Veerendra Singh Vs. State of Madhya Pradesh and anr. - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - , 1995 jlj 545, wherein, it has been observed, as under :we fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenu. we also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in the first information report. and if for some good reason the district magistrate is not available, the affidavit must be sworn by some responsible officer like the secretary or the dy. in view of the above procedure, the objection and contention of the petitioner on this count also does not appear to be well founded and cannot be accepted.orderv.k. agarwal, j.1. this petition under articles 226 and 227 of the constitution of india has been filed seeking issuance of a writ of habeas corpus regarding detenu surendra singh, who is the brother of the petitioner and who has been detained under the national security act (hereinafter referred to as the act') by district magistrate, surguja by his order dated 31-3-1995 (annexure r/2) and praying that the said order of detention be quashed.2. facts leading to the present petition in brief are that on receiving report (annexure r/1) from s. p., surguja, the impugned order (annexure r/2) dated 31-3-1995 was passed by the respondent no. 2. district magistrate, surguja under section 3(2) of the act ordering detention of surendra singh on the grounds enumerated in annexure r/2'. the said grounds briefly are as below :-(i) on the report of sukhlal, crime no. 123 of 1990 for offences punishable under sections 294/506 read with section 34 of the indian penal code was registered and charge sheet filed;(ii) on the report of tirathnath, crime no. 178/90 for offences punishable under sections 147,148/149/452/186/323/294/506-b, indian penal code was registered and charge sheet filed :(iii) on the report of sanjay manna, crime no. 348/90 for offences punishable under sections 147/148/149/307, indian penal code was registered and challan filed on 9-11-1990;(iv) on the report of r. n. dixit, crime no. 335/91 for offences punishable under sections 341/294/323/506-b read with section 34 of the indian penal code was registered and charge sheet filed;(v) on the report of kamlesh, crime no. 313/91 for offences punishable under sections 294/506-b/323/324, indian penal code was registered and charge sheet filed in the court;(vi) on the report of sapan kumar, crime no. 323/91 of p. s. chirimiri for offences punishable under sections 147/148/149/294/506-b/323, indian penal code was registered and charge sheet filed;(vii) complaint no. 15/91 under preventive sections 107/116(3) of the criminal procedure code prepared and filed;(viii) on the report of sanjay mehta, crime no. 200/92 for offence punishable under section 302, indian penal-code was registered and challan filed;(ix) on the complaint of shiva prasad mishra crime no. 10/93 for offences punishable under sections 147/148/149/323/324, indian penal code was registered and challan filed;(x) on the report of ram milan, crime no. 195/94 for offences punishable under sections 147/149/427/506-b, indian penal code was registered and challan filed;(xi) on the report of satya pujan mishra, crime no. 351/94 for offences punishable under sections 294/323/506-b, indian penal code was registered and challan filed;(xii) on complaint no. 18/94, preventive action taken and complaint under sections 107/116(3) of the criminal procedure code was drawn up;(xiii) on 8-12-1994, the detenu along with his companions assaulted the driver of the bus belonging to mpsrtc and, therefore, preventive action taken;(xiv) on 18-3-1995 on the report of complainant savitri bai, preventive action taken against the detenu;(xv) on the report of nathuram, crime no. 119 of 1995 was registered against the detenu for offences punishable under sections 341/294/506-b, indian penal code, which is pending investigation;(xvi) on 30-3-1995, the detenu chased the driver nathuram of a school bus and threatened him to kill, due to which the market was closed and the students stopped going to the schools;it was alleged in the grounds of detention that the detenu was a person of criminal tendency and offences of murder, assault, criminal intimidation, rioting were habitually committed by him and witnesses, on account of fear, did not give evidence, against him. therefore, his actions were prejudicial to maintenance of public order.3. it would appear from the return of the respondents that vide communication dated 31-3-1995 (annexure r/1) of the s. p., surguja addressed to the district magistrate, details of the prejudicial activities of the detenu were furnished along with relevant documents in support of the same. after carefully examining the report and the documents annexed therewith, the district magistrate, surguja passed detention order dated 31-3-1995 (annexure r/2) under section 3(2) and (3) of the act, which was served on the detenu on 7-4-1995. by annexure r/3, grounds of detention were furnished on 7-4-1995 to the detenu. the telegraphic communication of the detention of the detenu was sent by annexure r/4' dated 7-4-1995 to the state government and detailed information was also sent to the state government by letter dated 10-4-1995 (annexure r/5). the state government vide order dated 12-4-1995 (annexure r/6) accorded approval to the detention order of the district magistrate and vide annexure r/7 dated 18-4-1995, the state government informed the central government about the detention order passed by the district magistrate, surguja. the detenu was produced before the advisory board on 2-5-1995 and the advisory board by its order dated 2-5-1995 (annexure r/8) approved the detention, as it found it to be justified. by order dated 16-5-1995 (annexure r/9), the state government under section 12(1) of the n.s.a. confirmed the detention order (annexure r/2) and directed that the period of detention of the detenu shall last upto 6-4-1996. the confirmation order of detention was duly served on the detenu on 19-5-1995 (annexure r/10), the acknowledgment of which is annexure r/11'. the details of detention were submitted by the state government to the central government vide annexure r/13' dated 26-7-1995.4. it has also been stated in the return that vide annexure r/3', the detenu was informed that he had a right to make a representation to the state government and to make submissions before the advisory board regarding his detention. the detenu, however, did not submit any representation to the state government. the respondent state has, therefore, submitted that there was no infringement of the procedure prescribed under the national security act, 1980 and that the order of detention was passed by the district magistrate, after his subjective satisfaction regarding the detention. it was submitted that the detention order does not suffer from any legal infirmity and the petition being devoid of substance and merit, deserves to be dismissed.5. the learned counsel for the petitioner has mainly urged :(i) that there was no material before the detaining authority for arriving at its subjective satisfaction and especially no material was placed before it regarding grounds (i) to (xii) and only entries of the crime register have been produced in relation thereto, which are not sufficient for forming an opinion by the detaining authority;(ii) that the grounds of detention are vague, stale and do not disclose that the actions of the detenu were in any manner prejudicial to the maintenance of public order and could constitute threat to law and order;(iii) that the affidavit of the detaining authority filed along with the return does not disclose that the detaining authority applied its mind on the material furnished to it before passing the order of detention; and(iv) that the record of the proceedings of the advisory board was not sent back to the state government.6. as against this, it was submitted on behalf of the state government that the report of the s. p., surguja along with the-annexure constituted sufficient material for subjective satisfaction of the detaining authority and for basing its conclusion, on the basis of which order of detention was passed. it was also contended that the record sent to the advisory board is sent in triplicate and the original file remains with the state government and the advisory board has only to send the order to the state government. the affidavit of the detaining authority was duly sworn, which discloses that it has applied its mind to the material placed before it, before passing the detention order. the past activities of the detenu can always be taken into consideration and the cumulative effect of the activities in which the detenu has been indulging in the past can be taken into consideration. it was found by the detaining authority that the detenu had been consistently involved in commission of offences and the continuity thereof indicates that the detenu was acting in a manner prejudicial to the public order.7. so far as the objection regarding non-supply of sufficient material to the detaining authorities, it may be mentioned that perusal of the record discloses that so far as grounds (i) to (xii) mentioned in annexure r/3' are concerned, it is found that only copies of crime register alone have been enclosed. however, f.i.r.s or any other material documents have not been sent to the detaining authority along with the report of the superintendent of police submitted to the detaining authority. according to the learned counsel for the petitioner, the copies of crime register are not sufficient and the detaining authority could not form an opinion regarding detention on the basis thereof. he has, in this connection, relied upon the case in smt. rahimanbi v. district magistrate, jabalpur and ors., 1995 jlj 545, wherein, it has been observed, as under :-'we fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenu. we also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in the first information report....' (para 12);8. in the instant case also, there is no other material to support grounds nos. (i) to (xii) except the entries from the crime register. the said entries, in our opinion, would not constitute sufficient material for forming opinion regarding detention and could not even, prima facie, substantiate the allegations contained in grounds nos. (i) to (xii) of annexure r/3'.9. moreover, it has been urged that the grounds nos. (i) to (xii) do not contain the particulars of the alleged incidents and the involvement of the detenu therein. therefore, it cannot be said that material placed before the detaining authority regarding grounds nos. (i) to (xii) was sufficient and no opinion regarding detention on the basis thereof could be formed.10. on perusal of grounds nos. (i) to (xii) and the documents in support thereof, it appears to us that the grounds are not duly supported by relevant documents, as the documents furnished to the detaining authority were only entries from the crime register, which would not, in our opinion, suffice to substantiate and even disclose, prima facie, that the allegations against the detenu were true. though this court would not go into the truthfulness or falsehood of the allegations made, there should be sufficient material to indicate that there was material for consideration and for application of mind by the detaining authority to come to the conclusion and that on being relied upon, activities prejudicial to public order could be attributed to the detenu. no such documents, in our opinion, in this case, having been placed before the detaining authority, so far as grounds nos. (i) to (xii) are concerned, the same could not form the basis for forming an opinion and to pass an order of detention.11. moreover, it has also been urged on behalf of the petitioner that grounds nos. (vii) and (xii) relate to only preventive proceedings under sections 107/116 of the criminal procedure code. similarly, grounds nos. (xiii) and (xiv) also relate to prohibitory proceedings. therefore, grounds nos. (vii), (xii), (xiii) and (xiv) would not constitute any action on the part of the detenu, on the basis of which an order for detention under the act' could be passed. we find substance in the above contention.12. the learned counsel for the petitioner has assailed grounds nos. (xv) and (xvi) also and has urged that they relate to alleged incidents dated 30-3-1995 at korea, which is about 150 kms. from surguja the ho. of the detaining authority, who could not normally have time to consider the same on the next day i.e., 31-3-1995 while passing the impugned order. secondly, it has also been contended in this connection that the said grounds do not constitute any act, which could be considered as prejudicial to 'public order' and could only be matters of 'law and order'. he has also urged that the other grounds also do not constitute any activity on the part of the detenu, which may be termed as prejudicial to public order.13. now coming to ground no. (xv), it appears to be based on the report of one nathuram regarding which offences punishable under sections 294 and 506-b, indian penal code were registered. on perusal of the 'rojnamcha sanha', relating to the said ground, it appears that the same was regarding use of abusive language and threat to savitri devi. the above act of the detenu can in no way be considered as affecting public order. similarly, so far as ground no. (xvi) is concerned, the relevant 'rojnamcha sanha' discloses that a report was lodged that the detenu surendra singh and bhola pandey stopped the school bus and abused the driver of the bus and chased him. it may also be noticed that though in the ground, it has been mentioned that there was general terror on account of the said act, but the relevant 'rojnamcha' report relating to the said ground does not disclose that public terror was caused on account of the said incident and, therefore, the same could not be said to be affecting 'public order'.14. it would appear from above incidents, contained in grounds (xv) and (xvi) as also from other incidents constituting other grounds that the alleged activities of the detenu related to 'law and order' and were not such as to be termed as prejudicial to 'public order'.15. the distinction between 'law and order' and 'public order' has been elucidated in ram manohar lohia v. state of bihar, air 1966 sc 740, as under :-'one has to imagine three concentric circles. the law and order represents the largest circle within which the next circle representing public order and the smallest circle represents security of state. it is then easy to say that an act may affect law and order, but not public order just as an act may affect public order, but not the security of the state.'in state of u.p. v. kamal kishore saini, air 1988 sc 208, it has been observed as below :-'considering all these decisions, we have held in the case of gulab mehta v. state of u. p., (1987) 4 j.t. 559 = air 1987 sc 2332... that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act, which will affect public order.'16. in the instant case, considering the nature of activities and the incidents enumerated in the grounds in annexure r/3' and the documents placed in support thereof, it does not appear that the action of the detenu constituted any threat to public order, as the alleged acts of the detenu do not appear to have the effect and potentiality to disturb or dislocate the even tempo of life of the community. therefore, they could not be considered as actions prejudicial to the maintenance of public order.17. the learned counsel for the petitioner has also contended that the return has not been supported by the affidavit of the detaining authority, i.e., the district magistrate, surguja. he has contended that the detaining authority, by swearing an affidavit, should have shown his subjective satisfaction on the grounds for detention. reliance in this connection was placed by him on the following observations of the apex court in mohinuddin v. district magistrate, beed, air 1987 sc 1977 .-'in return to a rule nisi issued by the supreme court or the high court in a habeas corpus petition, the proper person to file the affidavit is the district magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefor; and if for some good reason the district magistrate is not available, the affidavit must be sworn by some responsible officer like the secretary or the dy. secretary to the government in the home department, who personally dealt with or processed the case in the secretariat or submitted it to the minister or other officer duly authorised under the rules of business framed by the governor under article 166 of the constitution to pass orders on behalf of the government in such matters.'18. he has also relied upon mukesh kumar jain v. union of india and ors., 1991 cr.l.j. 323, wherein it has been held that in case the detaining authority has not filed an affidavit denying the allegations made in the petition, the order impugned deserves to be quashed.19. in the instant case, it appears that initially the return was accompanied by an affidavit dated 16-11-1995 of shri b. s. rayast, jt. collector and city magistrate, surguja. however, subsequently, the detaining authority, i.e., district magistrate, surguja has sworn affidavit on 21st november, 1995 in support of the contentions of the return. the learned additional advocate general for the respondents has urged in this regard that the detaining authority could not swear his affidavit earlier, because he was not available, but subsequently, without delay he has sworn his own affidavit in support of the return of the respondents.20. in view of the fact that the detaining authority has submitted his affidavit though subsequently to the filing of return as pointed out above, it appears sufficient and the objection raised on behalf of the petitioner in this regard, therefore, cannot be accepted.21. as regards the objection raised on behalf of the petitioner that the record of the advisory board was not sent back to the state government, the learned additional advocate general has explained that copies of the record in triplicate are sent to the advisory board and the original record remains with the state government, hence there is no non-compliance of provisions of the act', in this regard, as objected to by the petitioner. in view of the above procedure, the objection and contention of the petitioner on this count also does not appear to be well founded and cannot be accepted.22. therefore, in view of the above discussion, it appears that the grounds and the material furnished along with them to the detaining authority were not sufficient for subjective satisfaction of the detaining authority that the activities of the detenu were in any manner prejudicial to the maintenance of public order.23. for the foregoing reasons, the order of detention (annexure r/2) dated 31-3-1995 deserves to be quashed and is hereby quashed. the detenu is directed to be set at liberty forthwith, if not required to be detained in any other case.

Judgment:
ORDER

V.K. Agarwal, J.

1. This petition under Articles 226 and 227 of the Constitution of India has been filed seeking issuance of a writ of Habeas Corpus regarding detenu Surendra Singh, who is the brother of the petitioner and who has been detained under the National Security Act (hereinafter referred to as the Act') by District Magistrate, Surguja by his order dated 31-3-1995 (Annexure R/2) and praying that the said order of detention be quashed.

2. Facts leading to the present petition in brief are that on receiving report (Annexure R/1) from S. P., Surguja, the impugned order (Annexure R/2) dated 31-3-1995 was passed by the Respondent No. 2. District Magistrate, Surguja under Section 3(2) of the Act ordering detention of Surendra Singh on the grounds enumerated in Annexure R/2'. The said grounds briefly are as below :-

(i) On the report of Sukhlal, Crime No. 123 of 1990 for offences punishable under Sections 294/506 read with Section 34 of the Indian Penal Code was registered and charge sheet filed;

(ii) On the report of Tirathnath, Crime No. 178/90 for offences punishable under Sections 147,148/149/452/186/323/294/506-B, Indian Penal Code was registered and charge sheet filed :

(iii) On the report of Sanjay Manna, Crime No. 348/90 for offences punishable under Sections 147/148/149/307, Indian Penal Code was registered and challan filed on 9-11-1990;

(iv) On the report of R. N. Dixit, Crime No. 335/91 for offences punishable under Sections 341/294/323/506-B read with Section 34 of the Indian Penal Code was registered and charge sheet filed;

(v) On the report of Kamlesh, Crime No. 313/91 for offences punishable under Sections 294/506-B/323/324, Indian Penal Code was registered and charge sheet filed in the Court;

(vi) On the report of Sapan Kumar, Crime No. 323/91 of P. S. Chirimiri for offences punishable under Sections 147/148/149/294/506-B/323, Indian Penal Code was registered and charge sheet filed;

(vii) Complaint No. 15/91 under preventive Sections 107/116(3) of the Criminal Procedure Code prepared and filed;

(viii) On the report of Sanjay Mehta, Crime No. 200/92 for offence punishable under Section 302, Indian Penal-Code was registered and challan filed;

(ix) On the complaint of Shiva Prasad Mishra Crime No. 10/93 for offences punishable under Sections 147/148/149/323/324, Indian Penal Code was registered and challan filed;

(x) On the report of Ram Milan, Crime No. 195/94 for offences punishable under Sections 147/149/427/506-B, Indian Penal Code was registered and challan filed;

(xi) On the report of Satya Pujan Mishra, Crime No. 351/94 for offences punishable under Sections 294/323/506-B, Indian Penal Code was registered and challan filed;

(xii) On complaint No. 18/94, preventive action taken and complaint under Sections 107/116(3) of the Criminal Procedure Code was drawn up;

(xiii) On 8-12-1994, the detenu along with his companions assaulted the driver of the bus belonging to MPSRTC and, therefore, preventive action taken;

(xiv) On 18-3-1995 on the report of complainant Savitri Bai, preventive action taken against the detenu;

(xv) On the report of Nathuram, Crime No. 119 of 1995 was registered against the detenu for offences punishable under Sections 341/294/506-B, Indian Penal Code, which is pending investigation;

(xvi) On 30-3-1995, the detenu chased the Driver Nathuram of a School Bus and threatened him to kill, due to which the market was closed and the students stopped going to the schools;

It was alleged in the grounds of detention that the detenu was a person of criminal tendency and offences of murder, assault, criminal intimidation, rioting were habitually committed by him and witnesses, on account of fear, did not give evidence, against him. Therefore, his actions were prejudicial to maintenance of public order.

3. It would appear from the return of the respondents that vide communication dated 31-3-1995 (Annexure R/1) of the S. P., Surguja addressed to the District Magistrate, details of the prejudicial activities of the detenu were furnished along with relevant documents in support of the same. After carefully examining the report and the documents annexed therewith, the District Magistrate, Surguja passed detention order dated 31-3-1995 (Annexure R/2) under Section 3(2) and (3) of the Act, which was served on the detenu on 7-4-1995. By Annexure R/3, grounds of detention were furnished on 7-4-1995 to the detenu. The telegraphic communication of the detention of the detenu was sent by Annexure R/4' dated 7-4-1995 to the State Government and detailed information was also sent to the State Government by letter dated 10-4-1995 (Annexure R/5). The State Government vide order dated 12-4-1995 (Annexure R/6) accorded approval to the detention order of the District Magistrate and vide Annexure R/7 dated 18-4-1995, the State Government informed the Central Government about the detention order passed by the District Magistrate, Surguja. The detenu was produced before the Advisory Board on 2-5-1995 and the Advisory Board by its order dated 2-5-1995 (Annexure R/8) approved the detention, as it found it to be justified. By order dated 16-5-1995 (Annexure R/9), the State Government under Section 12(1) of the N.S.A. confirmed the detention order (Annexure R/2) and directed that the period of detention of the detenu shall last upto 6-4-1996. The confirmation order of detention was duly served on the detenu on 19-5-1995 (Annexure R/10), the acknowledgment of which is Annexure R/11'. The details of detention were submitted by the State Government to the Central Government vide Annexure R/13' dated 26-7-1995.

4. It has also been stated in the return that vide Annexure R/3', the detenu was informed that he had a right to make a representation to the State Government and to make submissions before the Advisory Board regarding his detention. The detenu, however, did not submit any representation to the State Government. The respondent State has, therefore, submitted that there was no infringement of the procedure prescribed under the National Security Act, 1980 and that the order of detention was passed by the District Magistrate, after his subjective satisfaction regarding the detention. It was submitted that the detention order does not suffer from any legal infirmity and the petition being devoid of substance and merit, deserves to be dismissed.

5. The learned counsel for the petitioner has mainly urged :

(i) that there was no material before the detaining authority for arriving at its subjective satisfaction and especially no material was placed before it regarding grounds (i) to (xii) and only entries of the crime register have been produced in relation thereto, which are not sufficient for forming an opinion by the detaining authority;

(ii) that the grounds of detention are vague, stale and do not disclose that the actions of the detenu were in any manner prejudicial to the maintenance of public order and could constitute threat to law and order;

(iii) that the affidavit of the detaining authority filed along with the return does not disclose that the detaining authority applied its mind on the material furnished to it before passing the order of detention; and

(iv) that the record of the proceedings of the Advisory Board was not sent back to the State Government.

6. As against this, it was submitted on behalf of the State Government that the report of the S. P., Surguja along with the-annexure constituted sufficient material for subjective satisfaction of the detaining authority and for basing its conclusion, on the basis of which order of detention was passed. It was also contended that the record sent to the Advisory Board is sent in triplicate and the original file remains with the State Government and the Advisory Board has only to send the order to the State Government. The affidavit of the detaining authority was duly sworn, which discloses that it has applied its mind to the material placed before it, before passing the detention order. The past activities of the detenu can always be taken into consideration and the cumulative effect of the activities in which the detenu has been indulging in the past can be taken into consideration. It was found by the detaining authority that the detenu had been consistently involved in commission of offences and the continuity thereof indicates that the detenu was acting in a manner prejudicial to the public order.

7. So far as the objection regarding non-supply of sufficient material to the detaining authorities, it may be mentioned that perusal of the record discloses that so far as grounds (i) to (xii) mentioned in Annexure R/3' are concerned, it is found that only copies of crime register alone have been enclosed. However, F.I.R.s or any other material documents have not been sent to the detaining authority along with the report of the Superintendent of Police submitted to the detaining authority. According to the learned counsel for the petitioner, the copies of crime register are not sufficient and the detaining authority could not form an opinion regarding detention on the basis thereof. He has, in this connection, relied upon the case in Smt. Rahimanbi v. District Magistrate, Jabalpur and ors., 1995 JLJ 545, wherein, it has been observed, as under :-

'We fail to understand as to how the extracts from the crime register would even prima facie prove the allegations made against the detenu. We also fail to understand as to how the cryptic and cavalier entries in the crime register would be a substitute for the material allegations which contained in the first information report....' (para 12);

8. In the instant case also, there is no other material to support grounds Nos. (i) to (xii) except the entries from the crime register. The said entries, in our opinion, would not constitute sufficient material for forming opinion regarding detention and could not even, prima facie, substantiate the allegations contained in Grounds Nos. (i) to (xii) of Annexure R/3'.

9. Moreover, it has been urged that the grounds Nos. (i) to (xii) do not contain the particulars of the alleged incidents and the involvement of the detenu therein. Therefore, it cannot be said that material placed before the detaining authority regarding grounds Nos. (i) to (xii) was sufficient and no opinion regarding detention on the basis thereof could be formed.

10. On perusal of grounds Nos. (i) to (xii) and the documents in support thereof, it appears to us that the grounds are not duly supported by relevant documents, as the documents furnished to the detaining authority were only entries from the Crime Register, which would not, in our opinion, suffice to substantiate and even disclose, prima facie, that the allegations against the detenu were true. Though this Court would not go into the truthfulness or falsehood of the allegations made, there should be sufficient material to indicate that there was material for consideration and for application of mind by the detaining authority to come to the conclusion and that on being relied upon, activities prejudicial to public order could be attributed to the detenu. No such documents, in our opinion, in this case, having been placed before the detaining authority, so far as grounds Nos. (i) to (xii) are concerned, the same could not form the basis for forming an opinion and to pass an order of detention.

11. Moreover, it has also been urged on behalf of the petitioner that grounds Nos. (vii) and (xii) relate to only preventive proceedings under Sections 107/116 of the Criminal Procedure Code. Similarly, grounds Nos. (xiii) and (xiv) also relate to prohibitory proceedings. Therefore, grounds Nos. (vii), (xii), (xiii) and (xiv) would not constitute any action on the part of the detenu, on the basis of which an order for detention under the Act' could be passed. We find substance in the above contention.

12. The learned counsel for the petitioner has assailed grounds Nos. (xv) and (xvi) also and has urged that they relate to alleged incidents dated 30-3-1995 at Korea, which is about 150 kms. from Surguja the HO. of the detaining authority, who could not normally have time to consider the same on the next day i.e., 31-3-1995 while passing the impugned order. Secondly, it has also been contended in this connection that the said grounds do not constitute any act, which could be considered as prejudicial to 'public order' and could only be matters of 'law and order'. He has also urged that the other grounds also do not constitute any activity on the part of the detenu, which may be termed as prejudicial to public order.

13. Now coming to ground No. (xv), it appears to be based on the report of one Nathuram regarding which offences punishable under Sections 294 and 506-B, Indian Penal Code were registered. On perusal of the 'Rojnamcha Sanha', relating to the said ground, it appears that the same was regarding use of abusive language and threat to Savitri Devi. The above act of the detenu can in no way be considered as affecting public order. Similarly, so far as ground No. (xvi) is concerned, the relevant 'Rojnamcha Sanha' discloses that a report was lodged that the detenu Surendra Singh and Bhola Pandey stopped the school bus and abused the driver of the bus and chased him. It may also be noticed that though in the ground, it has been mentioned that there was general terror on account of the said act, but the relevant 'Rojnamcha' report relating to the said ground does not disclose that public terror was caused on account of the said incident and, therefore, the same could not be said to be affecting 'public order'.

14. It would appear from above incidents, contained in grounds (xv) and (xvi) as also from other incidents constituting other grounds that the alleged activities of the detenu related to 'law and order' and were not such as to be termed as prejudicial to 'public order'.

15. The distinction between 'law and order' and 'public order' has been elucidated in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, as under :-

'One has to imagine three concentric circles. The law and order represents the largest circle within which the next circle representing public order and the smallest circle represents security of State. It is then easy to say that an act may affect law and order, but not public order just as an act may affect public order, but not the security of the State.'

In State of U.P. v. Kamal Kishore Saini, AIR 1988 SC 208, it has been observed as below :-

'Considering all these decisions, we have held in the case of Gulab Mehta v. State of U. P., (1987) 4 J.T. 559 = AIR 1987 SC 2332... that whether an act relates to law and order or to public order depends upon the effect of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act, which will affect public order.'

16. In the instant case, considering the nature of activities and the incidents enumerated in the grounds in Annexure R/3' and the documents placed in support thereof, it does not appear that the action of the detenu constituted any threat to public order, as the alleged acts of the detenu do not appear to have the effect and potentiality to disturb or dislocate the even tempo of life of the community. Therefore, they could not be considered as actions prejudicial to the maintenance of public order.

17. The learned counsel for the petitioner has also contended that the return has not been supported by the affidavit of the detaining authority, i.e., the District Magistrate, Surguja. He has contended that the detaining authority, by swearing an affidavit, should have shown his subjective satisfaction on the grounds for detention. Reliance in this connection was placed by him on the following observations of the Apex Court in Mohinuddin v. District Magistrate, Beed, AIR 1987 SC 1977 .-

'In return to a rule nisi issued by the Supreme Court or the High Court in a habeas corpus petition, the proper person to file the affidavit is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefor; and if for some good reason the District Magistrate is not available, the affidavit must be sworn by some responsible officer like the Secretary or the Dy. Secretary to the Government in the Home Department, who personally dealt with or processed the case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under Article 166 of the Constitution to pass orders on behalf of the Government in such matters.'

18. He has also relied upon Mukesh Kumar Jain v. Union of India and Ors., 1991 Cr.L.J. 323, wherein it has been held that in case the detaining authority has not filed an affidavit denying the allegations made in the petition, the order impugned deserves to be quashed.

19. In the instant case, it appears that initially the return was accompanied by an affidavit dated 16-11-1995 of Shri B. S. Rayast, Jt. Collector and City Magistrate, Surguja. However, subsequently, the detaining authority, i.e., District Magistrate, Surguja has sworn affidavit on 21st November, 1995 in support of the contentions of the return. The learned Additional Advocate General for the respondents has urged in this regard that the detaining authority could not swear his affidavit earlier, because he was not available, but subsequently, without delay he has sworn his own affidavit in support of the return of the respondents.

20. In view of the fact that the detaining authority has submitted his affidavit though subsequently to the filing of return as pointed out above, it appears sufficient and the objection raised on behalf of the petitioner in this regard, therefore, cannot be accepted.

21. As regards the objection raised on behalf of the petitioner that the record of the Advisory Board was not sent back to the State Government, the learned Additional Advocate General has explained that copies of the record in triplicate are sent to the Advisory Board and the original record remains with the State Government, hence there is no non-compliance of provisions of the Act', in this regard, as objected to by the petitioner. In view of the above procedure, the objection and contention of the petitioner on this count also does not appear to be well founded and cannot be accepted.

22. Therefore, in view of the above discussion, it appears that the grounds and the material furnished along with them to the detaining authority were not sufficient for subjective satisfaction of the detaining authority that the activities of the detenu were in any manner prejudicial to the maintenance of public order.

23. For the foregoing reasons, the order of detention (Annexure R/2) dated 31-3-1995 deserves to be quashed and is hereby quashed. The detenu is directed to be set at liberty forthwith, if not required to be detained in any other case.