Ajay Dixit Vs. State of U.P. and ors. - Court Judgment

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constitution - detention - section 3 of national security act, 1980 - petition against order of detention - grounds mentioned are not amount to apprehend disturbance of public order - no evidence to prove that by any conduct of detenue public order was endangered - stale incidents cannot also be valid ground for sustaining detention - detention of detenue under section 3 (2) not justified - order of detention liable to be quashed - petition allowed. - [ a.k. sarkar,; j.c. shah,; k.c. das gupta,; k. subba rao,; k.n. wanchoo, jj.] the appellants were detained under r. 30(l) of the defence of india rules made by the central government under s. 3 of the defence of india ordinance, 1962. they applied to the punjab and bombay high courts under s. 491(1)(b) of the code of criminal procedure and their case was that ss. 3(2)(15)(i) and 40 of the defence of india act, 1962, and r. 30(1)(b) of the defence of india rules, which were continued under the act, were unconstitutional and invalid inasmuch as they contravened their fundamental rights under arts. 14, 21, 22(4), (5) and (7) of the constitution and that, therefore, they should be set at liberty. the high courts held that the presidential order which had been issued on november 3, 1962, under art. 359(1) of the constitution, after a declaration of emergency under art. 352, consequent on the chinese invasion of india, barred their right to move the said petitions and dismissed them. these appeals raised two common questions in this court, (1) what was the true scope and effect of the presidential order issued under art. 359(1), and (2) did the bar created by the order operate in respect of the applications under s. 491(1)(b) of the code. the presidential order was as follows:- "g.s.r. 1464--in exercise of the powers conferred by cl. (1) of article 359 of the constitution, the president hereby declares that the right of any person to move any court for the enforcement of the right conferred by article 21 and article 22 of the constitution shall remain suspended for the period during which the proclamation of emergency issued under clause (1) of article 352 thereof on the 26th october 1962 is in force, if such person has been deprived of any such rights under the defence of india ordinance, 1962 (4 of 1962) or any rule or order made thereunder." by a later amendment of the order art. 14 was incorporated into it. held:(per gajendragadkar, sarkar, wanchoo, hidayatullah, das gupta and shah, jj.) that the proceedings taken by the appellants in the high courts under s. 491(1)(b) of the code were hit by the presidential order and must be held to be incompetent. article 359 of the constitution was not capable of two interpretations and it was, therefore not necessary to decide the controversy raised by the parties as to whether that article should be interpreted in favour of the president's power granted by it or the fundamental rights of the citizens. the king (at the prosecution of arthur zadig) v. halliday, [1917] a.c. 260, liversidge v. sir john anderson, [1942] a.c. 206, keshav talpade v. the king emperor, [1943] f.c.r. 49, nakkuda ali v. m. f. de s. jayaratne, [1951] a.c. 66 and king emperor v. vimalabal deshpande, l.r. 73 1. a. 144, considered. the words 'any court' in art. 359(1), construed in their plain grammatical meaning, must mean any court of competent jurisdiction including' the supreme court and the high courts before which the rights specified in the presidential order can be enforced. it was not correct to say that the use of the words was necessary so as to include such other courts as might be empowered in terms of art. 32(3). nor was it correct to say that the words could not include a high court as its power to issue a writ under art. 226(1) was discretionary. in judging whether a particular proceeding fell within the purview of the presidential order the determining factor was not its form nor the words in which the relief was couched but the substance of it. if in granting the relief the court had to consider whether any of the fundamental rights mentioned in the presidential order, had been contravened, the proceeding was within the order, whether it was under art. 32(l) or 226(1) of the constitution. the right to move the court for writ of habeas corpus under s. 491(1)(b) of the code of criminal procedure was now a statutory right and could no longer be claimed under the common law. girindra nath banerjee v. birendra nath pal i.l.r. 54 cal. 727, district magistrate, trivandrum v. k. c. mammen map- pillai, i.l.r. [1939] mad. 708, matthen v. district magistrate, trivandrum l.r. 66 i.a. 222 and king emperor v. sibnath banerji, l.r. 72 i.a. 241, referred to. since the promulgation of the constitution the two methods by which a citizen could enforce his right of personal freedom were (i) by a writ under art. 226(1) or art. 32(l), or (ii) under s. 491(1)(b) of the code of criminal procedure. whichever method he adopted if the right he sought to enforce was a fundamental right guaranteed by the constitution the matter must, come within art. 359(1) of the constitution. that the court could exercise its power under s. 491(1)(b) suo motu could make no difference and arts. 372, 225 or 375 could provide no valid ground of attack. the suspension of the right to move any court, as under the presidential order, must necessarily suspend the court's jurisdiction accordingly. the right to challenge a detention order under s. 491(1)(b) of the code had been enlarged by the fundamental rights guaranteed by the constitution and when a detenu relied upon such rights in his petition under that section he was in substance seeking to enforce his fundamental rights. the prohibition contained in art. 359(1) and the presidential order must, therefore, apply. the expression "right to move any court" in art. 359(1) and the presidential order takes in all legal actions, filed or to be filed, in which the specified rights are sought to be enforced and covers all relevant categories of jurisdictions of competent courts under which the said actions would other-wise have been normally entertained and tried. sree mohan chowdhury v. chief commissioner union territory of tripura, [1964] 3 s.c.r. 442, referred to. even though the impugned act may be invalid by reason of contravention of arts. 14, 21 and 22, as contended by the appellants, that invalidity could not be challenged during the period prescribed by the presidential order and it could not be said that the president could not because of such invalidity issue the order. where, however, the challenge to the validity of the detention order was based on any right other than those mentioned in the presidential order, the detenu's right to move any court could not be suspended by the presidential order because the right was outside art. 359(1). where again the detention was challenged on the ground that it contravened the mandatory provisions of the relevant act or that it was malafide and was proved to be so and in all cases falling under the other categories of s. 491(1) of the code excepting those under s. 491(1)(b), the bar of the presidential order could have no application. so also the plea that the operative provision of the law under which the order of detention was made suffered from the vice of excessive delegation, was an independent plea not relatable to the fundamental rights mentioned in the presidential order and its validity had to be examined. the plea that s. 3(2)(15)(i) and s. 40 of the impugned act suffered from excessive delegation must fail. the legislative policy was broad stated in the preamble and the relevant provisions of ss. 3(1) and 3(2) gave detailed and specific guidance to the rule making authority and it was not correct to say that the act had by the impugned sections delegated essentially legislative function to that authority. rule 30(1)(b) which was consistent with the operative provisions of the act could not also be challenged on that ground. in " the delhi laws act, 1912 etc. [1951] s.c.r. 747, harishankar bagla v. the state of madhya pradesh, [1955] 1 s.c.r. 380, bhatanagars and co. ltd., v. the union of india, [1957] s.c.r. 701, relied on. the impugned act could not also he struck down as a piece of colourable legislation because the preventive detention act, 1950, was already on the statute book. the parliament had power under entry 9, list i of the seventh schedule to the constitution and if in view of the grave threat to the security of india it passed the act, it could not be said to have acted malafide. if the parliament thought that the executive would not be able to detain citizens reasonably suspected of prejudicial activities by a recourse to the preventive detention act, 1950, which provided for the required constitutional safeguards and the impugned act which it enacted did not, it could not be suggested that it was acting malafide. even if the impugned act contravened arts. 14 and 22 and the detentions thereunder were- invalid, art. 359(1) and the presidential order, which were precisely meant to meet such a situation, barred investigation on the merits during the period prescribed by the order. the proceeding under s. 491(1)(b) of the code is one pro- ceeding and the sole relief that can be claimed under it is release from the detention. if that could not be claimed because of the presidential order it was unreasonable to say that a mere declaration that the impugned act and the detention thereunder were invalid could be made. such a - declaration is clearly outside the purview of s. 491(1)(b) of the code as also of arts. 226(1) and 32(l) of the constitution. the period for which the emergency should continue and the restrictions that should be imposed during its continuance are matters that must inevitably be left to the executive. in a democratic state the effective safeguard against any abuse of power in peace as also in emergency is the existence of enlightened, vigilant and vocal public opinion. liversidge v. sir john anderson, [19421 a.c. 206, referred to. the inviolability of individual freedom and the majesty of law that sustains it are equally governed by the constitution which has made this court the custodian of the fundamental rights on the one hand and, on the other, provided for the declaration of the emergency. consequently, in dealing with the right of a citizen to challenge the validity of his detention, effect must be given to art. 359(1) and the presidential order issued under it. the right specified in that article must be held to include such right whether constitutional or constitutionally guaranteed and the words "any court" must include the supreme court and the high court. the punjab and the bombay high courts were, therefore right in their decision that the applications under s. 491(1)(b) of the code were incompetent in so far as they sought to challenge the validity of the detentions on the ground that the act and the rules under which the orders were made contravened arts. 14, 21 and 22(4)(5) and (7) of the constitution. per subba rao, j. it was clear that s. 3(2)(15)(i) of the defence of india act, 1962, and r. 30(1)(b) made under the act contravened the relevant provisions of art. 22 of the constitution and were, therefore, void. deep chand v. the state of uttar pradesh, [1959] supp. 2 s.c.r. 840, mahendra lal v. state of u.p., a.i.r. 1963 s.c. 1019, a. k. gopalan v. state of madras, [1950] s.c.r. 88, referred to. under the constitution, every person has a right to move the supreme court, the high courts or any other court or courts constituted by the parliament under art. 32(3) for the enforcement of fundamental rights in the manner prescribed. but while the right to move the supreme court is a guaranteed right, the right to move the others is not so. article 359, properly construed, meant that the bar imposed by the presidential order applied not only to the guaranteed right to move the supreme court but also the rights to move the other courts under art. 32 and art. 226 of the constitution. there is no new rule of construction peculiar to war measures. it is always the same, whether in peace or in war. the fundamental rule is that the courts have to find out the expressed intention of the legislature from the words of the enactment itself. words must be given their natural and ordinary meaning unless there is ambiguity in the language in which case the court has to adopt that meaning which furthers the intention of the legislature. a constitutional provision such as art. 359, however, cannot be given a strained construction to meet a passing phase such as the present emergency. rex v. halliday, l.r. [19171 a.c. 260, liversidge v. sir john anderson, l.r. [1942] a.c. 206, nakkuda a1i v. jayaratna, l.r. 1951] a.c. 66, gibbon v. ogden, (1824) 6 l. ed. 23, discussed. section 491 of the code of criminal procedure is wide in its terms and gives a discretionary power to the high courts. unlike arts. 32 and 226, the exercise of the power is not channelled through procedural writs or orders and their technicalities cannot circumscribe the court's discretion. girindra nath banerjee v. birendra nath pal, (1927) i.l.r. 54 cal. 727, district magistrate, trivandrum v. mammen mappillai, i.l.r. 1939 mad. 708, matten v. district magistrate, trivandrum, l.r. (1939) 66 i.a. 222, referred to. section 491 is continued by art. 372 and -art. 225 preserves the jurisdiction of the high court. the power it confers on the high court is not inconsistent either with art. 32 or art. 226 or any other article of the constitution and the section cannot, therefore, be said to have been impliedly superseded even to the extent art. 226 empowers the high court to give relief in cases of illegal detention. though remedial in form the section postulates the existence of the substantive right that no person can be deprived of his liberty except in the manner prescribed by law. it assumes the existence of the rule of law and empowers high court to act suo motu. the rights, substantive and procedural conferred by it arc different from those under arts. 32 or 226 of the constitution. it places the onus on the custodian to prove that the detention is legal and although in scrutinising the legality of the detention the court may have to consider whether the law offends any fundamental rights, that cannot make the proceeding one for the enforcement of fundamental rights or the decision anything but one on the unconstitutionality of a law because of infringement of fundamental rights generally. the mode of approach to the high court under s. 491 of the code or the nature of the relief given thereunder cannot be equated with those under the constitution. the absolute discretionary jurisdiction under it cannot be put on a par with the jurisdiction under art. 226 which is hedged in by constitutional limitations. alam khan v. the crown, (1947) i.l.r. 28 lahore 274, ramji lal v. the crown, i.l.r..(1949) 11 e.p. 28, king-emperor v. vimlabai deshpande, (1946) l.r. 73 i.a. 144, referred to. while s. 491 gives no right to enforce fundamental rights, operating as it does as a check on arbitrary action, art. 359 is concerned not with statutory powers but deals with the constitutional right and the constitutional enforcement of it. it was not, therefore, correct to say that art. 359 would be frustrated if s. 491 was allowed to stand for parliament might amend that section any time it liked. the expression "right to move any court for enforcement of such of the rights conferred by part 111" in art. 359 must refer only to the right to move under art. 32 or art. 226 for the said specific relief and could not be applied to the exercise of the statutory power of the high courts under s. 491 of the code and, consequently, the expression "all proceedings pending in any court for the enforcement of the rights" must refer to the proceedings initiated in exercise of that right. the detenus could not, therefore, enforce their fundamental rights under arts. 21, 32 and 14 while the presidential order lasted, but that did not affect the high court's power under s. 491 of the code. the president's order cannot bar the detenus from proving even under arts. 32(l) and 226 that the detentions were not made under the defence of india ordinance or the act as they were outside the ordinance or the act or in excess of the power conferred by them or that the detentions were made malafide or in fraudulent exercise of power.     - 2. on the above grounds the district magistrate by his order dated 29.2.1984 stated that he was satisfied that the said ajay dixit was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order. sub-section (2) of section 3 of the act empowers the central government and the state governments, if satisfied with respect to any person, with a view to preventing him 'inter alia from acting in any manner prejudicial to the maintenance of public order',it is necessary to do so to make an order directing such person be detained. there are various procedural safeguards like making known to the detenu within a particular time the grounds of detention and giving him information that he can make representation against the detention within a particular time and further that the representation should be placed before the advisory board and the opinion of the advisory board should be placed before the government concerned and thereafter decision taken. it is sanctioned and authorised for very limited purpose under article 22(3)(b) with good deal of safeguards. the purpose of all government is to promote common well-being and it must subserve the common good and it is necessary therefore to protect individual rights as far as consistent with security of the society and an atmosphere where the even tempo of the community is least endangered. the learned judge observed that the order no doubt mentioned another ground of the detention namely prevention of acts and so far as it did so, it was clearly within the rule. where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the national security (second amendment) act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly :(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reasons whatsoever, and it is not, therefore, possible to hold that the government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that with reference to the remaining ground or grounds. therefore in this order of detention it would be applicable as the order was passed before the coming into force of the national security (second amendment) act, 1984. 9. justice hidayatullah, as the learned chief justice then was, and justice bachawat observed in the said decision that the satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus. if the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order.sabyasachl mukharji, j.1. shri ram narain dixit in this petition under article 32 of the constitution challenges the detention of ajay dixit, his son in the district jail of agra, under the national security act, 1980. the district magistrate, agra passed a detention order and served on ajay dixit hereinafter called the detenu under section 3 of the national security act, hereinafter called the act, on six different grounds. the grounds mentioned therein are as follows :1. that on 10.4.1981 at 10.30 p.m. you alongwith your companions surrounded shri kanhaiya lal sharma resident of ferozepur and fired at him with the intention of killing him but he escaped slightly. in this connection a case under section 307 of i.p.c. was lodged with the police station and is pending the trial in the court against you.2. that on dated 27.9.82 at 3.10 p.m. you collected goondas in your house in the town of ferozabad and when the police party reached in order to arrest the goondas you fired at the police party on which a case against you under section 307/34 of indian penal code is pending the trial in the court.3. that on dated 27.9.82 you were arrested by the police in the town of ferozabad and a country made tamancha and two live cartridges without licence were recovered from your possession in respect of which a case against you under section 25/27 of arms act is pending the trial in the court.4. that on 15.1.83 at 5.00 p.m. you alongwith your brother shot dead shri naresh paliwal brother of shri sanjee kumar paliwal resident of ferozabad. in this respect a case against you under section 302 of indian penal code was registered in the police station and is pending trial in the court.5. that on 31.10.83 shri sanjee kumar paliwal lodged a report with the thana ferozabad (north) that he was carrying the profession of photography. 12-13 days before a boy took him away for the purpose of a photograph to a room where you and your associates were present and you forcibly compelled mrs. sanjeev kumar paliwal at the point of revolver to take nude snap of immoral act being committed by umesh with sanjeev kumar gupta. in this respect a case against you under section 342/286 of indian penal code was registered and the same is under trial.6. that on 26.2.84 at about 5.00 p.m. you alongwith your associates in the town of ferozabad attempted to murder by sprinkling kerosene oil and by lighting it with a match box shri jai kumar jain resident of ferozabad in order to recover your so-called money in respect of which a case against you under section 307 of indian penal code was registered and is under trial.2. on the above grounds the district magistrate by his order dated 29.2.1984 stated that he was satisfied that the said ajay dixit was likely to act in a manner prejudicial to maintenance of public order and that it was necessary to detain him with the object of preventing him from acting prejudicially to the maintenance of public order. the said order was passed under sub-section (2) of section 3 of the national security act, 1980, and the petitioner was detained from 29th february, 1984. on march 14th, 1984 the petitioner submitted his representation to the advisory board. on 23rd march, 1984, the state government rejected the representation of the detenu.3. the petitioner alleged that the procedures and formalities provided under the act had not been made available and applied in the case of the detenu. the petitioner states that the detenu was detained and the grounds mentioned in the order were illusory, insufficient and not bonafide and in any case irrelevant for the detention of the detenu for the maintenance of public order. sub-section (2) of section 3 of the act empowers the central government and the state governments, if satisfied with respect to any person, with a view to preventing him 'inter alia from acting in any manner prejudicial to the maintenance of public order', it is necessary to do so to make an order directing such person be detained.4. there are decisions which have dealt with limits and the scope of this rather drastic power of preventive detention vested in the government and which is sanctioned under the provisions of article 22(3), (4) and (5) of the constitution. there are various procedural safeguards like making known to the detenu within a particular time the grounds of detention and giving him information that he can make representation against the detention within a particular time and further that the representation should be placed before the advisory board and the opinion of the advisory board should be placed before the government concerned and thereafter decision taken. the petitioner made some other averments of non-compliance with the procedural safeguards under the act. the main ground in the petition is that the petitioner was not informed of the rights available to him nor of the reasons or order passed on his representation. in view of the averments made in the petition and the affidavits filed on behalf of the respondent, it is not necessary in the facts and circumstances of this case to discuss these in detail.5. preventive detention is an exception to the normal procedure. it is sanctioned and authorised for very limited purpose under article 22(3)(b) with good deal of safeguards. the exercise of that power of preventive detention must be with circumspection and care. we are governed by the constitution and our constitution embodies a philosophy of government and a way of life. the working of this constitution requires understanding between those who exercise power and the people over whom or in respect of whom such power is exercised. the purpose of all government is to promote common well-being and it must subserve the common good and it is necessary therefore to protect individual rights as far as consistent with security of the society and an atmosphere where the even tempo of the community is least endangered. these provisions should be so read as to imply grant of power and also limit the user of the power. the observance of a written law about the procedural safeguards for the protection of the individual is the normal and high duty of a public official. but in all circumstances is not the highest. the law of self-preservation and national security often claimed a higher priority. 'to lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us, thus absurdly sacrificing the end to the means', thomas jefferson writings (washington ed. v. page 542-545. sometimes the executive may have to act without normal safeguards for ordinary detention and resort to preventive detention when the necessity demands it, but it must explain its action when called upon in judicial review and ask for acquittance.6. the question of difference between 'law and order' and 'public order' has come up many a times in judicial decisions. in the case of dr. ram manohar lohia v. state of bihar and ors. : 1966 crilj608 a constitution bench of this court had to consider this controversy in the context of rule 30(i)(b) of the defence of india rules, 1962. mr. justice sarkar who was a party to the majority view observed that it was not necessary to take too technical a view but one should proceed in a matter of substance, if a man could be deprived of his liberty by the simple process of making of an order he could only be so deprived of it if the order is in terms of rule. if for the purpose of justifying the detention such compliance by itself is enough, non-compliance must have a contrary effect. a mere reference in the detention order to the rule is not sufficient to show that by 'law and order' was what was meant was public order. the learned judge observed that the order no doubt mentioned another ground of the detention namely prevention of acts and so far as it did so, it was clearly within the rule. but the order has notwithstanding this, to be held illegal, though it mentioned a ground on which a legal order of detention could have been passed, because it could not be said that in what manner and to what extent the valid and invalid grounds operated on the mind of the detaining authority. of course, as the present law stands if one of the orders is invalid the order of detention can not be set aside merely on that ground.7. the national security (second amendment) act, 1984 was assented to by the president on 31st august, 1984 and it provided that it should be deemed that the act had come into force on the 21st of june, 1984. section 5a of the act by virtue of section 2 of the national security (second amendment) act, reads as follows :5a. where a person has been detained in pursuance of an order of detention whether made before or after the commencement of the national security (second amendment) act, 1984 under section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly :-(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are-(i) vague,(ii) non-existent,(iii) not relevant,(iv) not connected or not proximately connected with such person, or(v) invalid for any other reasons whatsoever,and it is not, therefore, possible to hold that the government or officer making such order would have been satisfied as provided in section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the government or officer making the order of detention shall be deemed to have made the order of detention under the said section after being satisfied as provided in that with reference to the remaining ground or grounds.8. the act specifically makes the provision of section 5a of the amended portion of the act applicable in case of an order of detention whether passed before the commencement of the national security (second amendment) act, 1984 or after it. therefore in this order of detention it would be applicable as the order was passed before the coming into force of the national security (second amendment) act, 1984.9. justice hidayatullah, as the learned chief justice then was, and justice bachawat observed in the said decision that the satisfaction of the detaining authority cannot be subjected to objective tests and courts are not to exercise appellate powers over such authorities and an order proper on its face, passed by a competent authority in good faith, would be a complete answer to a petition for a writ of habeas corpus. but when from the order itself circumstances appear which raise a doubt whether the officer concerned had not misconceived his own powers, there is need to pause and enquire. the enquiry then is, not with a view to investigate the sufficiency of the materials but into the officer's notions of his power. if the order passed by him showed that he thought his powers were more extensive than they actually were, the order might fail to be a good order. when the liberty of the citizen is put within the reach of authority and the scrutiny by courts is barred, the action must comply not only with the substantive requirements of law but it should be with those forms which alone can indicate the substance. the learned judges further observed that the contravention 'of law' always affects 'order' but before it could be said to affect 'public order', it must affect the community or the public at large. one has to imagine three concentric circles, the largest representing 'law and order', the next representing 'public order' and the smallest representing 'security of state'. an act may affect 'law and order' but not 'public order', just as an act may affect 'public order' but not 'security of the state'. therefore one must be careful in using these expressions.10. in the decision of this court in the case of arun ghosh v. state of west bengal : 1970 crilj1136 the question was whether the grounds mentioned could be construed to be breach of public order and as such the detention order could be validly made. there the appellant had molested two respectable young ladies threatened their father's life and assaulted two other individuals. he was detained under section 3(2) of the preventive detention act, 1950 in order to prevent him from acting prejudicially to the maintenance of public order. it was held by this court that the question whether a man has only committed a breach of law and order, or has acted in a manner likely to cause a disturbance of the public order, is a question of degree and the extent of the reach of the act upon society. the test is : does it lead to a disturbance of the even tempo and current of life of the community so as to amount to a disturbance of the public order, or, does it affect merely an individual without affecting the tranquility of society. this court found in that case however reprehensible the appellant's conduct might be, it did not add up to the situation where it may be said that the community at large was being disturbed. therefore, it could not be said to amount to an apprehension of breach of public order, and hence, he was entitled to be released.11. the law on this point was stated by this court in the case of ram ranjan chatterjee v. state of west bengal : 1975 crilj588 as follows :it may be remembered that qualitatively, the acts which affect 'law and order' are not different from the acts which affect 'public order'. indeed, a state of peace or orderly tranquility which prevails as a result of the observance or enforcement of internal laws and regulations by the government, is a feature common to the concepts of 'law and order' and 'public order'. every kind of disorder or contravention of law affects that orderly tranquility. the distinction between the areas of 'law and order' and 'public order' as pointed by this court in arun ghosh v. state of west bengal, 'is one of degree and extent of the reach of the act in question on society'. it is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. if the contravention in its effect is confined only to a few individuals directly involved as distinguished from a wide spectrum of the public, it would raise a problem of law and order only. these concentric concepts, of maw and order' and 'public order' may have a common 'epicenter', but it is the length, magnitude and intensity of the terror-wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'.12. reliance was also placed upon jay mala v. home secretary, govt. of j and k. : 1982 crilj1777 . in that case also a criminal case had been started on the basis of an incident. the court felt that the grounds of detention were such grounds upon which no valid order of detention can be sustained. it has been further observed at page 540 as follows :but it is equally important to bear in mind that every minor infraction of law cannot be upgraded to the height of an activity 1 prejudicial to the maintenance of public order.... if every infraction of law having a penal sanction by itself is a ground for detention danger looms large that the normal criminal trials, and criminal courts set up for administering justice will be substituted by detention laws often described as lawless law.13. see also in this connection the observations of this court in alijan mian v. district magistrate, dhanbad and ors. : 1983 crilj1649 14. stale incidents cannot also be a valid ground for sustaining detention. see in this connection the observations of this court in kamlakar prasad chaturvedi v. state of m.p. and anr. : 1983 crilj1928 . when a challenge is made to a detention on the grounds that the stale and irrelevant grounds were the basis for detention then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny.15. bearing the aforesaid principles in mind, the first ground mentioned in the order of detention was that the detenu along-with the companions surrounded one kanhaiya lal sharma and had committed an offence under section 307 of indian penal code on or about 10th april, 1981. apart from the fact that the ground was old and stale, it is irrelevant inasmuch as the detenu has been acquitted of the charge before the detention order was passed. he was acquitted on 2nd february, 1984 whereas the detention order was passed on 29th february, 1984. the respondents in their counter do not dispute this position but state that the information had not reached the detaining or the recommending authority. this is unfortunate. the other grounds mentioned in the detention order no doubt are also unfortunate and the conduct alleged of the detenu is reprehensible. such conducts if true are not of such nature which could possibly endanger 'public order'. the incident alleged is to have happened ten or twelve days prior to 31st october, 1983, yet the detention order was passed quite some time thereafter in february, 1984. the certain criminal charges mentioned in grounds numbers 2, 3, 4 and 5, there is no difficulty in arresting the detenu. the grounds mentioned therein are not of such magnitude as to amount to apprehend disturbance of public order, nor was there any evidence that for any conduct of the detenu public order was endangered, or there could be reasonable apprehension about it. as emphasised by the decisions of this court, it is important to bear in mind the difference between law and order situation and maintenance of public order. the act by itself is not determinate of its gravity. in its quality it may not differ from another but its potentiality may be very different. therefore the question whether a man has only committed a breach of law and order or acted in a manner likely to the disturbance of public order is a question of degree of the reach of the act upon society. in this connection it maybe appropriate to refer to the observations in the case of arm ghosh v state of west bengal (supra) at page 290 as follows :it means therefore that the question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order is a question of degree and the extent of the reach of the act upon the society. the french distinguish law and order and public order by designating the latter as order publiue. the latter expression has been recognised as meaning something more than ordinary maintenance of law and order. justice ramaswami in writ petition no. 179 of 1968 drew a line of demarcation between the serious and aggravated forms of breaches of public order which affect the community or endanger the public interest at large from minor breaches of peace which do not affect the public at large. he drew an analogy between public and private crime. the analogy is useful but not to be pushed too far. a large number of acts directed against persons or individuals may total up into a breach of public order. in dr. ram manohar lohia's case examples were given by sarkar, and hidayatullah, jj. they show how similar acts in different contexts affect differently law and order on the one hand and public order on the other. it is always a question of degree of the harm and its effect upon the community. the question to ask is : does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed this question has to be faced in every case on facts. there is no formula by which one case can be distinguished from another.16. it is, therefore, necessary in each case to examine the facts to determine, not the sufficiency of the grounds nor the truth of the grounds, but nature of the grounds alleged and see whether these are relevant or not for considering whether the detention of the detenu is necessary for maintenance of public order.17. in view of the nature of the allegations mentioned in the grounds, we are of the opinion that these are not of such a nature as to lead to any apprehension that the even tempo of the community would be endangered. therefore the detention of the detenu under the provisions of section 3(2) of the act was not justified.18. there are various allegations of mala fide in this application namely that one of the relations of advocate-general of u.p. was involved. it is alleged that the advocate-general of u.p. is the father-in-law of a local resident with whom the family of the detenu had land dispute due to which many attempts on the life of the detenu and his brother had been caused to be made by the advocate-general. in the view we have taken it is not necessary for us to go into these questions. there are some submissions about the procedural irregularities. though on the whole we do not find much substance but it is not necessary also to detain ourselves on the examination of these questions.19. in the aforesaid view of the matter, the detention order dated 29th february, 1984 which is annexure i to the petition is hereby quashed. the detenu should be set at liberty forthwith.