D.D. Thakur, J.
1. The petitioner who has been detained by the District Magistrate, Jammu, by his order No. 12 of 1974 dated 24-7-1974 under Section 3(2) read with Section 5 of the Maintenance of Internal Security Act, 1971, has by this petition under Section 103 of the Constitution of Jammu and Kashmir sought a writ of Habeas Corpus directing his release from detention.
2. Precisely stated the facts which led to the filing of this petition are as follows ;-
The petitioner was arrested on 25-7-1974 at New Plots, Jammu at 10 A. M. pursuant to the order of detention aforesaid passed by the District Magistrate, Jammu, At the time of his arrest the contents, of the detention order were read over and explained to the petitioner in the language he fully understood and his signatures were obtained by the Arresting Officer on the back of the detention order evidencing communication of the order to the petitioner. The petitioner has been detained in Central Jail Jammu. The grounds of detention were disclosed to the petitioner in the Central Jail, Jammu, on 27-7-1974. The District Magistrate by his letter No. MISA/74/10/JDM dated 27-7-1974 reported to the Government of Jammu and Kashmir the fact of the detention of the petitioner. The letter was accompanied by a copy of the grounds on which the detention order was founded. The Government of Jammu and Kashmir ultimately by Government Order No. ISD-164 of 1974 dated 2-8-1974 approved the detention of the petitioner. The detenu was further informed by the District Magistrate through the Superintendent Central Jail, Jammu. that if he so desired he could make a representation to the Government against his detention. The Government of Jammu and Kashmir vide its letter No. IS/91-D/74 dated 5-8-1974 reported to the Central Government the fact of the approval by the State Government of the order of detention.
3. The petitioner made a representation to the Government of Jammu and Kasrmir against his detention consistently with the provisions of Section 8 of the aforesaid Act. The Advisory Board, constituted under Section 9 of the Act considered the report of the Government and the representation made by the petitioner, and reported to the Government on 31-8-1974 that there were sufficient grounds for detention of the detenu. After considering the report of the Advisory Board the Government of Jammu and Kashmir confirmed the detention of the petitioner for a period of 12 months from the date of detention or until the expiry of the Defence of India Act, 1971, whichever is later by Government Order No. IAS-170 of 1974 dated 2-9-1974. The facts stated above have been sworn by the District Magistrate the detaining authority. The same have not been seriously disputed by the counsel for the petitioner in the course of the hearing. I take these facts as true as I have no reason to disbelieve the same.
4. At the hearing Mr. Bhupinder Singh Jamwal, the counsel for the petitioner, has assailed the detention of the petitioner on two grounds (1) that the grounds disclosed to the petitioner were not specific and therefore the petitioner was not in a position to make an effective representation against his detention and (2) that the three incidents of stabbing mentioned in the grounds of detention constituted specific offences under the Penal law of the State and thus the extraordinary powers vested in the District Magistrate under the Maintenance of Internal Security Act to direct detention, could not have been exercised by him without offending the provisions of the Constitution. I propose to deal with the second ground at length as that raises a debatable issue and involves the consideration of a sizable number of judgments of the Supreme Court. But so far as the grievance regarding the grounds of detention being vague and unspecific is concerned, I do not see any force in the argument and I feel that the same can be disposed of without any difficulty. The grounds of detention are reproduced as under:
Shri Tarseem Lal alias Kala Katoora S/o Shri Sant Ram R/o Mohalla Dalpatian Jammu is a notorious bad character of Jammu and close associate of Sabbar Ali, Majid and Jita Thatiar who are also notorious for their criminal activities.
On 12-3-1973 Tarseem Lal, along with others made a murderous attack on one Vijav Kumar S/o Manohar Lal R/o Rajinder Bazar Jammu and inflicted serious injuries on his person.
On 20-3-1974 Tarseem Lal attacked Kuldip Kumar S/o Durga Dass R/o Upper Bazar Jammu with a deadly weapon and injured him.
Again, on 30-5-1974 Tarseem Lal along with other bad characters made murderous attack on Gopal Singh and Kuldip Rai in Jammu University Campus. Of late the criminal activities of Tarseem Lal have become So frequent and frightening that it is not possible to check them under ordinary law.
District Magistrate Jammu.
5. The grounds aforesaid gave sufficient details of the criminal activities of the petitioner. The dates and the places where the petitioner made murderous attacks on Vijay Kumar son of Manohar Lal. Kuldip Kumar son of Durga Dass and Gopal Singh and Kuldip Rai, have been succinctly given in the grounds of detention. To me, it appears, that there is nothing which can be said to be missing so as to disable the petitioner to make an effective representation against his detention. I have examined the file of the detention of the petitioner which contains inter alia the representation of the petitioner made by him under Section 8 of the Maintenance of Internal Security Act and I find that the representation is comprehensive enough and the petitioner has in his own way tried to meet the allegations made in the grounds of detention. It is wholly a different question as to whether the criminal activities of the petitioner mentioned in the grounds of detention can or cannot constitute a ground for detention. That question, as stated earlier, shall have to be dealt with at length. But so far as the grievance of the petitioner that the grounds were vague and that the petitioner was not in a position to make an effective representation against his detention, is concerned, in my opinion is illusory and ill-founded. Judged thus the first argument of Mr. Jamwal cannot find favour and is accordingly repelled.
6. Before I take up the second question for consideration a few more facts may be stated. While examining the record contained in the file relating to the detention of the petitioner I have come across the letter of the District Magistrate bearing No. 12/MISA/JDM dated 19-8-1974 addressed to the Secretary to Government Home Department, Srinagar. This letter was written by the District Magistrate giving his remarks on the representation made by the petitioner. The first para. of this letter reads as under:
I have issued the detention order in this case after carefully considering all aspects on the basis of reports received from S. P. Jammu. I was satisfied that Shri Tarseem Lal had been engaging in criminal activities for a long time and had of late become a menace to public order. His activities were such as terrorised the local people and created a sense of panic. In the past it had also been experienced by prosecution agency that he was so much of menace to the people of some localities in Jammu that the people were even afraid to come out openly and report his activities to the authorities and even in the cases already registered, they would be afraid to come out and give evidence with the result that it appeared to me difficult to handle this person under the ordinary course of law. In the interest of public order therefore I considered it necessary to detain him under MISA.
7. These remarks of the District Magistrate read with the grounds of detention which were disclosed to the petitioner subsequent to his arrest and detention have to be kept in view in determining whether the District Magistrate was right in drawing the inference that the activities of the petitioner were prejudicial to the maintenance of public order as stated by him in the order of detention itself.
8. With this factual background in view I proceed to consider the second contention of Mr. Jamwal that the ground on which the detention was founded cannot be said to be prejudicial to the maintenance of the public order.
9. Section 3 (1) (a) of the Maintenance of Internal Security Act which alone is relevant for our purposes is reproduced below:
3. Power to make orders detaining certain persons.- (1) The Central Government or the State Government may,-
(a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to-
(i) the defence of India, the relations of India with foreign powers,
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of supplies and services essential to the community.
10. What is contended by Mr. Jam-wal is that in Sub-clause (ii) of Clause (a) of Sub-section (D of Section 3 the expression 'Public Order' cannot be deemed to be synonymous for the expression 'law and order' and no such act as would be an offence triable under the ordinary penal law can constitute a prejudice to the maintenance of the public order.
11. I have no Quarrel with the proposition that the expressions 'public order' and 'Law and order' represent two diffe-rent concepts which though akin in nature differ in the degree and gravity. It is a. plain truth that the society must exist in a regulated form and that any act either of any individual or a group of individuals which has the effect of disturbing or which tends to disturb such a regulated society amounts to an offence under the penal law. The penal law punishes a person for an act which amounts to an offence, for it does not countenance a menace to the existence of an order. The commission of an offence undoubtedly disturbs sobre, smooth and a satisfactory system of society, depending upon the gravity of the offence. Violations of an ordinary character which nose no substantial threat to the smooth running of the society are intended to be and must necessarily be curbed and dealt with under the penal statutes of the country. Even though such violations amount to disturbance to 'law and order' the resort to the penal statutes cannot be dispensed with. There may be cases where a number of people with no community of interest in each other may indulge in commission of crimes. That may confront a law and order problem yet we cannot say that the public order has been disturbed.
12. Viewed from such an angle the distinction between 'law and order' and 'public order' is apparent. Public order essentially refers to a state of affairs in which the public at large feels interested and the maintenance of which is a matter for everybody's concern. It is that fibre which knits the individuals, together and ensures their peaceful coexistence. It is that vital vein, flow through which provides, sustenance to the society as an organic whole. In contradistinction to public order the law and order represents only the subcutaneous tissues a hurt to which no doubt results in bleeding but without effecting the vital vein. To me such a comparison appears to be vividly depicting the true and the precise distinction between 'public order' and 'law and order.'
13. The power of detention which envisages incarceration despite absence of trial, as an extraordinary governmental power, comes into play only if apparent hurt is, to the vital vein and not to the subcutaneous tissues. As in the absence of such an extraordinary and emergent action, by a resort only to the ordinary penal law larger public interests run the risk of being affected. It ushers that the cherished right of a man's personal liberty has to be sacrified at the altar of social good as an individual's good must accord-ing to the well settled principles yield to the good of the society.
14. This background in view, it has to be determined whether the criminal activities of the petitioner stated in the grounds of his detention constituted a threat to the public order. This takes me again to the contents of the grounds of detention.
15. The petitioner is alleged to have made a murderous attack on Vijay Kumar son of Manohar Lal. a resident of Rajinder Bazar, Jammu, and inflicted injuries on his person on 12-3-1974. Again on 20-3-1974 about a week later he attacked one Kuldip Kumar son of Durga Dass resident of Upper Bazar, Jammu, with a deadly weapon and injured him. On 30-5-1974 again say about a month and a half later he made a murderous attack on Gopal Singh and Kuldip Rai in Jammu University Campus. The report of the Superintendent of Police, Jammu, which formed a basis for the action of the District Magistrate for passing the order of detention of the petitioner is on the file and I have perused it. This report reveals that in regard to the first case Police Station Pacca Danga Jammu legistered FIR No. 55/74 under Section 307/148 of the R. P. C. All the accused in that case were arrested but they were released by the Chief Judicial Magistrate, Jammu, on bail. The second incident led to FIR No. 68/74 under Section 324/341 R.P.C. by the City Police Station, Jammu against the petitioner and his companions namely Shama Jat, Jeeta. Sabar Ali, Majid and Onkar Singh. Again he was arrested but was bailed out by the Chief Judicial Magistrate.
In regard to the third incident of 30-5-1974 Police Station City Jammu registered FIR No. 259/74 under Section 307/452/ 120 B/148, 149/324, R. P. C. He was arrested for the third time but was subsequently bailed out by the Chief Judicial Magistrate Jammu on 8-7-1974. The report of the Superintendent of Police further reveals that the petitioner always carries a knife with him; that he is a desperate character and his criminal activities have resulted in great harrassment to the law abiding citizens of Jammu city. The letter of the District Magistrate referred to earlier in the judgment suggests that the people are so much overawed by the petitioner that they are not prepared even to report the matter to the Police and appear as witnesses against him. Does this conduct in any way disturb the public order, is the real Question we are faced with. On a proper consideration of the circumstances of the case the grounds of detention and the material placed before me in the form of the letter of the Superintendent of Police and the letter of the District Magistrate to the Government referred to above I have no hesitation in holding that it was a case not only of a disturbance to law and order but one of disturbance to the public order.
Here is a desperado so frequently committing serious offences that his conduct does disturb the working of the vital vein of the polity. His conduct towards the society is one of absolute recklessness, total disregard and horrible high handed-ness. He has a set of companions who act as abetters and orders in the commission of offences. I have no doubt that law abiding citizens in view of the fact that the Chief Judicial Magistrate has bailed him out thrice even when he was charged with serious offences must be feeling helpless and overawed and thus are prevented from appearing as witnesses against him and reporting against his activities to the police. Under the circumstances can the citizens be saved from this high handedness. Does his conduct exhibited in the criminal activities imputed to him create a stir and a sensation in a small city like Jammu Does'nt it raise a justifiable apprehension in the mind of the people that they might become a victim of an attack by the petitioner To me it appears that the answer to these questions must run in the affirmative. I am further satisfied that the disturbance flowing as a consequence of the conduct of the petitioner does not remain only a disturbance to the law and order but it amounts to a disturbance to the public order as the incidents narrated above must reasonably create an apprehension in the ordinary public regarding their helplessness and their vulnerability to the attacks of the petitioner.
16. There is another aspect of the matter which requires an attention. The Superintendent of the Police at whose report and the District Magistrate by whom the order of detention has been passed in this case were acting as Public functionaries. They more than any other person, were in a position to opine as to whether the activities of the petitioner did or did not have an adverse public effect amounting to disturbance of the public order. No mala fides have been imputed to the District Magistrate by the petitioner in passing the order of detention. The only allegation which appears in the petition is that one Mr. G. S. Sharma, S. H. O. Police Station Pacca Danga was inimically disposed towards the petitioner who has manoeuvred to implicate the petitioner and ultimately got him detained. Such an allegation bereft of meticulous details either of the enmity or of strained relations between the two does not carry the case of the petitioner, so far as the grievance regarding mala fides is concerned, any further.
17. Mr. Jamwal in support of his contention relied upon a judgment of the Supreme Court in Pushkar Mukherjee v. State of West Bengal reported as : 1970CriLJ852 . In that case the detention had been ordered by the District Magistrate on the ground that the activities of the detenue were prejudicial to the maintenance of the public order. In the grounds of detention it was stated that the detenue had assaulted five persons with knife on 3-11-1965 8-10-1966, 8-6-1967, 23-11-1967 and 7-1-1968. Dealing with the question as to whether the alleged activities of the detenue in that case could cause prejudice to the maintenance of public order, their Lordships of the Supreme Court held, that a mere disturbance of law and order is not necessarily sufficient to warrant an action under the Preventive Detention Act and that a disturbance which would affect the public order alone could fall within the scope of the Act.
In that particular case the detention was set aside by the Supreme Court holding that the grounds of detention did not result in public disorder. I have compared the grounds of detention in this case and those on which the detention was based in the case before the Supreme Court. I find that the five acts of assault were committed from 3-11-1965 to 7-1-1968 a period of more than two years. Moreover there was nothing before the Supreme Court to show that the prosecution of the detenue in that case under the ordinary criminal law was rendered impossible just as is evident in this case from the report of the Superintendent and the letter of the District Magistrate. In my opinion that should form the basis for distinguishing the said case from the facts of the present case. As stated earlier within a short span of a month and a, half or so the petitioner in this case is alleged to have been arrested thrice, by the police under serious offences like 307 and 324 of the R. P. C. but was bailed out by the Chief Judicial Magistrate.
The frequent criminal activities of the petitioner coupled with the circumstances that the ordinary criminal law has been rendered ineffective because of his over-aweing attitude in the society do in my opinion create a public stir causing a sense of insecurity in the public and an apprehension of lack of social safety and thus constitutes a substantial Prejudice to the maintenance of the public order. It is the concern which the public developes in respect of danger to public order which gives jurisdiction to the District Magistrate to take resort to the extraordinary power of which he is possessed under Section 3 of the Maintenance of Internal Security Act, Recapitulating the simile given by me earlier in this judgment the injury does not remain confined to the subcutaneous tissues but the haemorrhage therefrom causes a concern to the vital vein thus justifying an action under Section 3 of the Maintenance of Internal Security Act.
18. The next authority cited by Mr. Jamwal is one in Arun Kumar Gosh v. The State of West Bengal reported as : 1970CriLJ1136 . Again in that case the District Magistrate had ordered the detention of the detenu on the ground of his criminal activities exhibited in the shape of assaults, teasing and threat to life. Hidayatullah. C. J. as he then was dealing with the question as to whether the grounds have any bearing on the maintenance of public order observed as under:
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. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. 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. Individual act can be a ground for detention only if it leads to disturbance of the current of life of the community so as to amount a disturbance of the public order and not if it affects merely an individual leaving the tranquillity of the society undisturbed.
19. Applying what has been quoted above to the facts of that particular case the Court in Para. No. 5 of the judgment observed as under:
In the present case all acts of molestation were directed against the family of Phanindra C. Das and were not directed against women in general from the locality. Assaults also were on individuals. The conduct may be reprehensible but it does not add up to the situation where it may be said that the community at large was being disturbed or in other words there was a breach of public order or likelihood of a breach of public order. The case falls within the dictum of Justice Ramaswami and the distinction made in Dr. Ram Manohar Lohia's case : 1966CriLJ608 .
20. In Golam Hussain v. Commissioner of Police, Calcutta reported as : 1974CriLJ938 the detention order under Section 3 of the Maintenance of Internal Security Act was passed on the ground that the activities of the detenu were prejudicial to the maintenance of public order. The grounds of detention on which was founded the order of detention in that case read as follows:
On 8-10-1972 at about 22.25 hrs. you along with your associates Achche Lal Show of I, Manickotolla Bazar Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla Chandra Road, and others, all being armed with bombs, soda-water bottles created a great disturbance of public order on Gouri Shanker Lane in front of premises No. 8 by hurling bombs indiscriminately with a view to attack one Jiban Paul of 8, Gouri Shanker Lane and his group in retaliation to an earlier quarrel that took place with the said Jiban Paul at 8. Gouri Shanker Lane with your associates Satya Narayan Jaiswal and others. The incident terrorised the locality end threw out of gear the normal life stream of the residents of the said locality amounting to police order.
2. On 9-11-1972 some times between 04.45 hrs., you along with your associates Ratish Pradhan alias Laltru of 23/IA, Abinash Kaviraj St. Benode Kr. Jaiswal of 348, Gulu Gategar Lane and other all being armed with brickbats, soda water bottles, bombs, poles, created a great disturbance of public order on Gouri Shanker Lane and Abinash Kaviraj Street by hurling soda-water bottles, brickbats indiscriminately with a view to overawe the organisers, of the Kalipuja that took place in front of 8 Gouri Shanker Lane and thereby to terrorise the locality. As a result the lights of the above pooja pandal were damaged. This was in equal to an incident that took place earlier at about 04.30 hrs., when your associates Benode Kumar and others threw beer bottles at the Kalipuja pandal at 8 Gouri Shanker Lane where some females were then dancing, which was then protested by the local people and the organizers of the said puia.
And if left free and unfettered you are likely to continue to disturb maintenance of Public order by acting in a similar manner as aforesaid.
21. For both these incidents the detenu was charged in a Criminal Court but was discharged by the Court for want of evidence. The Commissioner of Police in affidavit before the Supreme Court had stated that the detenu was discharged by the Court as no witness dared to depose against him in the open Court. The question therefore which arose before the Supreme Court was whether in such circumstances an order of detention could be a valid substitute for a criminal prosecution. Dealing with this question V. R. Krishna Iyer, J. observed as under:
There may be cases where a Court has held a criminal case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court, has found to be baseless. But a case where the order of discharge is made purely for want of evidence on the score that witnesses were too afraid to depose against a desperate character cannot come under this exceptional category.
In para. 5 the Court further observed as follows:
If the detaining authority takes the chance of conviction and, when the Court verdict goes against it, falls back on its detention power to punish one whom the Court would not convict, it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly, an authority thinks on the material before me that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention.'
'Therefore, where the acts were serious, being bomb hurling and brickbat throwing in public places creating panic; the involvement of the detenu was discovered only during the investigation of the offences; the witnesses were scared away from deposing and in those special circumstances the Commissioner formed the satisfaction requisite for ordering preventive detention, the detention order cannot be said to be bad on the grounds that there had been a long interval of nine months between the criminal incidents and the detention order and that the criminal case has failed.
22. These observations of the Supreme Court lend support to the view which I have taken in this case. As stated earlier the petitioner had been arrested thrice and had been bailed out by the Magistrate. The report made by the Superintendent of Police to the District Magistrate and the letter of the District Magistrate clearly show that the petitioner was a desperate character and that no one was prepared to come forth and make a statement against him. Relying therefore on the judgment of the Supreme Court I am of the view that the activities of the petitioner in the present case particularly when he had been bailed out thrice by the Chief Judicial Magistrate and when the witnesses were overawed by him with the result that there was no evidence available against him constitute a grave threat to the maintenance of public order and therefore the District Magistrate was wholly justified in passing the order of detention against him.
23. I borrow support from the observations of Hidayatullah, C. J., quoted above for the view that it is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order, or a threat to public order. As stated earlier in a small city like Jammu so frequent attacks by an individual within a so short span of period do constitute a substantial degree of disturbance to the life of the community in the city. Moreover the concern in the present case caused by the criminal activities of the petitioner is not confined on one family or one individual.
24. The last incident imputed to the petitioner is alleged to have taken place in the University campus an overcrowded Educational Institution. Absence of an action against the petitioner could possibly lead to an encouragement to so many other desperadoes like the petitioner. The helplessness of the police to gather sufficient evidence for a successful prosecution would have the result of the petitioner going scotfree and thus it would cause a reckonable disturbance to the maintenance of public order.
25. In Kartic Chandra Gupta v. State of West Bengal reported as : 1974CriLJ1474 again the Supreme Court upheld the detention of a person who was alleged to have committed criminal acts on two occasions and who was apprehended by the Police when he threatened the police and the bystanders that he would fire on them with a loaded pistol but he was overpowered and put under arrest. In the circumstances of that case it was held that the District Magistrate was entitled to pass the order of detention if that was necessary to prevent the detenu in that case from acting in a manner prejudicial to the maintenance of public order.
26. In the light of the aforesaid judgments of the Supreme Court the conclusion is inescapable that the criminal activities of the petitioner in this case were pregnant with substantial disturbance to the maintenance of public order and for those reasons the District Magistrate was wholly justified in having taken resort to the provisions of the maintenance of the Internal Security Act as but for that action the threat to the maintenance of public order would have been substantial.
27. Both the contentions raised by the counsel for the petitioner have failed. The petition fails consequently and is dismissed.