ORDER
G.D. Sharma, J.
1. This Habeas Corpus Petition has been filed by Sh Surinder Singh, who is the real brother of the detenu Davinder Singh alias Ghushu, who vide order No. 41-43/PSA dated 3-7-1997 (passed by respondent No. 2) was taken into preventive custody under the provisions of the J.& K. Public Safety Act, 1978 (hereinafter to be referred as the Act). This order has been challenged on the grounds that the detenu is a peace loving citizen of India and never been convicted by any competent Court of law, but has been shown as a hardened criminal whose activities are sald as prejudicial to the security of the State. The detenu was arrested on 23-6-1996 by the Incharge Police Post, Janipura and subsequently detained by respondent No. 2 on 3-7-1997. No copy of the impugned order was ever provided to the detenu in order to enable him to make a representation to the Government which suffered from the inherent defect that it was passed without the subjective satisfaction of the detaining authority. It was not approved by the Government within 12 days from the date of its passing as is envisaged under Sub-clause (4) of Section 8 of the Act. The order of detention and the grounds of detention are joint and as such,. it is not sustainable under law. No material for making a representation to the Government was ever supplied to the detenu. The detenu is under Matric and knows only Hindi language, whereas, the grounds of detention are in English language. He could not understand the contents of the grounds of detention and thus was prevented from making any representation. The case of the petitioner was never referred to the Advisory Board. The events mentioned in the grounds of detention are old and stale in nature. The occurrences are of the year 1993 and 1996, whereas, the detention order was passed in July, 1997. These grounds could have no relevancy for detaining the detenu. It is also alleged that the Act is ultra vires to the Constitution. The compensation in the amount of Rs. 50,000/- is claimed for illegal detention.
2. Respondent No. 2 has rebutted these allegations by stating that the detenu has a long track record of his involvement in various heinous criminal cases such as registration of FIR No. 206/90 in Police Station, Kana Chak for offences under Sections 382/324/323/34, RPC; FIR No. 62/92 registered in Police Station, Kana Chak for the commisison of offences under Sections 307/34, RPC; FIR No. 77/93 registered in Police Station, Pacca Danga, Jammu for commission of offence under Section 307/34, RPC; FIR No. 69/93 registered in Police Station, Satwari under Sections 302/120-B, RPC and 3/5, Indian Arms Act, 3/4 TADA; FIR No. 84/ 94 registered in Police Station, Nagrota under Sections 363/366, RPC and 3/25 Indian Arms Act; FIR No. 105/96 registered in Police Station, Kana Chak for the commission of offences under Sections 429/452/147/148, RPC read with Section 3/25, Indian Arms Act. The detention order was passed after proper application of mind and subjective satisfaction. It is denied that the detenu stood arrested on 30-6-1997 but plealded that the detention order in question was passed1 on 3-7-1997 which was later on served upon him. The Government had approved the detention order within time and the detention order was separate which accompanied the grounds of detention. The grounds of detention along with the relevant documents were sent to the concerned Superintendent Jail for handing over to the detenu. The case of the detenu was referred to the Advisory Board within the statutory period.
3. Heard the arguments.
4. It has been contended on behalf of the detenu that no material was supplied to him to enable him to make a representation to the Government. The learned AAG has controverted the plea by referring to the relevant record of the detaining authority and on page 17 thereof, there is a receipt executed by the detenu which shows that the grounds of detention were received by him in Sub Jail, Jandi Fort, Hira Nagar on 10-7-1997. It is also mentioned in this receipt that the grounds of detention consisted of three leaves. This is thus established that no copy of any FIR was supplied to the detenu which has a mention in the grounds of detention. The basis of this detention are the criminal activities of the detenu reflected in the F.I.Rs. pertaining to the years 1990 to August 3, 1996. From this list of criminal activities two incidents are of seriousnature as the allegations are for the commission of murders. The first incident has been reflected in FIR No. 77/93 which was registered in Police Station, Pacca Danga, Jammu and the allegations are that on February 12, 1993 the detenu along with his associates namely, Sikander alias Billu had commmitted the murder of Sanjiv Singh in Fattu Chogan Mohalla of Jammu City. The second incident is contained in FIR No. 69/93 which is registered in Police Station, Satwari for the commission of offences under Sections 302/120-B, RPC, 3/25, Indian Arms Act and 3/4, T.A.D.A. Here the allegations are that the detenu along with his associates, namely, Bunty and Mohinder Singh R/O Chatha and Ors. armed with deadly weapons i.e. pistols and revolvers had committed the murder of Ajaib Singh. The contents of FIR No. 77/93 show that nowhere the name of the detenu has figured therein however, the contents of FIR No. 69/93 (of Police Station, Satwari) reveal that the name of the detenu had no-doubt figured in the 'column. of the accused' but in the contents he is missing. There are five accused who have been named therein. Offence falling under Section 302, RPC is non-bailable and for the grant of bail an accused has to make out a special case. It is not known from any record how the detenu is at liberty? No explanation is coming from the prosecution and its benefit will be reaped by the detenu. No copy of any of these FIRs which have been mentioned in the grounds of detention was ever supplied to the detenu and this is an infringment on his statutory right to make a representation to the Govt. This alone ground is sufficient to quash the order in question.
5. Be that as it may, the impugned order does not survive on the allegations which are made the basis of passing it. These grounds consist of six criminal acts. The first incident is of January 28, 1990 (FIR No. 206/90 of Police Station, Kana Chak). The second incident is of April 7, 1992 FIR No. 62/92 of Police Station. Kana Chak). The third incident is of Feb. 12, 1993 (FIR No. 77/93 of Police Station, Pacca Danga, Jammu). The fourth incident is of April 18, 1993 (FIR No. 69/ 93 of Police Station, Satwari). The fifth incident is of June 6, 1993 (FIR No. 84/93 of Police Station, Nagrota) and the sixth incident is of August 3, 1996 (FIR No. 105/96 of Police Station, Kana Chak).
6. The latest incident is of August 3, 1996 when the impugned order was passed On July 3, 1997 i.e. after a gap of eleven months. All other five incidents pertain to the years from 1990 to 1993. These five incidents are too old and stale to make out a case for the detention of the detenu. The last incident is also of eleven months old and it too cannot be said proximate to the order of detention. The Apex Court in the case of Kamlakar Prasad Chaturvedi v. The State of M.P. AIR 1984 SC 211 : (1983 Cri LJ 1928) has held that it is not open to the detaining authority to pick up an old and stale incident and hold it as the basis of an order of detention under Section 3(2) of the National Security Act. The Act gives the power to the Government to detain a person with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order. Under proviso II of Clause (b) of Section 8 of the Act, the term 'acting in any manner prejudicial to the public order' has been defined in the following manner :-
(b) 'acting in any manner prejudicial to the maintenance of public order' means -
(i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of Section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order.
7. It is a settled proposition of law that 'public order' is a distinct term than the term 'law and order'. The distinction between these two 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 life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. 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 affecting 'public order' from that concerning 'law and order'. The question to ask is : Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it effect merely an individual leaving the tranquillity of the society undisturbed. This question has to be faced in every case on its facts. The Apex Court in the case of Smt. Victoria Fernandes v. Lalmal Sawma AIR 1992 SC 687 : (1992 Cri LJ 702) applied this test to the facts of the case which were before it. In that case the incident relied on for ordering preventive detention was a solitary act of assault on journalist coupled with two acts of threats to journalists. The said incidents were not of such magnitude and intensity as to be considered as having the potentiality to disturb the even tempo of life of the community and thereby constitute acts prejudicial to the maintenance of public order. Consequently, the detention order on such incident was set aside.
8. Adverting to the facts of the present case the latest incident of 1996 (FIR No. 105/96 of Police Station, Kana Chak) is to the effect that the detenu along with associates had demanded the Scooter from Nazir Ahmed. The detenue was carrying a pistol in his hand and he had threatened him at pistol point. The offences registered are under Sections 429/452/147/148, RPC read with 3/25, Indian Arms Act. For the commission of offence under Section 452, RPC, the maximum punishment extends to seven years and fine and only this offence falls within the ambit of Clause (iv) of Sub-clause 2(b) of Section 8 of the Act, which defines the term 'acting in any manner prejudicial to the public order'. This incident cannot be said to have the potentiality of disturbing the even tempo of community so as to amount to acts prejudicial to the maintenance of public order. Viewing the case at the touch stone of Smt. Victoria Fernandes's case (1992 Cri LJ 702) (SC) (supra), it can be said that this solitary incident is not sufficient to deprive the detenu of his personal liberty. He can be tried under substantive law along with his associates.
9. The allegation in the petition that the case of the petitioner was not referred to the Advisory Board has been belied from the official record. After the receipt of the opinion from the Advisory Board, the Govt. on August 28, 1997 had confirmed the detention of the detenue in terms of Section 17(1) of the Act.
10. From the above made discussion, it is amply proved that the detention of the detenu cannot be sustained. There is no necessity to make any further discussion of other pleas raised by the detenu in this petition.
11. In the result, the petition is accepted and the impugned order is quashed. Accordingly, respondents are directed to set the detenu at liberty at once.