M.L. Verma, J.
(1) This petition challenges the 'preventive' detention of the petitioner and is directed against the order of detention dated 7.12,89 passed by respondent No. 1; under Sub-section 2 of Section 3 of the National Security Act, 1980 (hereinafter referred to as 'the Act'). The impugned order was passed with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order The detention order was approved under Section 3 of the Act by the Administrator of Delhi on 18.12.89 in exercise of powers under Section 3(4) of the Act The order of detention was served on the petitioner on 13.3.90. This writ petition was filed as the representation of the petitioner to the Advisory Board under the Act failed. A writ in the nature of habeas corpus turn the production of the petitioner has been sought, it has been prayed in the petition that the order of detention be quashed. An order of release of the petitioner setting him at liberty is also sought.
(2) At the time of the order of detension; the petitioner was aged about 24 years. He was a Naik in the Border Security Force, Delhi and was under suspension since 9 8-86. His father is a Head Constable in the Police. His only sister is also a Sub Inspector of Police. He had been residing with his father in Quarter No 12, Police Station. Sadar Bazar, Delhi. In the grounds of detention he has been described as a 'bad character of Bundle 'A' of Police Station Sadar Bazar, Delhi'; that is to say he is a 'history sheeter'. It has also been referred/noticed in the said grounds that he indulges in acts of violence, house trespass, criminal intimidation, attempt to murder, robbery, riots and offences punishable under the Arms Act. His previous involvements in various alleged criminal acts in the years 1986 and 1987 have also been referred to the offences for which be is charged; which are pending trial; have been mentioned. Thereafter his criminal activities during the two years prior to the impugned order, which from the ground of detention, have been set out in detail Three such incidents are of the year 1988 and four are of 1989 as have been enumerated in the grounds of detention on which the impugned order is based.
(3) The aforesaid activities are incidents that occurred on 11-5 88, 27-6-88. 14-11-88, 14-4-89 and 22-8-89. Apart from those, the petitioner was also found to be in possession of a 32 bore stolen revolver during the course of investigations pursuant to a report by one Shri Om Parkash made on 17-5-89. Again on 26-8-89 the petitioner was apprehended and a 32 bore revolver of Smith and Wesson make, loaded with 6 cartridges, was recovered from him On the basis of these incidents it has been mentioned in the grounds of detention that it was evident that the petitioner was a dangerous and desperate criminal and that he hires himself out to persons who wish to terrorise other people it is also written in the grounds that his activities proved to be a menace to public at large The order and grounds of detention were served upon the petitioner Along with the annexures mentioned therein on 13-3-90 as noticed above.
(4) Mr. R.L Mehta. learned counsel for the petitioner has raised 4 points in support of the petition and the contention that the detention order is bad and should be quashed. They are as follows :
(A)That there has been an inordinate, unreasonable and unexplained delay of three months and five days in serving upon the petitioner the order of detention and that in any event the Explanationn for the delay is not satisfactory. The delay casts serious doubts on the genuiness of the subjective satisfaction of the detaining authority and on account of such delay the nexus and link between the apprehended activities of the petitioner and his detention to prevent him from indulging in such activities has snapped.
(B)That the order of detention was served on the petitioner when he was in judicial custody/Jail. thereforee, it was necessary, in law, for the detaining authority to apply his mind afresh whether preventive detention of the petitioner was necessary since he was already in custody. There could have been no reasonable apprehension that the petitioner would indulge in activities which are detrimental to public order because he was already in custody and there was no likelihood of his being released on 3ail. In any case the detaining authority had to apply his mind again in this regard which was admittedly not done in this case hence the order of detention ought to be quashed.
(C)That the grounds of detention were stale and none of the incidents enumerated in those grounds are such as can be said to disturb the public order. According to Mr. Mehta, they are only matters of law and order for which an order of preventive detention should and could not have been passed. He submitted that the petitioner was being dealt with under the ordinary and normal laws of the land and facing trial in respect of all those incidents.
(D)That all the documents which from the basis of the order and the grounds of detention and which were relied upon taken into consideration for the purpose were not furnished to the petitioner to enable him to make an effective representation against the impugned order. For this reason also, Mr. Mehta submitted that the impugned order ought to be quashed.
(5) Relying upon the judgment of the Supreme Court in the Case of Ayya alias Ayub v. State of U.P. reported in : 1989CriLJ991 , Mr. Mehta submitted that in matters of preventive detention strict compliance with the letter of the law must be insisted upon to ensure that all steps had been taken regularly and that there has been a complete compliance with the procedural afeguards. He also submitted that as soon as rule nisi was issued in a writ of habeas corpus it was for the State to justify the detention He pointed out that in the case to Mohinuddin v. District Magistrate, Beed & Ors. reported in : [1987]3SCR668 ; the Supreme Court had laid down that the rule that the petitioner cannot be permitted to raise grounds; not taken in the petition; at the time of hearing, cannot be applied to a petition for the grant of a writ of habeas corpus and such a petition should not be rejected on grounds of imperfect pleadings. He submitted that it was for the detaining authority to satisfy the Court that the detention wan not illegal or wrongful and that the petitioner was not entitled to the relief claimed.
(6) Ms. Kamini Lao, learned counsel for the respondents raised a preliminary objection; that the Advisory Board to whom the representation was made by the petitioner against the order of detention had already opined that there was sufficient ground for the detention of the petitioner. She, thereforee, submitted that this petition ought to be dismissed. Mr. Mehta submitted that the opinion of the Advisory Board was not final. In support of this contention he cited the following judgments of the Supreme Court :
(I)Prabhu Dayal Deorah etc v. District Magistrate, Kamrup, reported in : 1974CriLJ286 ,
(II)Mohinuddin v. District Magistrate, Beed & Ors. reported in : [1987]3SCR668 .
(III)Akshoy Konai v. State of West Bengal : 1974CriLJ405 .
He pointed out that in the case of Akshoy Konai (supra) the Supreme Court had held that the Advisory Board functions in an advisory capacity and such advisory opinion can scarcely be an appropriate subject matter of review or scrutiny by the judicial courts or tribunals Besides, be submitted that it had been held in this case that the opinion of the advisory board; except when it was in favor of the detenu; was not even final and binding on the Government. He, thereforee, contended that there was no question of the opinion of the Advisory Board having any binding effect on the Court. He also referred to the observation of the Supreme Court in paragraph 16 in Prabhu Dayal's case (supra) that 'as to what the Advisory Board might do in the exercise of its jurisdiction is not the concern of this Court'. It appears to me that the contention of Mr. Mehta has merit. The preliminary objection on behalf of the State as noticed above is rejected.
(7) Dealing with his first point, Mr. Mehta contended that the order of detention had been passed on 7-12-89 and was admittedly served on 13-3-90 i.e. after a period of three months and five days. According to Mr. Mehta, this delay; which was unexplained; was fatal insofar as it vitiated the subjective satisfaction of the detaining authority to detain a person so as to prevent him from indulging in any activities prejudicial to public order. He submitted that if the purpose was to prevent a person from committing acts detrimental to public order then such an order must be served on the detenu with alacrity and promptitude. He further submitted that in any event the Explanationn, if any. for the delay was unsatisfactory and, thereforee, also the order 'of detention deserved to be quashed.
(8) An affidavit of the executing officer had been filed on 31-7-90 after an order of this Court on 25-7- 90. In this affidavit, it is stated that the impugned order was handed over to him by the S.H O, after about one week of the issuance of the order. An another affidavit dated 13-8-90 was filed by the executing officer after the discrepancies in the earlier affidavit were highlighted in the rejoinder affidavit dated 1-8-90 filed on behalf of the petitioner. With the said affidavit dated 31-7 90, a list of some dates of the daily diary entries was filed. This shows that till 10-1-90 no steps were taken for serving he order on the petitioner. The averment made in paragraph 4 of this affidavit, that the executing officer bad 'visited at ast once a week personally' is not only vague but contrary to the entries in the daily diary. With the affidavit dated 13-8-90 the details of the daily diary have been filed.
(9) The dates mentioned in the list of dates of the daily diary entries do not fully tally with the details of daily diary entries. Beaides, there is no Explanationn whatsoever why no action was taken to serve the order for nearly one month. Even thereafter, from 10.1.90 to 21-2-90 there is no entry in the daily diary and this gap of 1-1/2 months is also totally unexplained.
(10) In the list filed with the affidavit of 31-7-90 there appears an entry at SI. No. 3 dated 27-1-90 but that does not tally with the details filed with affidavit of 13-8-90. There is no such entry in this detailed statement. Similarly, in the list filed with the affidavit of 31-7-90; 22.12.89 is mentioned at Seriall No. 6, after 22-2-90 to suggest that an attempt was made on 22-12-89 to serve the impugned order on the petitioner. However, there is no such entry on 22-12-89 in the details tiled with the affidavit 0f 13.8.90. On 24-12-89 the marriage of the petitioner's sister was performed at his father's residence It is the case of the petitioner that turn a few days even before the marriage he was busy with its preparations and had attended the wedding. It was urged that if any attempt had been made to serve the petitioner be could have been found there.
(11) In the detailed extract of the Dd entries filed with the affidavit of 13-8-90 whenever the executing officer went to serve the impugned order on the petitioner, he stated so specifically. There are various other entries on different dates where it is only recorded that the official concerned had gone on official work. An attempt has been made on behalf of the Slats to show that these entries also related to the attempts made for serving the impugned order on the petitioner. This contention on the face of it is untenable in view of the specific entries relating to the attempts turn serving the impugned order on the petitioner. Similarly, in the list of Dd entries annexed to the affidavit of 31-7-90 entries from 22-2 90 to 9-3-90 have been mentioned but in the details of those entries filed with the second affidavit dated 13-8-90 no details are given in respect of these dates. On 22-2-90 it is recorded that an attempt was made to search the petitioner and then till 13-3 90 again there is a big gap. Consequently, it appears that apart from 10-190, 21st and 22nd February, 1990, no attempt was made to serve the petitioner and there is no Explanationn for this.
(12) It was urged on behalf of the State that the petitioner was evading the service and was absconding and concealing himself and, thereforee, it was not possible to serve the impugned order on the petitioner. This argument is untenable in the light of the attempts made to serve the order. Ms. Lao also submitted that the petitioner had not been attending the proceedings in various criminal cases and had actually jumped bail resulting in his surety having to pay a sum of Rs. 7,000.00 . She also referred to certain extracts from the daily diary filed with yet another affidavit of the executing officer dated 30 8-90. With reference to this she urged that on different dates Head Constable and other Constables bad made entries that they had gone in search of 'P.C.'. She submitted that the abbreviation 'P.C.' stood for 'proclaimed offender'. An attempt was made to show that these entries were in respect of the efforts made for serving the warrants of detention on the petitioner. However, this argument is also untenable for the reason that these entries do not relate to the steps taken by the executing officer nor are they relatable to any steps for serving the petitioner nor is it the case of the State that the petitioner was a proclaimed offender.
(13) MR.MEHTA cited various judgments of the Supreme Court in support of his contention that inordinate, unreasonable and unexplained delay between the date of order of detention and the arrest of the detenu will lead to the conclusion that live and proximate link between grounds of detention and the purpose of detention has snapped. He referred to the judgment of the Supreme Court in the case of Nizamuddin v. State of West Bengal, reported in : 1975CriLJ12 , wherein it was held that 2-1/2 month's delay in serving the order of detention would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority : otherwise action would have been taken with greater promptitude to arrest the person. Reliance was also placed by Mr. Mehta on the judgments or the Supreme Court in the case of S K. Serajul v State of West Bengal reported in : AIR1975SC1517 and in Bhawar Lal Ganesh Malj v. State of Tamil Nadu, reported in : 1979CriLJ462 in support of this contention. In the case of Shafiq Ahmed v. District Magistrate, reported in , no attempt was shown to have been made from 15th April, 1988 to 12th May, 1988 to arrest the petitioner nor was there any Explanationn for the gap between 29-9-88 and 22-10-88. It was held in that case that the undue delay and conduct of the authorities betrayed that there was any real and genuine apprehension that. the petitioner in that case was likely to act in any manner prejudicial to public order. Reference was also made to the judgment of the Supreme Court in the case of T.A. Abdul Rehman v. State of Kerala reported in : 1990CriLJ578 . In that case the detention order was passed: on 7-1087 and the detenu was arrested on 18-1-88. There was no reasonable Explanationn for the delay and on this ground as well as on other grounds in that case the order of detention was quashed Mr. Mehta also cited the judgment of this Court in the case of Puran Singh v Union of India & Ors reported in 1990(3) DL 165 and submitted that in that case the petitioner was at large for three months after the order of detention and during this period there no act was alleged to have been committed by the petitioner which disturbed public orders In Puran Singh's case, the detention order was quashed.
(14) Miss Lao on the other hand has cited judgments to show that merely because of delay the live and proximate link did not snap She has also relied upon the judgment in the case of Bhanwar Lal Ganesh Mal Ji (supra) where it was also held that if the delay was on account of the conduct of the detenu in evading arrest, then the link was not snapped but strengthened With reference to the judgment of the Supreme Court in the case of Abdul Salam v. Union of India & Ors reported in : 1990CriLJ1502 she submitted that it had been held that there was no decision where any Court had gone to the extent of holding that a mere delay in arresting the accused rendered the detention invalid. She pointed out that in that case the delay of 2-1/2 months had been explained and was found to be satisfactory She also relied upon the judgment of the Supreme Court in the case of M Ahamedkutty v. Union of India & Ors, reported in : 1990(47)ELT188(SC) and submitted that in that case the detenu had been reporting before the Superintendent (Intelligence) once a week. This fact was not known to the Superintendent of Police. It was held that there was no inordinate or unexplained delay in the execution of the order of detention because on the Tacts of that case the whereabouts of the detenu were not known and he was absconding. She, thereforee, submitted that the fact that the petitioner may have attended the wedding of his sister on 24-12-89 cannot be urged to show that he was not evading service of the impugned order since the executing officer was on leave during that period and he was not present at the wedding. She also pointed out that the father of the petitioner who had sworn the affidavit in support of the writ petition had in fact complained to the higher police authorities against harassment by the police in connection with the whereabouts of the petitioner and further that the father bad stated that he had snapped his relations with the petitioner and, thereforee, also it was unlikely that the petitioner could have attended the wedding of his listed at his father's residence.
(15) As noticed above, it appears that except on 10-1-90, 21st and 22nd February, 1990 no attempt was made to serve the order of detention on the petitioner when finally on 13-3-90 the order was served. On the basis of the material placed on record, I am of the opinion that these long gaps are totally unexplained As no attempt appears to have been made during these gaps. it is not possible to accept the contention that the petitioner was either avoiding or evading the service of summons or for that matter either absconding or concealing himself. In view of the inordinate delay, which is unexplained, I am of the opinion that the live and proximate link snapped and the order of detention deserves to be quashed. During this period there is no allegation nor has any material been brought on the record to show that the petitioner acted in any manner prejudicial to the maintenance of public order even though admittedly the petitioner was at large till he was taken into judicial custody on 13-3-90. The fact that non-bailable warrants were issued because he jumped the bail and that one of the sureties had to pay Rs. 7,000.00 for the aforesaid reason also does not help the case of the State.
(16) The argument put forth by Ms. Lao that the petitioner has withheld material fact from the Court and had not come to the Court with clean hands. She urged that he had not brought to the notice of the Court that his father had complained to the Deputy Commissioner of Police, Delhi regarding the 'harassment' by the police, and that the father had levered relations with the petitioner. It was submitted that in the petition it had been wrongly alleged that the petitioner had been wrongly served while in Tihar Jail, Delhi while later he took the stand that the impugned order had been served while he was in judicial custody. She, thereforee, submitted that the petitioner tried to mislead the Court, hence the petitioner was not entitled to the relief sought. This argument is unsustainable in the light of the judgment of the Supreme Court in the case of Mohinuddin v. District Magistrate, Beed & Ors. (supra). The complaint made by the petitioner's father has no material bearing on this case. nor for that matter, the fact that . the father had levered relations with the petitioner.
(17) In support of the second point that the impugned order is bad as it was served when the petitioner was in judicial custody Mr. Mehta referred to paragraph 4 of the counter-affidavit dated 17-7 90. There it is alleged that the petitioner was apprehended in Tis Hazari Courts where he had gone to surrender. He then referred to paragraph 7 of the additional affidavit of the executing officer dated 31-790. In this paragraph it is alleged: that the order of detention was executed when the petitioner was about to enter the Court of Chief Metropolitan Magistrate, Tis Hazari Courts, Delhi. and that there he was apprehended and detention order served outside the Court. He has submitted that the said allegations were not only wrong but false. He pointed out that on 13-3-90 when admittedly the impugned order was served on the petitioner he had already been taken into judicial custody under orders of the Chief Metropolitan Magistrate. He urged that the petitioner had been served with the impugned order and the annexures thereto when be was confined in the judicial lock up.
(18) MR.MEHTA referred to the rejoinder affidavit on behalf of the petitioner dated 1-8-90 wherein ihe report of the executing officer in the daily diary at entry No. 20-A dated 13-3-90 maintained in the judicial lock up of Tis Hazari Courts has been reproduced. It reads thus:
'REPORT regarding detention: At about 12/0.1 P.M., it is submitted that the order of detention No. 206/D/LA (jndl)89/535-36 dated 7-12-89, New Delhi were served on the accused Sarbjit Singh S/o Harbans Singh, r/o Q. No. 12. Police Station, Sadar Bazar, Delhi in judicial lock up after proper receipt as the accused was sent to the judicial lock up by the Magistrate in case No. 13/87. Copy of the order of detention is attached with the warrant. Report is submitted. S.I. Jasbir Singh'.
He pointed out that the correctness of this report has not been traversed.
(19) Mr. Mehta, thereforee, submitted that the respondents had tried to mislead this Court and in fact the petitioner was served with the order of detention while in judicial custody and lock up He urged that since admittedly the detaining authority did not apply his mind again as to whether the order of detention should be served on the petitioner in spite of his being already under detention, the impugned order must be quashed as per the law laid down by the Supreme Court. He submitted that the report of the executing officer as extracted above clearly belied the averments made in the two additional affidavits of the executing officer.
(20) Mr. Mehta referred to a judgment of the Constitution Bench of the Supreme Court in the case of Rameshwar Shaw v. District Magistrate, Burdwan and anr reported in : 1964CriLJ257 . wherein it has been laid down is in paragraph 13 that :
'IT is obvious that before an authority can legitimately come to the re conclusion that the detention of the person is necessary to prevent be him from acting in a prejudicial manner, the authority has to be al satisfied that if the person is not detained, he would act in a pre-of judicial manner and that inevitably postulates freedom of action on to the said person at the relevant time. If a person is already in as jail custody how can it rationally be postulated that if he is not or detained, he would act in a prejudicial manner At the point ch of time when an order of detention is going to be served on a of person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention.'
(21) MR.MEHTA also referred to the judgment of the Supreme Court in the case of Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors. reported in : 1986CriLJ1959 . In that case the petitioner had not surrendered when the order of preventive detention was passed but he had already surrendered when the said order was served upon him. It was held that at the time of service of the order of detention though justified when it was passed; there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. In paragraph 7 of this judgment it has been laid down that if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. Another judgment of the Supreme Court in the case of N. Meera Rani v. Government of India reported in : [1989]3SCR901 was cited In this case also it was held that an order of detention would be invalid it the same was made when the detenu was already in jail custody and there was no prospect of his release. In the case of Ranjit Singh & anor. v Union of India reported in 1989 Crl L.J. 152, it was held that service of order of detention while the detenu was in judicial custody was invalid and the detention order was, thereforee, liable to be quashed.
(22) Mr. Lao submitted that even if the petitioner was in judicial custody and jail the order of detention having been served upon him while in such custody would not be invalidated per se and she relied upon the judgment of the Supreme Court in the case of N.Meera Rani (supra). She also referred to the judgment of the Supreme Court in the case of Alijan Mian v. District Magistrate, Dhunbad & Ors. reported in : 1983CriLJ1649 wherein it has been held that if the detaining authority was aware that the detenu was already in jail custody and yet such authority was satisfied that the detenu was likely to be released on bail and, thereforee, it was necessary to prevent him from acting in a manner prejudicial to public order, the order would be valid. However, it may be noticed that in this very case the Supreme Court has observed in paragraph 9 that if a detenu was already in jail and had to remain in jail for a pretty long time then the position would be different. Lastly, Ms. Lao relied upon the judgment of the Supreme Court in the case of Syed Farooq Mohd. v. Union of India & Others : 1990CriLJ1622 . In this case the order and grounds of preventive detention were served on the detenu immediately after his arrest by the custom authorities. She, thereforee, sought to urge that the order of detention having been served on the petitioner while in judicial custody/jail without the detaining authority applying its mind at that stage, the detention order was not invalid However, this judgment does not help the respondent for the reason that in paragraph 12 itself it has been observed that the detenu was not arrested and imprisoned in jail but the order of detention was served when he was arrested by the custom authorities.
(23) It appears to me, thereforee, that the detention of the petitioner pursuant to the impugned order must be quashed on this ground also as I find that there is merit in the second point raised by Mr. Mehta. Mr. Mehta has fairly submitted that since the petitioner had jumped bail it was absolutely unlikely that he would be enlarged on bail. He submitted that if the impugned order was to be quashed then in the various cases pending against the petitioner whatever sentence, if, any. is imposed on him, he will have the benefit of the period of preventive detention.
(24) On the point; that the incidents referred to in the grounds of detention were stale and were cases of law and order and did not disturb public order; numerous judgments were cited by Mr. Mehta. All those judgments need not be noticed here because the law on the subject is well settled. It is settled law that the distinction between cases of law and order and disturbance of public order is fine The distinction lies neither in the nature, nor in the qualify of the act, but in the degree and extent of its reach upon society although there can be overlapping In one case an act may affect specific individuals only so as to be a problem of law and order while in another it might affect public order. The act by itself 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 its prejudicial to the maintenance of public order (See Ashok Kumar v. Delhi Admn. : 1982CriLJ1191 ). The question whether a person has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of public order is one of degree and the extent of the reach of the act upon the society. The test is whether it leads to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of a public order or does it merely affect an individual without affecting the tranquility of the society (See Ajay Dixit v. State of Uttar Pradesh : 1985CriLJ487 .
(25) Mr. Mehta has urged that none of the incidents in the grounds of detention can be said to be such as affecting the tranquility of a society or any locality. They are only alleged offences against individual persons. None of them can be said to affect and terrorize the community in general. Besides the incidents prior to 1988 are stale should not have been taken into consideration while passing the impugned order. He submitted that. however, serious an act, unless it had an affect on the tranquility of the society in general, it could not be said to be a matter of public order and continued to be a problem of law and order.
(26) The question whether a problem is one of law and order or public order depends on the facts and circumstances of each case which have to be seen in the background of surrounding circumstances and the overall impact thereof If an act has an impact on public tranquility and potential to disturb such tranquility then undoubtedly it would be matter of public order. Even one incident satisfying the above lest can he a problem of public order as against law and order.
(27) Mr. Mehta submitted that each and every incident mentioned in the grounds for the years 1988and 1989 was only against specific individuals and cannot be said to be such as disturbed the tranquility of the general public so as to be a matter of disturbing public order. He submitted that the repetition of the words that an incident created a sense of alarm or scare of a feeling of insecurity in the minds of the public of anarea, and the person who was responsible for that incident acted in a manner prejudicial to the maintenance of public order which affected even tempo of life of community is not sufficient. He submitted that there should be material on record to show that the reach and potentiality of the alleged incident was so. great as to disturb the normal life of the community in a locality or it disturbed public tranquility. He submitted that in the absence of such material it cannot be said that such an action resulted in the disturbance of public order.
(28) On the other hand, Ms. Lao vehemently urged that the petitioner had been indulging in criminal activities continuously and has been spreading terror in the public in general. She stated that the petitioner was a Naik in the Border Security Force and the son of a Head constable as well as the brother of a Sub-Inspector Sister in the police. She submitted that if a person belonging to a disciplined police force indulged in such activities as are enumerated in the grounds of detention then the matter became even more serious ; insofar as a person who was to be a protector of the law indulged in activities for terrorising the people. She particularly referred to the incidents at Seriall Nos. 2. 3, 4 and 6 in respect of which Fir No. 93 dated 27-6-88, Fir No. 304 dated 15-11-88, Fir No. 134 dated 15-4-89 and Fir No. 304 dated 258-89 were lodged. She vehemently urged that these incidents clearly show that the petitioner was terrorising people in the localities and these were not incidents which effected individuals alone but the public in general. She also pointed out that in the other two incidents the petitioner was apprehended being in illegal possession of fire arms which were for terrorising the people. Consequently, she submitted that it was clearly a case which was a matter of public order and not merely a problem of law and order. With reference to the Fir No. 304 dated 25-8-89 she pointed out that the incident in the Hyatt Regency Hotel New Delhi left no manner of doubt that the petitioner was disturbing public tranquility. She referred to a judgment of this Court in the case of Bhagat Ram v. The Administrator, Union of Territory of Delhi, Crl. W. No. 218/86, where also an incident in a Guest House was held by this Court to be one which effected the public order. The incident in the Hyatt Regency Hotel is very similar to the one in Bhagat Ram's case (supra).
(29) As regards the contention that the grounds were stale, Ms. Lao rightly submitted that those matters were mentioned in the grounds of detention only as historical background and they were not the grounds on the basis of which the order of detention bad been passed. As a matter of fact, Mr. Mehta also did not seriously dispute this.
(30) I have given my serious consideration to the grounds of detention and keeping the totality of circumstances lam of the opinion that the incidents in the grounds of detention which form the basis of the impugned order are not merely matters of law and order but affect the public order. This point urged by Mr. Mehta is, thereforee, without merit and is rejected.
(31) Lastly, Mr. Mehta submitted that various documents that were relied upon and were considered while passing the order of detention had not been supplied to the petitioner. The grievance made was that the suspension order passed by the Bsf against the petitioner bad not been supplied to the petitioner. Similarly the statements made under Section 161 of the Code of Criminal Procedure as well as the daily diary and the police challans in respect of the incidents enumerated in the grounds of detention had not been supplied to the petitioner He further submitted that the history sheet being Bundle 'A' had not been supplied to the petitioner, nor was the report of Rakesh Kumar dated 27-6-88 made available to the petitioner. He submitted that consequently the petitioner was prejudiced insofar as he could not make adequate representation to the Advisory Board against the order of detention. In this connection he relied upon the judgment of the Supreme Court in the case of Kirit Kumar v Union of lndia, report in : [1981]2SCR718 . He submitted that anything which had entered into the mind of the detaining- authority for arriving at the subjective satisfaction must be given to the petitioner
(32) Ms. Lao, on the other hand, pointed out that every document which formed the basis of the order of detention as enumerated in the grounds of detention had been supplied to the petitioner. She submitted that matters which are referred to as historical background are not the basis of ground for that matter of subjective satisfaction. It is only such material as is relied upon and taken into consideration for arriving at the subjective satisfaction to pass the order of preventive detention which has to be supplied to the petitioner. She submitted that the documents or material to which casual reference is made in the grounds of detention need not be given She submitted that it had been held by the Supreme Court in Abdul Sattar Abdul Kadir Shaikh v. Union of India, reported in : (1990)1SCC480 that where a request is made for the supply of certain documents, which are declined, what is to be seen is whether the detenu was in any way handicapped in making an effective representation owing to such refusal In paragraph 12 of the judgment it has been observed by the Supreme Court that mere noneupply of any document ; whatever be its nature ; did not amount to denial of opportunity under Article 22(5) of the Constitution.
(33) Ms. Lao also referred to the judgment of the Supreme Court in the case of Wasi Uddin Ahmed v. The District Magistrate, : 1981CriLJ1825 in support of her contention that the duty to disclose all material taken into account by the detaining authority in making the order of detention did no require to disclose facts which were of public interest and, thereforee, the authority was not bound to disclose intelligence reports and it was also necessary to supply the history sheet, if any. She submitted that it had been. held by the Supreme Court in the case of Khudiram Das v. State of West Bengal, reported in : [1975]2SCR832 that non-disclosure of history sheet did not invalidate the order of detention. She also submitted that it had beer. held by a Division Bench of this Court in the case of Surender Jeevan Bhai Jhaveri and Ors. v. B.B. Gujral reported in 1979 Crl L.J. 80 that as long as the grounds supplied to the detenu cannot be termed vague, it cannot be held that he had been deprived of the right of effective representation.
(34) It appears to me that this point raised on behalf of the petitioner does not have merit. The annexures to the order and grounds of detention had been supplied to the petitioner. The copies of all the first information reports were supplied to him. There is no reference to any entries of daily diary or police challans or statements of any of the persons under Section 161 Cr.P.C. either in the order of detention or in the grounds of detention. thereforee, it cannot be said that those documents were before the detaining authority and went into the formation of subjective satisfaction for passing the impugned order Similar is the position with regard to the report of Rakesh Kumar dated 27-688. The first information report pursuant to the report of Rakesh Kumar had been supplied to the petitioner. The order of suspension of the petitioner by Bsf as well as the petitioner being a history sheeter i.e. a bad character of Bundle 'A' were referred, to only as a historical background and cannot be said to have been considered for the subjective satisfaction of the detaining authority for passing the impugned order. Consequently, this point urged on behalf of the petitioner is rejectee.
(35) Finally the result is that even though I am of the opinion that the incidents mentioned in the grounds of detention are such as are matters of public order, however, in view of the fact that there is unexplained, inordinate and unreasonable delay in serving the order of detention as well as the fact that the said order had been served when the petitioner was already in judicial custody/Jail and there was no application of mind of the detaining authority at this stage whether in spite of his being in custody it was necessary to detain the petitioner under preventive detention, thereforee, this petition must succeed. Consequently, the impugned order of preventive detention bearing No. F206/8/LA (Judl) 89/535-36 dated 7-12-89 is quashed. No orders regarding the petitioner's release is being made as he is already in Judicial custody in connection with the various criminal cases pending against him.