O.P. Garg, J.
1. The petitioner Suresh Chandra Katre alias Sulli seeks a writ of Habeas Corpus for being set at liberty on quashing the order of detention dated 10-10-2000, Annexure 2 to the petition, passed under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as 'the Act') by District Magistrate Etah. Against the order of detention, which was duly served upon the petitioner, he made a representation on 19-10-2000. It was forwarded along with para-wise comments of the District Magistrate with letter dated 20-10-2000 arid was received by the State Government on the next day, i.e. 21-10-2000. The matter was referred to the Advisory Board by the State Government on 17-10-2000 well within the period of 21 days to be reckoned from the first date of actual detention. The Advisory Board found that there was sufficient cause for detention of the petitioner. After taking into consideration the recommendations of the Advisory Board and other material on record, the detention of the petitioner. After taking into consideration the recommendations of the advisory Board and other material on record, the detention of the petitioner for a period of 12 months was approved. The representation made by the petitioner was rejected and there was no delay in forwarding and processing it by the competent authority.
2. To challenge the order of detention, as well as continued detention, three points have been canvassed beefore this Court. They are :
(i) that the order of detention of. other detenu Sanjai Member has been revoked by the State Government and since the grounds for detention of the petitioner are almost the same, he is also entitled to be released an ground of parity.
(ii) that the incident in respect of which the petitioner has been detained does not pertain to disturbance of public order and at best, it can be treated as an instance of breach of law and order and consequently, the provisions of Section 3(2) of the Act could not be invoked, and
(iii) that the petitioner was denied the reasonable opportunity of making effective representation on account of the fact that the relevant and material documents which were required to be supplied to him were not delivered. Counter and rejoinder affidavits have been exchanged.
3. Heard Sri D.N. Wali, assisted by Sri Ashok Kumr Singh, learned Counsel for the petitioner and Sri Arvind Tripathi, Additional Government Advocate, for the State of U.P. as well as Sri Suresh Mani Tripathi for Union of India, at considerable length.
4. The first ground that the order of detention of the petitioner is required to be revoked on the ground of parity is not available to the petitioner. It is well established proposition of law that in a case of detention, the plea of parity cannot be canvassed as sometimes, the grounds of detention may be entirely different or revocation of detention order is necessitated on account of the fact that the advisory Board has not found sufficient ground for the detention. On this point, there is a Full Bench decision of this Court in Chandresh Paswan v. State of U.P. 1999 A.J.C. 327 (1999 All.LJ 1167). It is true that the order of detention of Sanjay Member, detenu has been revoked by the State Government. We had called for the relevant files which were produced before us. Supplementary counter affidavit of Sri R.S. Agarwal, Special Secretary, Home and Confidential Department, Government of U.P., Lucknow has also been brought on record. It is stated that the detention order of Sanjay Member-a co-detenu was revoked under the provisions of Section 12(2) of the Act as in the opinion of the Advisory Board, there was no sufficient cause for his detention. Sub-section (2) of Section 12 of the Act reads as follows :-
12(2) In any case, where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of a person, the appropriate Government shall revoke the detention order and cause the person concerned to be released forthwith
In those cases, where the Advisory Board does not approve of the detention order, the State Government has no option but to release the detenu forthwith. The order of detention of Sanjai Member was revoked on account of the fact that the Advisory Board did not find sufficient cause for his detention. In the case of the present petitioner, advisory Board has found sufficient cause to detain him. The petitioner, therefore, cannot seek parity with Sanjay Member in, the matter of revocation of the order of detention.
5. Now we come to the other point whether the incident, in question, on the basis of which, the petitioner has been detained by invoking the provisions of Section 3(2) of the Act relates to disturbance of maintenance of public order or it is merely a case of breach of law and order. The grounds of detention of the petitioner are contained in Annexure 4 to the petition. The incident, which allegedly led to public disorder, has been detailed in ground No.l. It reads : on 14-8-2001, at about 12 in the noon in Qasba and Thana Soraon in district Etah, the petitioner and his four sons-kailash Chandra, Mukesh alias Bhura, Shiv Kumar alias Sibua, Raju alias Takhna and one Sanjai Member son of Rameshwar Dayal Upadhyay armed with formidable weapons of assault entered Mankamneshwar Shiv temple and surrounded Anand Ballabh Bhatt, Harsh Ballabh alias Batuk, Brahrna Ballabh, Radha Kishan Mehre son of Gauri Shankar and Vijai Kumar Tewari and others; abused them and held out the threat to kill and on the exhortation of the petitioner, his son Mukesh alias Bhura opened fire from a close range on Harsh Ballabh alias Batuk who dropped dead. Not only this, the petitioner and his sons Kailash Chandra, Raju and Shiv Kumar opened fire with a view to exterminate the first informant Anand Ballabh Bhatt and his sons with the result, Brahma Ballabh and Radha Kishan sustained injuries. Sanjay Member who was accompanying the petitioner also opened fire with a view to terrorize the people who were in the neighbouring surroundings. On account of the devil daring crime in the brilliant light of the day, the local residents, it is alleged, started running helter skelter; the residents of the area closed the doors and kept themselves in the hide out in their houses; the shopkeepers closed their shops with the result the public order was disturbed.
6. In the light of the above facts, Sri D.N. Wali urged that the incident, aforesaid, was confined to individual persons and it was a case of private crime as distinct from public crime or disorder, according to him, the incident which resulted in the loss of life of one person and in injuring two persons, does not, in any way, affect the even tempo or life of the community nor did it affect the peace and tranquillity of the people of that particular locality where the crime was committed. In substance, the argument was that it was merely a case of commission of heinous crime affecting the law and order and it could not be stretched as a disturbance to the maintenance of the public order.
7. Sri Arvind Tripathi, learned A.G.A. urged that the correctness or otherwise of the facts on the basis of which the detaining authority felt satisfied in passing the detention order cannot be sifted or probed by this Court since it has a limited role in the matter of examining the validity or otherwise of the detention order. He fortified his submissions with reference to the various observations made by the Apex Court in the case of State of Gujarat v. Adam Kasam Bhaya A.I.R. 1981 SC 2005 (1981 Cri.LJ 1686) K. Aruna Kumari v. Government of Andhra Pradesh 1998 (25) ACC-15 (SC); U. Vijay Laxmi v. State of Tamil Nadu 1995 SCC (Crl)-176 (AIR 1994 SC 165) and the decision of this Court in Vijay Pal alias Pappu v. Union of India 1996 (33) ACC 741. It is true that this Court cannot sit in appeal over the discretion exercised by the detaining authority on the basis of the material placed before him, nevertheless, one cannot lose sight of the fact that the law of preventive detention is a hard law and, therefore, it should be strictly construed. Care should be taken that the liberty of the person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of the accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it will not be possible to resist the issue of orders of bail unless the material available is such as would satisfy the requirement of the legal provisions authorising such detention. When a person is enlarged on bail by competent criminal Court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal Court. It is true that this Court cannot substitute its opinion for that of the detaining authority. In a recent decision of the Court reported in the case of Ravi Singh v. State of U.P. (1999) 1 J.I.C. 1999 (1998 All. LJ 1334) (Alld), similiar view was taken that it is the subjective satisfaction of the detaining authority which should weigh and this Court cannot interfere if there was enough material before the detaining authority to form a particular opinion. There can be no quarrel with the legal position as has been stated above, nevertheless, we cannot agree with the learned AGA that those who are responsible for the maintenance of 'Public order' must be the sole judges of what the 'public order' requires. In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334) (1984) 3 SCC 14, Hon'ble Chinnappa Reddy, J. who agreed with Hon. E,S. Venkararamiah, J. (majority view), observed as follows :- at page 1336, of AIR.It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so trecherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the Courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the Court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen, J. when he says 'It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community, resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.
In Safiq Ahmad v. District Magistrate Meerut AIR 1990 SC 220 (1990 Crf.LJ 573), the Apex Court observed that it has to be seen by this Court whether the grounds or the reasons supplied to the detenu in support of the detention order were germane to the maintencance of 'public order'. The Court can examine the record and determine the validity whether the order is based on no material or whether materials have rational nexus with satisfaction that 'public order' was breached.
8. Without being unnecessarily tangled in the technical web we would like to steer clear the controversy whether on the facts narrated above, or say contained in the grounds accompanied with the order of detention, a case of breach of 'law and order' or that of 'public disorder' is made out. It is no gainsaying that if it is purely a case of breach of 'law and order' in that event, the District Magistrate shall have no jurisdiction to pass an order of detention by invoking the provisions of Section 3(2) of the Act. The order of detention can only be passed for the maintenance of the 'public order' and such an order cannot be a substitute to detain an accused person who has breached the 'law and order' and can adequately be dealt with under the ordinary criminal law. There is a fine distinction between the two connotations, viz., 'breach of law' as well as 'public disorder'. The distinction has come to be canvassed in a catena of decisions of Apex Court as well as this Court. The oft quoted leading decsion in the cases of Dr. Ram Manohar Lohia v. State of Bihar AIR 1966 SC-740 (1966 Cri.LJ 608} : Arun Ghosh v. State of West Bengal AIR 1970 SC-1228 (1970 Cri.LJ 1136), came to be considered in the subsequent cases in Pushkar Mukerji v. State of West Bangal (AIR 1970 SC-852) (1970 Cri.LJ 852), Narendra Nath Mandal v. State of West Bangal (AIR 1972 S.C. 665); Kishori Mohan Bera v. State of West Bangal (AIR 1972 SC- 1749); Amiya Kumar Karmokar v. State of West Bengal (AIR 1972 SC 2259, Samresh chandra Bose v. District Magistrate Burdwan AIR 1972 SC 2481 (1973 Cri.LJ 4640; Sasthin Chandra Roy v. State of West Bengal AIR 1972 SC-2134; Babul Mittra v. State of West Bengal AIR 1973 SC 197 (1974 CriLJ 395), Ram Ratan Chatterjee v. Stae of West Bengal AIR 1975 S9-609 (1975 Cri.LJ 588); Jaya Mala v. Home Secretary, Government of J & K AIR 1982 SC-1297 (1982 Cri.LJ .1777), Ashok Kumar v. Delhi Administration AIR 1982 SC 1143; State of U.P. v. Kamal Kishore Saini, AIR 1988 SC -208 (1988 Cri.LJ 405), Gulab Mehra v. State of U.P. AIR 1987 SC -2332 (1988 Cri.LJ 168) Smt. Angoori Devi for Ram Ratan v. Union of India AIR 1989 SC - 371 (1989 Cri LJ 950), Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Masharashtra-1992 AIR SCW 835 (AIR 1992 SC 979) Smt. Kamlabai v. Commissioner of Police, Nagpur 1993 (3) JT (SC) 666 (1993 AIR SCW 2305) as well as other recent decisions of the Apex Court as well as this Court. To eschew prolixity, we refrain from detailing all those cases, except the observations made in Smt. Angoori Devi for Ram Ratan v. Union of India.AIR 1989 SC 371 (1989 Cri.LJ 950) in which the Apex Court distinguishing between 'public order' and 'law and order' had the occasion to observe thus : at page 373
The impact on 'public order' and law and order' depends upon the nature of the Act, the place where it is committed and motive force behind it, If the Act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquillity, it may fall within the orbit of the public order. This is precisely the distinguishing feature between the two concepts.
The firm legal position as has emerged from the series of decisions on the point is that an Act - whether it amounts to 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 individual or a group of individuals if breaches the law and order problem but if the effect and reach and potentialities 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 is also well settled that even a single instance may be sufficient to clamp the detention order but a criminal Act, such as, solitary assault on one individual can hardly be said to disturb the public peace or 'public order', so much so, to bring the case within the purview of the Act. In T. Deoki v. Government of Tamil Nadu AIR 1990 SC -1086 (1990 Cri.LJ 1140), it was observed that such a solitary incident can only raise a 'law and order' problem and no more.
9. In the case of Harish Kasana v. State of U.P. -1988 (37) ACC-724 the order of detention under Section 3(2) of the Act was quashed. In that case, one Ram Sarup Mittal, aged 67 years, was Kidnapped and his son Ramesh Chand Mittal received a call from an unknown person who informed that unless a ransom amount of Rs. one Crore is paid, the abducted shall not be let off. After negotiations, the demand was brought down to Rs. 50 lacs. An F.I.R. was lodged. The grounds in the detention order indicated that the kidnapping incident raised a sense of fear amongst the business community of the locality; passers by, who had witnessed the incident, fled from the place; traffic in the locality was distrubed and business establishments were closed on account of which serious disturbance to the public order was caused. Persons of the trading class approached senior police and administrative officers seeking protection and security and requested them to find out culprits involved in the incident. Due to the kidnapping incident people stopped going on morning walk and different political parties expressed concern about the effectiveness of the local administration. Resentment was expressed that incidents of Kidnapping of persons of the business and trading class and demand of substantial amount as ransom for release have become common in the town. Another instance narrated in the grounds of detention related to incident of 5-9-1997 in which the detenu was caught and was found in illegal possession of a country made 12 bore pistol and three cartidges while moving on a scooter in front of the police out-post Bundu Katra and consequently, a crime case no, 325 of 1997 under Section 25 of the Arms Act was registered at the same police station. On the basis of the material placed before this Court, it was held that it could not be reasonably held that the detaining authority could feel satisfied that due to the incident the even tempo of life of the locality had been disturbed. It was observed :.position is fairly well settled that any incident involving criminal activity is likely to cause some self restriction on the normal activities of the people and thereby cause some disturbance in the order of the society but that is not sufficient to say that there has been disturbance of public order.
In another case- Atiq Ahmad v. State of U.P.(Habeas Corpus Writ No. 44025 of 1998, decided by this Court on 5-10-1998, a mur-def had taken place on 25-7-1997 at 7.45 A.M. in the densely populated area of Allahabad city in which a passer by also received gun shot injury. The impact of the shooting incident was that it caused stampede and a sense of fear and terror amongst the people of the locality loomed large. The people ran away leaving their vehicles ; trolleys and rickshaws carrying school children left the spot; a total desolation (EXXEE E) prevailed at the spot; the shutters of the doors and windows of the houses in the vicinity remained closed which led to disturbance of the 'public order'. Testing the facts of the case on the touch stone of the principles laid down by the Apex Court in the case of Rarn Manohar Lohia (supra), Dipak Bose alias Naripada v. State of West Bengal 1973 SCC (Cri)-684 (AIR 1972 SC 2686); Ram Veer Jatav v. State of U.P. 1987 A11C.R.R. : 11.0 (AIR 1987 SC 63) and Full Bench decision of this Court in the case of Shesh Dhar Misra v. Superintendent Central Jail Naini 1985 All. LJ 1222; Arvind Kumar Shukla v. State of U.P. 1995 A.L.M. (SC) 1259 it was concluded that the single incident of murder stated in the grounds of detention in the absence of any other circumstances cannot reasonably form the basis of the satisfaction that the petitioner was involved in an incident relating to 'Public order'.
10. Apart from the above decision of this Court, it would be advantageous to place reliance on a recent decision of the Apex Court in the case of Tarannum (Smt.) v. Union of India 1998 S.C.C. (Cri) 1037 (AIR 1998 SC 1013) in which the main incident pertained to looting of gold ornaments; wrist watches and cash from the house by the detenu and his associates by wielding knives and pistols. The other ground of detention was based on an incident relating to alleged threats held out by the detenu himself or through his agent while he was in jail. After discussing the case of Angoori Devi (Supra) it was held that the incident pertained to 'law and order' problem and not to the maintenance of 'public order'. InTarannum's case (supra), the following observations made in Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State of Maharashtra (1992)2 SCC 177 (AIR 1992 SC 979) were quoted' with approval : at Page 984; of AIR
Crime is a revolt against the wh61e society and an attack on the civilization of the day. Order is the basic need of any organized civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of 'law and order' and disturbance of 'public order' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which affect 'law and order' and those which disturb 'public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference. In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of 'public order' or only 'law and order'.
There is no gainsaying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed. Where the prosecution case failed, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial effect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of 'a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of 'law and order'.
It was observed in Tarannum's case (supra) that the above passage relied upon by the learned Counsel for the State of U.P. cannot come to his rescue. On the other hand, in, the light of the passage extracted above from Smt. Angoori Devi's case (Supra) it was found that the authorities were not right in passing the impugned detention order for 'law and order' problem, treating the same as 'public order' problem.
11. After carefully considering the fact on the basis of which the first ground of detention has been incorporated and in the backdrop of the above legal position, we are of the opinion that the incident did give rise to 'law and order' problem for the local police but. we are not satisfied that it is a case in which 'public order' was affected to a great extent. We are conscious of the fact that in case of detention, it is the subjective satisfaction of the District Magistrate and this Court does not sit as a Court of appeal to appreciate the correctness of the facts of sufficiency of the material. But accepting the facts narrated in the grounds of detention as correct, we are of the view that the detention of the petitioner under the Act was not justified as it was purely a case concerning breach of 'law and order'.
12. The second part of the first ground of detention is that the petitioner had surrendered before the Court of Chief Judicial Magistrate Kasganj on 22-8-2000 and had been committed to jail. He had moved an application for bail before the District and Sessions Judge, Etah which was fixed for hearing on 10th October, 2000. The detaining authority anticipated that there was strong probability of the petitioner securing the bail and no sooner he is bailed out, he shall involve himself in such activities, which may cause public disorder and since the petitioner is a person of criminal propensities and by committing heinous offences, he terrorizes the local residents, no witness will be prepared to give evidence against him. Now primary question is whether the detention of the petitioner could be justified solely on the ground that he was trying to come on bail and there was enough possibility of his being bailed out and if he is released on bail, he is likely to commit such acts as would be prejudicial to the maintenance of public order.
13. Learned A.G.A. placed reliance on the case of Kartic Chandra Guha v. State of West Bengal 1975 SCC (Cri) 82 (AIR 1994 SC 2149) that even likelihood of his being released on bail could be taken into consideration because bail being the rule and jail an exception, it is usually seen that the Sessions and High Courts are liberal in bail matters, it might be so, but this element of likelihood has to be plausible and in the realm of a resonable feasibility, rather than a fan-ciful proposition, it is In the totality of the context that the issue requires determination having regard to the background of criminal activities attributed to the detenu by the State itself. It will be going too far today that he would have been granted bail just for the asking of it. After all, in such type of cases notice is usually given to. the state to highlight its side of the story; moreover, if the latter deems it appropriate, it could still forestall the release by passing the detention order during the intervening period. A reference was also made to Alijan Mian v. District Magistrate Dhanbad 1983(3) SCR-930 (AIR 1983 SC 1130) in which it was held that merely because there was a pending prosecution and the accused were in jail that was no impediment for their detention under Section 3(2) of the Act if the detaining author -ity was satisfied that their being enlarged on the bail would be prejudicial to the maintenance of 'public order'. This view has been reiterated by the Apex Court in Faisuddin alias Babu Tamchi v. State of U.P. AIR 1984 SC-46. The observations made in these cases are beyond the pale of challenge. The element of likelihood of seeking the bail has to be plausible and in the realm of reasonable feasibility rather than a fanciful proposition. It would be going too far to assert that the petitioner would have been granted bail just for asking of it. It is in the toality of the context that the issue requires determination having regard to the background of criminal activities attributed to the detenu by the State itself. After all, in such type of cases, notice is usually given to the State to highlight its side of the story, moreover if the latter deems it appropriate, it could still forestall the release by passing detention order during the intervening period. In the case of Ramesh Yadav v. District Magistrate Etawah and Ors. 1985 (4) SCC 232 (AIR 1986 SC 315) at page 234, the apex Court observed : at page 316; of AIR
On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order to the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrlal prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.
What was stressed in the above case is that an apprehension of the detaining authority that the accused if enlarged on bail would again carry on his criminal activities is by itself not sufficient to detain a person under the Act. In paragraph. 12 of the report of another celebrated decision rendered in Shashi Agrawal v. State of U.P. 1988 SCC (Cri) 178 (AIR 1988 SC 596) the Apex Court observed thus : at page 598; of AIR
12. Every citizen in this country has the right to have recourse to law. He has the right to move the Court for bail when he is arrested under the ordinary law of the land. If the State thinks that he does not deserve bail the State could oppose the grant of bail. He cannot, however, be indicted from moving the Court for bail by clamping an order of detention. The possibility of the Court of the granting bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reasons apparent on the record that the detenu, if enlarged on bail would act prejudicially to the interest of public order. That has been made clear in Binod Singh v. District Magistrate Dhanbad, 1986 (4) SCC 416 (AIR 1986 SC 2090) at 421 where it was observed :A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be declared then these should have been made apparent. Eternal vigilance was the part of the authority charged with both law and order and public order is the price which the democracy in this country extracts from the public officials in order to protect the fundamental freedoms of our citizens.
Similar view was taken in subsequent decisions in Anand Prakash v. State of U.P. 1990 (27) SCC 67 (AIR 1990 SC 516) (SC); Ahmedhussain Shaikhhussain alias Ahmed Kalio v. Commissioner of Police, Ahmedbad 1990 SCC (Cri)-86 (AIR 1989 SC 2274); Surya Prakash Sharma v. state of U.P. 1994 SCC (Cri) 1691 (1995 All.LJ 777) and Dharmendra Suganchand Chelawat v. Union of India (AIR 1990 SC 1196) (1990 Cri LJ 1232). this Court has also taken a similar view in the cases of Harish Kasana and Atiq Ahmad (Supra) as well as Adesh Kumar v. Karagar Pfataopgarh 1997 U.P. Cr. R-647. What has been stressed in all the above cases is that an apprehension of the detaining authority that the accused, if enlarged on bail would again carry on his criminal activities is by itself not a sufficient ground to detain a person under the act. The second part of the first ground of detention is also, therefore, not available in the instant case.
14. In the rsult, it was a case of commission of the crime of murder for entirely personal reasons and to feed-fat the private grudge. Since the case squarely falls within the domain of breach of 'law and order', the impugned order of detention under the Act with a view to maintain the 'public order' was wholly uncalled for. There appears to be considerable force in the submission of the learned Counsel for the petitioner that the detention order was passed with a view to frustrate and nullify the right of the petitioner to seek bail under the ordinary law.
15. The third count on which the order of detention is challenged is that the petitioner was not supplied the copies of the statements of the witnesses who became hostile and consequently, the petitioner as well as other accused persons were acquitted in respect of the incident which gave rise to Crime No. 194/94 under Section 147/148/149/307/302 I.P.C. referred to in ground No.2 of Annexure 4. As a matter of fact, the second ground could not be ground for detention. It reads that on 5-7-1994, i.e., six years prior to the passing of the detention order against the petitioner, he along with six other accused persons murdered one Giriraj Dubey at Tulsi Smarak Hari Ki Pauri Soron town and threw his dead body in river Ganga. All the accused persons including the petitioner, who were armed with lethal weapons opened fire when the first informant Hari Kumar Dubey and other persons reached the place of occurrence. The petitioner and to her persons were put up for trial but all of them were acquitted by the special Judge, Etah on 7-10-1999 as no witness could muster courage to give evidence against the petitioner and other persons. All the witnesses were said to have staged a complete volte-face and, therefore, were declared hostile. Sri Wali urged that the statement of the hositle witnesses were required to be perused by the petitioner with a view to ascetain as to on what ground they were declared hositle and non-supply of the statements has seriously prejudiced the right of the petitioner to make an effective representation against the order of detention. We have given thoughtful consideration to this aspect of the submission and find that the incident of the year 1994, which constitutes ground number 2 for the detention is, in fact, not a ground for detention but has been referred to for showing that the petitioner detenu has been indulging habitually in committing heinous offences. The sole case of 1994, obviously could not be made a ground for detention. Therefore, it was not necessary for the detaining authority to supply the statements of the hostile witnesses to the petitioner. Moreover, we find that the statements of the hostile witnesses were not germane to the detention order and their non-supply to the petitioner has not caused any prejudice to him in making the effective representation. All other necessary documents pertaining to the incident of 1994 had been supplied to the petitioner. In this connection, a reference may be made to the decision of the Apex Court in Kamarunnissa v. Union of India AIR 1991 SC 1640 (1991 Cri.LJ 2058) in which it was held that the non supply of the documents to the detenu though referred to in the grounds of detention but not relied upon by the detaining authority while arriving at subjective satisfaction to detain would not vitiate detention. In another case Veeramani v. State of Tamil Nadu 1994(1) Judgment Today (Supreme Court) 350, non supply of the statement under Section 161 Cr. P.C. was held to be causing no prejudice to the detenu. In State of U.P. v. Shakeel Ahmad 1995 (4) Crimes 782, it was found that non supply of the report of sponsoring authority to detenu was not mandatory. Taking into consideration the above decisions and the facts stated above, we are of the view that it was not necessary for the detaining authority to supply copies of the statements of the witnesses who became hostile in an incident which had taken place in 1994 for two reasons-flrstly, the said incident could not be a ground for detention and has been mentioned simply with a view to indicate that the past antecedents of the petitioner were not neat and secondly their non-supply did not prejudice the right of the petitioner to make effective representation as they were not relevant or germane to the first ground of detention.
16. We agree with Sri Arvind Kumar, learned A.G.A. that in view of the amended provision of Section 5A inserted by National Security (Second Amendment) Act, 1984 w.e.f. 21 -6-1984 the grounds of detention are sev-erable. Even if the second ground of detention fails, the first ground would stand of its own.
17. The first and the third points to challenge the detention order do not hold good. However, the petitioner has been successful in establishing the second point that the order of detention has been passed not on account of public disorder but with reference to an incident which resulted in breach of law and order. Section 3 of the Act clearly provides that an order of detention may be passed by the detaining authority if it is satisfied with respect to any person that with a view to preventing him from acting in manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services esssential to the community it is necessary so to do. In this case, the order of detention was passed on the ground that criminal act of the petitioner was prejudicial to the maintenance of 'public order'. As found above, the incident, in question, does not fall within the ambit of the expression 'public order' but was merely an instance of breach of 'law and order'. For this reason, the detaining authority was not justified in passing the order of detention of the petitioner.
18. In the result, the petition succeeeds and is allowed. The continued detention of the petitioner pursuant to the detention order dated 10-10-2000, Annexure 2 to the petition, is held illegal. The petitioner shall be set at liberty forthwith.