known as Shri Jalim Chand Jain alias Saraogi S/o Jaharmal Saraogi of Kedar Road Gauhati. that with a view to preventing him from acting in a manner prejudicial to the maintenance of public order in the district it is necessary to make the following order-
Now therefore, in exercise of the powers conferred on me under Section 3 (2)(a) of the Maintenance of Internal Security Act. 1971' I. Shri A. K. Choudhury, District Magistrate, Kamrup District do hereby direct that the said Shri Jalim Chand Jain alias Saraogi be detained with immediate effect and until further order at the Gauhati Jail.
The grounds of detention were served on the petitioner on 14th April. 1972 and the same may also be quoted:
Shri Jalim Chand Jain alias Saraoei S/o Jaharlal Sarawgi of Kedar Road Gauhati is found to be responsible for organising 'Teer Game' a same of chance by appointing agents to sell Teer Tickets in different areas of the greater Gauhati, On 31-10-71 2-11-71 11-12-71. 20-12-1971 and 6-1-1972 he with his agents viz. Promod Ranian Ray. Maunidra Kumar Ray Haren Das and Krishnadhar Ray organised selling of The Tickets at Atgaon. Tokobari, Rehabari and Fancvbazar respectively with the help of his agents some of whom were arrested by the police. His activities are therefore considered to be detrimental to the maintenance of public order.
3. The short question that arises for consideration in this case is whether the grounds set out have any relevance to the maintenance of public order, which was the object of the order of detention.
4. It is submitted by Mr. A. M. Mazumdar, the learned Junior Government Advocate, that 'public order' in the context of the present state of society may even be different from what the Court may consider it to be twenty years back. According to him. the potential danger of an activity may admit of the necessity for taking action under the Act, With his usual sobriety, he drew our attention to the relevant decisions of the Supreme Court on the subject. We will, therefore, consider the matter in the light of the stand taken by the State Counsel.
The Act is a successor to the Preventive Detention Act. 1950 and has been passed, as the preamble shows, 'to provide for detention in certain cases for the purpose of maintenance of internal security and matters connected therewith'. Section 3 of the Act is substantially identical with Section 3 of the Preventive Detention Act, except for the proviso to Section 3 (3) and some other particulars relating to a foreigner, with which we are not concerned. 'Public order' is not defined in the Act, and not even in the earlier Act. It is clear that action has been taken by the District Magistrate for the petitioner's alleged activities in connection with public gambling by organising. The Game' ...'in different areas of the greater Gauhati.' As stated in paragraph 3 of the counter-affidavit of the Under Secretary to the Government of Assam. Political Department:.the petitioner was caught red-handed on 11-4-1972 alone with 13 others while gambling vide Gauhati police station case No. 45 (4) 72 under Section 14 Assam Game and Betting Act, 1970. Charge-sheet has been submitted against all on 15-4-1972 and the case is sub justice. In order to pre-vent him from acting in a manner pre-judicial to the maintenance of public order he has been detained under the provisions of the Maintenance of Internal Security Act. 1971.
It is further stated in paragraph 8 of the counter-affidavit:
The grounds of detention are self explanatory and are based on concrete facts.
In paragraph 13 of the counter-Affidavit:
It is further submitted that with regard to the specific instances the petitioner was prosecuted and also will be prosecuted under the Gambling Act and the Assam Game and Betting Act. But they do not mean that when the activities of the petitioner will be found to be prejudicial to the Maintenance of public order, he cannot be arrested and detained under the provisions of the Maintenance of Internal Security Act.
5. The District Magistrate has not sworn any affidavit in this case as he was 'out of station on public duty'. The Additional District Magistrate. Kamrup. however, submitted his affidavit beyond the time provided for in the Rules of this Court and the petitioner objected to the same being considered by the Court. Even in this affidavit, the additional District Magistrate stated as follows:
Cases have been started against these persons including the petitioner. It has been found that the continuance of the game in spite of all attempts by the authorities to stop it is demoralizing a good section of the people particularly students and other younger section of the Society so much so that they have been found to indulge in violence whenever there was selling of tickets for tear game or after the same the money was distributed. On study of the entire situation the District Magistrate has come to the conclusion that the continuance of the game was not a matter only of law and order but has reached a stage when it has ceased to be a matter of mere law and order but has become a matter affecting public order.
X x x
As the petitioner is found responsible for organising teer game, his activities are considered by the authorities detrimental and prejudicial to the maintenance of public order. The petitioner will be prosecuted no doubt for his having acted against the provisions of the Gambling Act and the Assam Betting and Games Act. But that cannot absolve him of his liability of having acted in a manner periodical to the public order.
6. In the counter-affidavit of the Under Secretary, there was no assertion by him of the actual character of the activity as appertaining to the domain of violence as now sought to be made out by the Additional District Magistrate in his belated affidavit. It is. therefore, not necessary for us to decide what would have been the legal position if the reasons set out by the Additional District Magistrate, who is not the author of the impugned order were incorporated in the grounds served on the detenu.
7. This leaves us with the sounds served on the detenu as mentioned above and which we must assume to be true. The activities mentioned therein are confined to his organisation of gambling. The detenu is said to have organised teer game by selling teer tickets on five different dates. He. with his four named agents, organised selling of teer tickets at four specified places and the police had arrested some of his agents. The above activities are said to be detrimental to the maintenance of public order necessitating his detention. The ground is really one as stated by the learned Counsel for the State viz.. unlawful gambling activity of the petitioner. Mr. Maiumdar submits that the activity is a source of potential danger to public order peace and tranquillity and is not merely a law and order question.
8. It is well-settled that 'public order' is not the same thing as 'law and order'. Maintenance of law and order is not equated with maintenance of public order. See : 1966CriLJ608 . Ram Manohar Lohia's case. The concept of public order, according to our opinion, has to be viewed in contrast with what can be described as public disorder. An act or activity in order to give rise to an apprehension of public disorder, must directly and proximately be linked to some elements, subversive, violent, dangerously mischievous or general fear-foreboding. The act or activity must be judged by the direct or immediately probable effects on the public mind, the community, the society or even a locality, so that the general populace not mere individuals, is affected or concerned. The effect of the activity should be of a pervading character disturbing the general peace, tranquillity and order of society. As observed by the Supreme Court in Shaman Chakra-borty v Comer. of Police. Calcutta : [1970]1SCR762 .
It is true, as laid down by this Court, that the contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large.
As Ramaswami, J.. put it in Pushkar Mukheriee v. State of West Bengal. : 1970CriLJ852 .
In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or inure the public interest and the relatively minor breaches of peace of a purely local significance which primarily inure specific individuals and only in a secondary sense public interest.
Again, as Hidayatullah. C.J.. observed in Arun Ghose v. State of West Bengal : 1970CriLJ1136 :
It is always a question of degree of the harm and its effect upon the community. The question to ask is; Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on facts. There is no formula by which one case can be distinguished from another.
It was again observed in the same case that:
The conduct may be reprehensible but it does not add up to the situation where it may be said that the community at large was being disturbed or in other words there was a breach of public order or likelihood of breach of public order.
In Madhu Limaye v. Sub-Divisional Magistrate : 1971CriLJ1720 . the Supreme Court observed as follows:
'Public order' no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means what the French designate order publique, defined as an absence of insurrection, riot, turbulence, or crimes of violence. The expression 'Public order' includes absence of all acts which are a danger to the security of the Statp and also acts which are comprehended by the expression 'order publique' explained above but not acts which disturb only the serenity of others.
The Supreme Court in that case referred to its earlier decision in Ram Manohar Lohia's case : 1966CriLJ608 . supra, where it was pointed out that for expounding the phrase 'maintenance of public order:
One has to imagine three concentric circles: Law and order represents, the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State.
All cases of disturbances of public tranquillity fell in the largest circle but some of them are outside 'public order' for the purpose of the phrase 'Maintenance of public order' similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the State.
Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the printer of the largest circle towards the centre. In this inurned we travel first through public tranquillity, then through public order and lastly to the security of the State.
Again, in B. Sundar Rao v. State of Orissa. : AIR1972SC739 . the Supreme Court observed:
By the expression 'maintenance of public order' what is intended is the prevention of grave public disorder.
9. We are. therefore, unable to hold that the grounds furnished to the petitioner in this case as they are and with nothing more, warrant his detention under Section 3 (2)(a) of the Maintenance of Internal Security Act. We are, therefore, unable to accept the submission of Mr. Maiumdar in this case.
10 The order of detention of the petitioner is therefore invalid and the same is quashed. The detenu shall be released forthwith from detention under the Act. The petition is allowed.
M.C. Pathak, J.
11. I agree.