M.V. Tamaskar, J.
1. The petitioner is mother of the detenu Alloo alias Alim son of Sheikh Hakeem, resident of Naya Mohalla, P.S. Omti, Jabalpur.
2. The District Magistrate, Jabalpur being satisfied that with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order, in exercise of powers under Section 3(3) of the National Security Act passed an order d/-12-10-1993.
3. Copy of the grounds was served on detenu. They are six in number. Along with the copy of the grounds, the detenu was also served with the copies of other documents. The order of detention dt. 12-10-1993 was approved by the State Government, vide order dt. 23-10-1993. The same was placed before the Advisory Board. The Advisory Board found that there was sufficient material for detention and forwarded its report to the Government which confirmed order of the detention of the detenu for a period of one year from the date of detention, vide order dt. 19-! 1-1993.
4. Learned counsel for the detenu has made three submissions challenging the order of the detention. Firstly, that the District Magistrate has no jurisdiction to invoke the powers under Section 3 of the National Security Act, as the notification issued by the State Government conferring the power to take into consideration the grounds, other than, threatened communal harmony, and thereby disturbance of public order. The notification issued by the State Government reads as under:-
'Bhopal, the 28th September, 1993.
F.N. 31-22-80-C-I. - WHEREAS, there are reports with the State Government that certain elements are active or are likely to be active to threaten the communal harmony and to commit any act prejudicial to the maintenance of public order, and to commit acts prejudicial to the security of the State.
AND whereas having regard to the circumstances prevailing in the areas within the local limit of jurisdiction of the District Magistrate, Jabalpur the State Government is satisfied that it is necessary so to do.
NOW. THEREFORE in exercise of the powers conferred by the Proviso to Sub-section (3) of Section 3(3) of the National Security Act, 1980 (No. 65 of 1980), the State Government hereby directs that the District Magistrate, Jabalpur may during the period from 1st October, 1993 to 31st December, 1993, if satisfied as provided in Sub-section (2) of the said section, exercise the powers conferred by Sub-section of the Section 3(3).'
By order and in the name of
the Governor of Madhya Pradesh,
PRADEEP KHARE,
DY. Secretary.'
A reading of the notification clearly shows that certain elements are active or likely to be active to threaten the communal harmony and to commit any act prejudicial to the maintenance of public order, and to a commit acts prejudicial to the security of the State. The said notification cannot be said to be limiting the powers of detention by the District Magistrate only in relation to threaten communal harmony. The notification is vide enough to include any kind of disturbance of public order. The words 'Any act prejudicial to the maintenance of public order' have been interpreted by the Supreme Court which means that the reach of the activities of the detenu should be such which disturb even tempo of the life of the society. The notification cannot be read to be limited for limited purpose as claimed by the counsel for the detenu. The notification does not suffer from any illegality nor the District Magistrate has exercised power not conferred on him.
5. The other ground of challenge is that the District Magistrate has not acted in order to prevent the detenu from acting in any manner prejudicial to the maintenance of public order inasmuch as the affidavit filed by the District Magistrate does not disclose his satisfaction; whether it was in relation to law and order or public order.
6. It may be stated that earlier only an affidavit of a Town Inspector was filed in support of the return. This Court by order D/-23-4-1994 directed the Government Advocate to explain why the affidavit of the District Magistrate was not filed and only by Town Inspector. Ordinarily, an affidavit of the District Magistrate is a must in support of the order of detention passed by the District Magistrate. The officer of the State and the law officer of the State Government have not been taking proper steps in defending orders, of the detention by filing proper affidavits. The extract from the affidavit filed by the District Magistrate reads as under:-
'...These were his habits and were an ordinary thing for him so as to prevent such unlawful activities and to maintain public law and order in the interest of public at large specially keeping in mind the sensitive area of Jabalpur town, I have passed the detention order.'
Even in the present case, affidavit filed is just casual, inasmuch as new phraseology has been coined i.e. 'public law and public order'. Such is foreign to detention jurisprudence. It is well advised that the law officer preparing the return should take care to go through judgments of the Supreme Court which are emphatic regarding satisfaction of the District Magistrate to be stated in the order and affidavit filed in support. Any other expression used in the affidavit discloses non-application of mind of the District Magistrate. The use of expression to 'prevent such unlawful activities and to maintain public law and order in the interest of public at large,' do not suggest that the order of detention was passed, in order to prevent to detenu acting in manner prejudicial to maintenance of public order. Use of expression 'Public Law' does not Convey any meaning. The expression used reflects doubts regarding satisfaction, whether it was with a view to prevent detenu from acting in any manner prejudicial to Public Law, by which, possibly, he, meant, law and order, as, there is no other manner in which word Public Law can be read. The concept of Public order interpreted by Supreme Court is as under at Page 627 of Cri LJ:-
'...Public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity then those affecting '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 security of Slate. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the state. By using the expression 'maintenance of law and order' the Disrtrict Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.'
In Ram Manohar v. State of Bihar, : 1966CriLJ608 (Also in Alijan Mian v. District Magistrate, Dhanbad, : 1983CriLJ1649 :
'...It may be remembered that qualitatively the acts which affect 'law and order' are not different from the acts which affect 'public order'. Indeed, a state of peace of orderly tranquillity which prevails as a result of observance of enforcement of internal laws and regulations by the Government in a feature common to the concept of 'law and order' and 'public order'. Every kind of disorder or contravention of law affects that orderly tranquillity. The distinction between the areas of' law and order' and 'public order' as pointed out by this Court in Arun Ghose v. State of West Bengal. : 1970CriLJ1136 , 'is one of degree and extent of the reach of the act in question on society.' 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. If the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. These concentric concepts of 'law and order' and 'public order' may have a common epicentre', but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act effecting 'public order' from that concerning 'law and order'.'
As also in Ajay Dixit v. State of U.P. : 1985CriLJ487 and stated thus (sic) :-
7. Since satisfaction of the District Magistrate regarding disturbance of public order is not revealed in the affidavit filed, there is complete non-application of mind to the purpose of detention. As such, the order of detantion is liable to be quashed.
8. Lastly we may remind the officers of the State to mention the following details in the return to justify compliance with provisions of the statute:-
i) The date of passing of the order of detention;
ii) Date of service of the order of the detention;
iii) The date of service of the grounds of detention;
iv) The date of reference to Advisory Board and report submitted to the State Government;
v) The date of approval by the State Government;
vi) The date of report submitted to the Central Government as required under the Act;
vii) Date of receipt of the report of the Advisory Board and action taken by the State Government on the report alongwith the period of detention and the date of order of confirmation; and
viii) Date of receipt of the representation, if any, made by the detenu and date of consideration of the representation and decision taken by the authority.
These details must find place in the return if it is to be treated as one effective return in support of the detention order passed by the District Magistrate.
9. The order of detention therefore suffers from the non-application of mind.
The petition is allowed but without any order as to costs. The order of detention is accordingly quashed. The detenu shall be act at liberty forthwith.