B.J. Divan, C.J.
1. The petitioner herein is the brother of one Bhaskar Gunvantrai Bhatt who has been detained under the provisions of Section 3, Sub-section (2), of the National Security Act, 1980 (hereinafter referred to as N. S. A). The order of detention has been passed by the first respondent, Commissioner of Police, Ahmedabad City, and is dated Feb. 20, 1981. The order states that the Commissioner of Police who has been authorised under the provisions of Section 3 Sub-section (3) of N.S.A. was satisfied with respect to the detenu that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad City, it was necessary to make the order directing that the said detenu Bhaskar Gunvantrai Bhatt be detained and hence this order of detention was being passed. The grounds of detention which were duly furnished to the detenu in due time required by law are dated Feb. 21, 1981. It is alleged in the grounds of detention that the detenu Bhaskar Gunvantrai Bhatt and his companion Gaurang C. Shah had, on February 6 1981, at about 7-15 to 7-30 P. M. approximately collected a group of about one thousand persons near Nava Wadai Bus Stand and incited the crowd on the following lines:
Government is doing injustice to 'Savarnas' by creating reservation seats for Harijans. That cannot be tolerated at all now. Harijans have started a counter-agitation to break up the agitation carried on by students. Harijans are assaulting 'Savarnas' and : attacking temples. Even the police is giving support to Harijans and hence this is not the time to sit quietly. Beat up Harijans and loot them. Throw stones on police. Then only the agitation will become successful.
It is further alleged in the grounds of detention that because of this incitement by detenu Bhaskar Gunvantrai Bhatt and his companion Gaurang C Shah, the people who had gathered there had become excited and had pelted stones and indulged in stone-throwing at the State Bank of India, Nava Wadai Branch and they had broken into the bank, had broken furniture, etc., and had caused damage of about approximately ten thousand rupees. At this time in this area there was a general atmosphere of fear and terror and because of that atmosphere, pedestrians had started rushing about and in this manner, for a short time in this area the normal life of the people had been disrupted. In connection with this incident an offence of rioting has been registered at serial No. 66 of 1981 in Naranpura Police Station Crime Register.
2. The grounds of detention further proceed to state that because of these facts the detaining authority was satisfied that in order to prevent the detenu from committing acts which would be interfering with the maintenance of public order, it was necessary to detain Bha, skar Gunvantrai Bhatt, the detenu concerned, and hence he had passed the requisite order of detention. Under Section 3(1) of N.S.A. as required by law the detenu was being informed of the grounds of detention and that under Section 8(1) the detenu had a right to make a representation to the State Government against the order of detention. The detenu was informed that if he wanted to make a representation against the order of detention, then, he should forward his representation addressed to the State Government through the Jail Superintendent, Sabarmati Central Jail. The grounds of detention further set out that in order to enable the detenu to make an effective representation against the order of detention. copies of the record as shown in the schedule to the grounds of detention were being furnished to the detenu. The ultimate paragraph of the grounds of detention states that the names and addresses of the persons who have given statements to the police were being withheld though copies of their statements were being furnished to the detenu and the names and addresses of those persons were being withheld because the detaining authority was of the opinion that it would be against public interest to disclose those names and addresses and hence those names and addresses were not being furnished to the detenu.
3. These are the entire contents of the grounds of detention.
4. Thus, it is obvious that what is relied upon in the grounds of detention are the following facts:
(1) that the detenu, Bhaskar Bhatt, and his companion Gaurang C. Shah, had collected a crowd of about one thousand people at Nava Wadaj Bus Stand at about 7-15 or 7-30 P. M. on Feb. 6, 1981.
(2) both the detenu and Gaurang C. Shah had addressed that crowd of one thousand people and he incited the members of the crowd to attack Harijans and to loot them and to attack the police by pelting them with stones and that this was the only way so as to make the agitation of the students against reservation of seats successful.
(3) It is further alleged that because of the incitement given by Bhaskar Bhatt, the detenu before us, and his companion Gaurang C, Shah, the crowd of one thousand persons had got excited and broke open the State Bank of India Branch at Nava Wadai, and furniture etc. had been demolished and damage to the extent of ten thousand rupees had been caused to the Bank.
(4) Because of this attack on the Branch of the State Bank an atmosphere of terror and fright was created in this locality, and because of that atmosphere of fright and terror, pedestrians had begun to run about and for some time, in this particular locality, the normal life of the people had become disrupted.
5. In order to understand the background which has been very much relied upon by the detaining authority, it is necessary to set out a few facts. These facts are gathered from what has been stated in the petition and in the affi-davit-in-reply. The detenu is not a medical student. He is in the L. D. Engineering College, Ahmedabad and he has been elected General Secretary of the students' body of the L. D. Engineering College for academic year 1980-81 and he is working in that capacity in the students' movement. The question of reservation of seats for Scheduled Castes and Scheduled Tribes at post- graduate level in the Feculty of Medicine had created dissatisfaction amongst the students. Since for about six to eight months the medical students were making representations before various State authorities, including the Chief Minister, Health Minister and Education Minister, pointing out to them that because of the reservations at post-graduate level in Medical Faculty, brightest students who had obtained gold medals were not able to get admission as against those belonging to the Scheduled Castes and Scheduled Tribes obtaining pass marks. The medical students also pointed out that the reservation at the post-graduate level in the Faculty of Medicine was not uniform throughout the country but it was introduced only in six or seven States and that such reservation was against the recommendation of the All India Medical Council which was a statutory body in charge of prescribing and maintaining the standards of medical education. It is the petitioner's case that these representations were being made in a lawful and peaceful manner before various State authorities but those State authorities turned a deaf ear to the demands of the medical students. The medical students organised themselves and started a peaceful movement for the abolition of reservation of seats at post-graduate level in Medical Faculty It is against this background of the demand of the medical students that the agitation started. The affidavit-in-reply of the first respondent points out in paragraph 4 that the action of the State Government in asking the medical students to vacate the hostels within twenty-four hours was not high-handed as alleged by the petitioner. It is denied by the first re-speondent that the State Government came out with uncalled for alleged police atrocities like use of firing or killing innocent citizens in various places in the State of Gujarat It is denied that there were any instances of police atrocities like beating innocent lawyers, bank employees, mill workers, Government servants, as has been alleged in the petition. According to the first respondent, the police authorities have dealt with the agitation in a restrained and lawful manner for the purpose of restoring public order which was disturbed due to anti-reservation of seats agitation and counter agitation. According to the first respondent on account of the agitation started by the students, there were disturbances in the City of Ahmedabad which have created a conflict between Harijans and rion-Harijans It is further stated in the affidavit-in-reply that as a result of the disturbances it became necessary to call in aid the Army as well as the Central Paramilitary forces and Reserve Forces of other States for the purpose of maintenance of public order and it was also necessary to clamp curfew in many parts of the City of Ahmedabad and to issue the notification under Section 144 of the Criminal Procedure Code in the city of Ahmedabad. It is against this background of agitation started by the medical students and the subsequent counter-agitation started bv those who were insisting on reservation of seats being continued that the riots broke out in the city of Ahmedabad. It is with reference to this background of riots breaking out and disturbances of public order in different parts of the city that the allegations have been made against the detenu in this case and it is on the basis of the three statements made against the detenu, the names and addresses of the three persons who had made these statements being withheld under Section 8(2) of the N. S.' A., that the whole question before us has to be judged. One peculiar part is that all the three statements are on identical lines. Secondly, in each of the statements, at the end there is a paragraph that it was because of an assurance given to the particular individual making the statement that the fact of his having given the statement to the police would be kept completely confidential and that he would not be called upon to give deposition before any authority and because of such assurance or guarantee the person was making the statement before the particular police officer and the statement sets out that he had a well-founded apprehension and fear that if the fact of his having given the statement to the police was disclosed to the public or came out, then his life and property would be in jeopardy.
6. As regards what is meant by 'public order' by now a series of cases has clarified the distinction between 'law and order', 'public order', and 'security of the State'. Soon after the coming into force of the Constitution, as far back as 1950, in Romesh Thappar v. State of Madras : 1950CriLJ1514 the Supreme Court examined the whole legal position and Patanjali Sastri, J., as he then was, speaking for the majority Judges of the Supreme Court Bench pointed out in paragraph 10 at p. 128 (of AIR) : (at P. 1517 of Cri LJ) of the report:
As Stephen in his Criminal Law of England. Vol. II, p. 212, observes:
Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it.Though all these offences thus involve disturbances of public transquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them may be classified into different minor categories as has been done by the Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in Article 19(1) has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole jus-tification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly (Sub-clause (b)) and the right of association (Sub-clause (c)) may be restricted under Clauses (3) and (4) of Article 19 in the interests of 'public order', which in those clauses includes the security of the State. The differentiation is also noticeable in Entry No. 3 of List III (Concurrent List) of Schedule 7, which refers to the 'Security of State' and 'Maintenance of public Order' as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off more or less roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind.
In Ram Manohar Lohia v. The State of Bihar : 1966CriLJ608 Hidayatullah J., as he then was, pointed out while making out a distinction between 'law and order', 'public order' and 'security of State' (Para 52 of Cri LJ):
One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State.
It may be pointed out that as recently as 1980, the Supreme Court in G. M. Shah v. State of J. and K : : 1SCR1104 , has reiterated the same principles as in the extracted passage that we have set out hereinabove from the decision in Romesh Thappar's case 1950)51 Cri LJ 1514 (supra) and has also referred to the distinction of the three concentric circles as mentioned by Hidayatullah J. in Dr. Ram Manohar Lohia's case 1966 Cri LJ 608 (supra). Thus, every breach of the peace will create a problem of law and order but unless the public tranquillity is disturbed or it likely to be disturbed, there may not be a problem of public order. Security of State is the smallest circle but every disturbance of public order or likelihood of disturbance of public order may not affect security of State but both are bound to be within the larger category of public disorder. What was emphasized by the Supreme Court in Dr. Ram Manohar Lohia's case (supra) was that every breach of public peace, every violation of law which creates a law and order situation does not necessarily create a problem of public order. The distinction has got to be borne in mind in view of what has been stated in the grounds of detention in the instant case and the affidavit-in-re-ply while claiming privilege under Section 8(2) of the N.S.A.
7. In Ashadevi v. K. Shivraj AIR 1979 SC 447 : 1979 Cri LJ 203 Tulza-purkar J. speaking for the Supreme Court has pointed out in paragraph 6 at p. 449 (of AIR) : (at p. 205 of the (Cri LJ) :
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
8. In the grounds of detention it has been stated that the crowd of one thousand persons had been collected together by the detenu and his companion Gaurang C. Shah, the Gujarati words in the grounds being (Gujarati words omitted - Ed) In each of the three statements on which reliance has been placed by the detaining authority for the purpose of passing the orders of detention the relevant words are that a crowd of one thousand persons had collected near Nava Wadaj Bus Stand. There is nothing in any of the three statements to indicate that the crowd had been collected or called together by Bhaskar Bhatt, the detenu before us, and his companion Gaurang C. Shah. The three statements are dated 10th Feb. 1981, 12th February 1981 and 15th Feb. 1981. In the statement dated 10th Feb. 1981 it has been stated that when the person making the statement came near the Nava Wadaj Bus Stand at about 7-15 P. M., he saw a crowd of about one thousand persons gathered together and Bhaskar Bhatt and Gaurang Shah were inciting those people. In the same manner, in the statement of Feb. 12, 1981 it has been stated that when the person who made that statement was passing by the Nava Wadai Bus Stand on Feb. 6, 1981 at about 7-30 P. M. he had seen that about one thousand persons had gathered together and Bhaskar Bhatt and Gausang Shah were inciting the members of that crowd. In the third statement of Feb. 15, 1981 it has been stated that when the person making that statement was passing by Nava Wadaj Bus Stand at about 7-30 P. M. on Feb. 6, 1981, he had seen about one thousand to fifteen hundred persons gathered near the Bus Stand. In none of these three statements, therefore is there any averment or any allegation that the crowd of one thousand persons or so had been collected or called by Gaurang Shah or Bhaskar Bhatt or both of them together. Thus, when the grounds of detention proceed on the footing that the crowd had been called together by the detenu and his companion Gaurang C. Shah (Gujarati words omitted-Ed.) it assumes a different footing altogether. Addressing a crowd of persons who happen to have collected for some other purpose or on their own is one thing. Addressing a crowd of persons who have been specially called together or collected together indicates a greater deliberation and greater planning than mere addressing a crowd of persons whom one finds collected together. The grounds of detention attribute that greater degree of deliberation and preparation by stating that the two persons. Bhaskar Gunvantrai Bhatt and Gaurang C. Shah had collected the crowd of persons together. Thus there is a clear non-application of mind by the authority to the facts of the case before him, namely, that a greater deliberation or greater planning is attributed to the two persons who are alleged to have incited the persons in the crowd to acts of violencp and thereby incited them to attack the Branch of State Bank of India. This is a clear case of non-application of mind on the part of the detaining authority on the face of the materials which have been placed before us in this case. It is well settled legal position that when there is non-application of mind of the detaining authority to the facts of the case and the order of detention is passed as a result of non-application of mind, the order is vitiated in part, at least to the extent to which that non-application of mind was allowed to influence the decision-making by the detaining authority.
9. In Smt. Icchu Devi Choraria v. Union of India : 1SCR640 , Bhagwati; J. speaking for the Supreme Court pointed out at pp. 1987 88.
Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
(Emphasis supplied by us).
It is therefore clear that in every case where the detaining authority supports the order of detention, it is for him to support the order by showing that all procedures laid down by law have been properly followed and the requirements of law have been properly satisfied in each particular case of detention. This burden has been spelt out by Courts from the provisions of Article 21 of the Constitution which confers the fundamental right on the citizen about liberty of person.
10. In the instant case, as we have pointed out above, the main allegation against the detenu is on the ground that because of one fact which is referred to in the grounds of detention there is a likelihood of his indulging in similar activities in future. It is well settled law that the law relating to detention of this kind as enacted in the N.S.A. is part of suspicion jurisdiction, that is, on the suspicion arising from the past activities or the present activities of a particular detenu and an apprehension or a reasonable conclusion is drawn by the detaining authority that the detenu is likely to indulge in similar activities in future and in order to prevent him from indulging in similar activities in future it is necessary to detain him. If this is a suspicion jurisdiction or what may be called prognosis jurisdiction in the sense that based on the prognosis of the likely future activities of the particular detenu-such prognosis being based on the basis of what he has done in the past the detaining authority comes to the conclusion that in order to prevent him from carrying out those reprehensible or obnoxious activities it is necessary to detain him under the provisions of the particular detention statute., N.S.A. in the present ease. In order to arrive at a prognosis there must be materials before the detaining authority on the basis of which a reasonable person can come to the conclusion that a prognosis about the future activities or likely future activities of a particular person can be drawn, or can be arrived at. In the instant case, it is not alleged that the two persons, Bhaskar Gunvantrai Bhatt and his companion Gaurang C. Shah were directly connected in any manner with the agitation against reservation of seats in the Medical Faculty at postgraduate level. Gaurang C. Shah who is the detenu concerned in Special Criminal Application No. 55 of 1981 which is also before us today, was said to be the Cultural Secretary of the L. D. Engineering College Students Union. Bhaskar Gunvantrai Bhatt is said to be the General Secretary of the L. D. Engineering College Students Union. Both of them are said to be leaders of students in their own college but there is nothing to show on the record before us or in the affidavit-in-reply or anywhere in the grounds of detention that Bhaskar Gunvantrai Bhatt and Gaurang C. Shah were connected with the anti-reservation agitation in Medical Colleges at post-graduate level. It is true that according to the words attributed to them at the time of addressing the crowd of one thousand persons at Nava Wadaj, Bus Stand at about 7-15 P. M. on 6th Feb. 1981, they are alleged to have incited the crowd by stating that in order to make the Gujarat agitation against reservation of seats successful, Harijans should be attacked and police should be attacked but if neither of them is shown to have been connected with that particular agitation against reservation of seats, in Medical Colleges at postgraduate level it is difficult for any reasonable person to come to the conclusion that in future also either Bhaskar Gunvantrai Bhatt or Gaurang C. Shah or both of them would indulge in making similar speeches as they are alleged to have made on Feb. 6, 1981 near Nava Wadaj Bus Stand, or that they would continue to make similar incitements asking people to attack Harijans, attack the police or attack banks. Therefore, in the absence of any material or even the allegation that either of these two persong was connected with the said agitation, just because they happened to be office-bearers in the L. D. Engineering College students union or students body, it cannot be predicated or a prognosis cannot be arrived at that after 6th Feb. 1981 they were likely to create similar situations or likely to incite groups or crowds in the city of Ahmedabad in a similar fashion. The grounds for the prognosis being absent, it was unreasonable on the part of the detaining authority to arrive at that prognosis and to come to the conclusion that the detenu concerned was likely to indulge in similar activities in future and that with a view to preventing him from indulging in similar activities he should be detained under the provisions of the N.S.A.
11. Under Section 3(2) of the N.S.A. the detaining authority can pass an order of detention if he is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do. We are not concerned in this case with an act prejudicial to the security of the State or an act prejudicial in any manner to the maintenance of supplies and services essential to the community. The only ground which is alleged against the detenu is that, according to the detaining authority in order to prevent the detenu from acting in any manner prejudicial to the maintenance of public order by making speeches, that being the only action attributed to him, it was, in the opinion of the detaining authority, necessary to detain him. The prognosis or the suspicion cannot be entertained by any reasonable person that the only activity which is attributed to him, namely, making speeches and inciting people, would be indulged again if he was not shown to be in any way actively connected with the agitation against reservation of seats in medical Colleges at post-graduate level.
12. Mr. Vakharia appearing for the petitioner has placed strong reliance on the decision of the Supreme Court and the observations made in the case of Ram Bahadur Rai v. State of Bihar. : 1975CriLJ269 . There also, as in the present case, it was the question of speech being made by the particular individual concerned. In paragraph 17 at page 227 (of AIR) (at p. 273 of Cri LJ) Chandrachud J., as he then was, speaking for the Supreme Court has pointed out:
If the charge be that the petitioner had preached violence, the grounds of detention must say so. Such a serious accusation ought not to be left to mere speculation. And if there is not a whisper of violence in the grounds of detention or in the affidavit of the District Magistrate, how can the court conclude that the petitioner exhorted the student community to take to the path of violence in the pursuit of its demands? The judgment of the High Court shows that in March 1974 Bihar was in the grip of violence. But we cannot argue back and hold that since the Chatra Neta Sammelan took a certain decision in February and the violence erupted in March therefore one was the cause and the other the consequence. Such an inference may perhaps be permissible in respect of historical events which have been subjected to an expert and dispassionate examination by historians. But green facts of contemporary life are an unsure foundation for raising such an inference
In Ram Bahadur's case (supra) it was alleged that what was preached was 'Gujarat type of agitation,' referring to Navnirman agitation in 1974 in the State of Gujarat. But what is material is that in that particular case of Ram Bahadur, there was no allegation that the words inciting to violence or preaching violence were used. In the instant case the words attributed to the detenu, namely, 'attack Harijans, loot them and attack police' certainly amount to inciting people to violence and to that extent the right of freedom of speech enshrined in Article 19 of the Constitution will not come to the rescue of the detenu because if any person assembles together or addresses a crowd of persons asking them to attack Harijans, attack police and loot Harijans with a view to support the agitation against reservation of seats, then the fundamental right by virtue of the Exception to Article 19(1) would be curtailed and to that extent the right of freedom of speech cannot avail the particular individual concerned But what is material to notice in this case is that merely because on one occasion which is referred to in the grounds of detention the particular detenu made a speech alleged against him of inciting people, can it be said that in future also, without any background of any similar speeches in the past or similar incitements in the past and without any association being pointed out between the detenu's speech-making and the agitation, the likelihood of his indulging in similar speech-making in future and similar incitements in future can be predicated?
13. In Debu Mahto v. State of West Bengal : 1974CriLJ699 before the Supreme Court it was alleged against the detenu concerned that on 11th August 1972 at about 14-05 hours he and his associates were removing three bales of empty gunny bags by breaking open wagon No. WB-386335 near Goala Fatak North Cabin of Naihati Railway Yard and on being challenged by the local railway guard members the detenu and his associates fled away leaving behind the stolen gunny bags. This was the single instance on the basis of which the order of detention was passed against the detenu under the provisions of Maintenance of Internal Security Act, 1971. Bhagwati J., speaking for the Supreme Court, pointed out in paragraph 2 at page 817 (of AIR): (at p. 701 of Cri LJ):
Now in a given situation where wagon breaking as a crime has assumed alarming proportions and it is seriously obstructing and thwarting smooth and quick flow of supplies and services essential to the community, even a single act of wagon breaking by an individual may be regarded in a different light and conceivably afford justification for reaching a satisfaction that such individual may be detained in order to prevent him from acting in a prejudicial manner. But here we do not find anything in the affidavit filed by the District Magistrate in reply to the petition even remotedly suggesting that wagon breaking was a crime which had become very rampant and it was in the context of such a situation that the District Magistrate arrived at the requisite satisfaction even though the act on which the satisfaction was founded was just one single solitary act of wagon breaking. We fail to see how one solitary isolated act of wagon breaking committed by the petitioner could possibly persuade any reasonable person to reach the satisfaction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking. No criminal propensities for wagon breaking could reasonably be inferred from a single solitary act of wagon breaking committed by the petitioner in the circumstances of the present case.
It may be pointed out that in that case the Supreme Court struck down the order of detention on the ground that no materials were placed before the Court for the purpose of showing that wagon-breaking as a crime had assumed alarming proportions and was seriously obstructing and thwarting smooth and quick flow of supplies and services essential to the community. It was also held that barring a late attempt on the part of the detaining authority to show that the petitioner before the Supreme Court was a notorious wagon-breaker who engaged in systematic breaking open of railway wagons and committing theft of rice and wheat, this ground was not communicated to the detenu and he was not given an opportunity of making representation against it and this was clearly in breach of the provisions of Section 8(1) of the MISA and also constituted a violation of the constitutional guarantee embodied in Clause (5) of Article 22 of the Constitution. According to the Supreme Court, the order of detention was vitiated by a serious infirmity and must be held to be invalid.
14. In the case before us, Mr. J.R. Nanavati. learned Public Prosecutor appearing for the detaining authority, has very strongly relied on the words of the earlier part of the passage which we have quoted from the Supreme Court judgment and he contends that according to the affidavit-in-reply, there was a disruption of public order in the sense that violent events were taking place throughout the city of Ahmedabad and curfew had to be imposed and it was in this situation that this particular single act of delivering a speech to the crowd of about one thousand persons near Nava Wadaj Bus Stand had taken place, The difficulty in accepting the contention of Mr. J.R. Nanavati is that this very passage points out in what circumstances those observations are to be applied. There was no requisite averment and, really speaking the Supreme Court was indicating in what possible cases a single act of wagon-breaking by an individual may be regarded in a different light and conceivably as justification for reaching the satisfaction that such individual must be detained in order to prevent him from acting in a manner prejudicial to the public order. Thus the Supreme Court, even by way of ohiter dicta, has not stated that any such single act would be a sufficient ground., but the Supreme Court has very guardedly used the words 'conceivably afford justification.' Under these circumstances, it cannot be predicated from a single act of delivering a speech, assuming that such speech was delivered as assumed by the detaining authority on Feb. 6, 1981, by the detenu and his companion Gaurang c. Shah, it cannot be predicated that he was likely to indulge in similar activity in future. It cannot be predicated that a propensity of that kind was being disclosed or that in the light of the situation as it prevailed at the time, this would lead to a conflagration. Whatever the situation elsewhere in the city might be, just because one speech was delivered it cannot be said that a criminal propensity or tendency could be detected in the actions or activities of the detenu which would require him to be detained so as to prevent him from acting to the detriment of public order. On this ground, therefore, as it was a single act and it could not be predicated that he would act in a similar manner in future after 6th Feb. 1981 the prognosis which was being made by the detaining authority could not be said to be in accordance with law., which might conceivably, afford, according to the decision of the Supreme Court justification for reaching a satisfaction that such individual must be detained in order to prevent him from acting in a prejudicial manner that is, in the circumstances as disclosed in the affidavit-in-reply, any reasonable person could reach a satisfaction that the person who had delivered a speech of this kind near Nava Wadaj Bus Stand on Feb. 6, 1981, was likely to deliver a similar speech in future or had the propensity or the particular disposition to deliver such speeches in future also. Under these circumstances, since this was a single act and reasonable prognosis could not be based on a single act on the part of the detenu, the order of detention is vitiated and deserves to be struck down.
15. We may point out that there is another decision of the Supreme Court in Anil Dey v. State of West Bengal : 1974CriLJ702 where a single incident was relied upon by the Supreme Court and to be fair to the detaining authority, we must cite that decision. In Anil Dey's case (supra) the Supreme Court was concerned with prognosis from a single act on the part of the detenu concerned. It was alleged against the detenu in the grounds of detention that on 1st August 1972 at about 12-30 hours, the detenu and his associates committed theft in respect of signal materials from SPH type location box No. 513 which was situated in between U.P. main and UP OCR line at Dum Dum Junction North Yard (near S. S. P.) and 2 Nos. feed and transformer from the junction box near Singal No. 35 on the said place and that the value of the stolen property was valued at Rs. 600/-. In this particular case, though it was a single act of theft on the part of the detenu concerned, the Supreme Court speaking through Krishna Iyer J. pointed out that it was an electrical installation which required a special degree of technical skill and electrical expertise on the part of the person concerned. Krishna Iyer J. at page 835 (of AIR): at p. 705 of Cri LJ of the report in paragraph 7 pointed out : -
This single act cannot live in isolation and necessarily connotes a course of previous conduct whereby some specialisation has been acquired, some specialised agencies have been fabricated and some special mischief has been planned to be perpetrated. All that ha3 Been done in the affidavit in opposition is to set out more fully what is thus capsuled in the seemingly single act communicated. To abridge is not always to omit.
It was because of the special facts of that particular, case that the single act of. theft was held to be sufficient for passing an order of detention. This is one of the rare cases where an order of detention based on a single act was upheld on the special facts of the case, otherwise it would become too flimsy, as the judgment of the Supreme Court itself has pointed out that the ground given was neither too distant nor too trifling to strain judicial credulity to breaking point; on the contrary it was proximate and pernicious, if true.
16. We are conscious of the fact that it is not open to this Court in exercise of its jurisdiction under Article 226 of the Constitution to examine the sufficiency of the materials or adequacy of the materials or to sit in appeal over the order passed by the detaining authority. All that we are concerned with is whether the requirements of law as explained by the Supreme Court have been satisfied. In the instant case we find that the main requirement about the prognosis which a reasonable person would make is not satisfied from the single act on the part of the detenu.
17. There is one further ground of attack on the order of detention which has been urged before us by Mr. Vakharia, and that ground is that in the purported exercise of power conferred upon him by Section 8(2), the detaining authority, the first respondent in this case, has withheld the names and addresses of the three persons copies of whose statements have been furnished to the detenu, along with the grounds of detention. Under Section 8(2) of the N.S.A. it has been provided :' Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.'
It may be pointed out that Article 22 Clause (5) provides : -
When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Under Clause (6):
Nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
It is therefore obvious, both by Article 22(6) as also the provisions of Section 8(2), that it is open to the detaining authority not to disclose facts which the detaining authority considers against the public interest to disclose while making an order of detention and furnishing grounds for detention. But it may be pointed out that it is because of requirement of public interest that the non-disclosure can be justified. In the instant case, the detaining authority has stated in paragraph 9:
I say that the names of the persons who have given the statements are not disclosed to the detenu as I was satisfied that if the names of the said witnesses are disclosed, it might endanger their lives and properties which would affect the maintenance of public order in the city of Ahmedabad and, therefore, on a careful consideration of the facts of the case I was satisfied that it is against the public interest to disclose the names of the witnesses while furnishing the grounds of detention to the detenu.
We have already pointed out while referring to the statement of the three witnesses, being the statements dated 10th Feb. 1981. 12th Feb. 1981 and 15th Feb. 1981, that each of the three persons mentioned apprehended that his person and property would be in jeopardy and he apprehended danger to his person and property if his name were to be disclosed arid if it were to come out that he had given a statement on these lines to the police authorities. Therefore the apprehension, if the names were disclosed, was to the person and property of the three individuals whose statements have been relied upon by the detaining authority for the purpose of arriving at the satisfaction that the detenu was required to be detained in accordance with law. It is not necessary for us in the instant case to go into the question as to what are the exact connotations of public interest in the context of this particular act. We are prepared to assume for the purposes of this judgment that the cause of public order would be the cause of public interest in the light of the provisions of the N.S.A. It was urged before us by Mr. J.R. Nanavati, learned Public-Prosecutor, that public interest has to be seen in the context of each particular enactment and the Court cannot consider public interest dehors the context in which the concept of public in-lerest is required to be considered. Even if public interest has to be understood as subservins cause of public orrter under the provisions of Section 8(2) of the N.S.A., even then, in the instant case we find that the detaining authority while considering apprehensions to the person and property of the three individuals, has confused law and order situation with public order situation. Ever since the decision in Dr. Ram Manohar Lohia's case 1966 Cri LJ 608 (SC) (supra) and coming down to the latest decision in G.M. Shah v. State of Madras : 1SCR1104 , the distinction between 'public order.' 'law and order' and 'security of State' has to be borne in mind. The distinction between law and order on the one hand and public order on the other is that similar situation may in a set of circumstances develop into a public order but if the apprehension is only to one or two or three individuals, it cannot be said that there is a danger to the maintenance of public order or that public order is likely to be jeopardised. The passage from the judgment of Patanjali Sastri J. in Romesh Thappar's case 1950 51 Cri LJ 1514 (SC) (supra) has been cited above and looking to the decisions on the point which have been summarized in G.M. Shah's case (supra), it is obvious that in the instent case the distinction between law and order and public order which has now become part of the law of the land, has not been kept in mind by the detaining authority when he withheld this information from the detenu. It is possible for the detenu to point out in his representation, if the names and other details of the individual concerned mentioned in the statement or who is alleged to have made the statement are pointed out, for example that the particular individual was not in Ahmedabad on the particular day when the incident took place or it is possible for him to point out that the person who is making the statement is his sworn enemy. Any passible explanation which the detenu could have given regarding the person making the statement has been completely shut out to him and he has been completely deprived of the opportunity to make an adequate representation since the names of the persons making the statements have not been disclosed. Since the distinction between public order and law and order has not been borne in mind the names have been withheld on the ground that public interest required the names to be withheld as public order was to be maintained in the context of N.S.A. and on that tenuous ground the detaining authority has withheld the information from the detenu concerned. The result therefore is that the detenu by reason of non-application of mind on the part of the detaining authority to this vital distinction between law and order and public order, was deprived of the opportunity to make an effective representation against the order of detention passed against him. On this ground also, the order of detention is vitiated in the instant case. The result therefore is that on the three grounds mentioned above where we find that the order is vitiated on each of the three grounds, the order of detention is vitiated and required to be set aside.
18. We therefore allow this special criminal application and quash and set aside the order of detention passed by the detaining authority against Bhaskar Gunvantrao Bhatt the detenu concerned. Rule is made absolute accordingly. There will be no order as to costs. The detenu will be set at liberty forthwith so far as the present case is concerned.
19. Mr. Nanavati for the detaining authority applies for certificate for leave to appeal to the Supreme Court under Article 133(1) of the Constitution on the ground that this case involves a substantial question of law of general importance and that question is needed to be decided by the Supreme Court. In this case, all that we have done is to apply the well settled principles of law, the principles which have been decided by the Supreme Court to the facts of the case. Therefore in our opinion it cannot be said that the case involves any substantial question of law of general importance. The application for certificate for leave to appeal to the Supreme Court is therefore rejected.
20. Mr. Nanavati also applied that the operation of the order passed by us should be stayed pending an appropriate order that may be passed by the Supreme Court on an application being made in that behalf by the detaining authority. In our opinion, since the question of liberty of citizen is involved and since we have found that on three separate grounds the order of detention cannot be sustained, it is not proper for us to grant the stay order. We have pointed out to the learned Government Pleader that they can keep the person concerned under surveillance if they so think fit.