JUDGMENT
A. Pasayat, J.
1. These two writ applications have been filed by the detenus Basanta Kumar Naik and Atal Bal @ Bhola under Article 226 of the Constitution of India, 1950, seeking issuance of writs of habeas corpus quashing the orders of detention dated 28-10-1991 passed by the District Magistrate, Cuttack, in exercise of powers conferred by Sub-section (2) of Section 3 of the National Security Act. 1980 (hereinafter referred to as ‘the Act’)
2. The orders of detention were passed with a view to prevent the detenus from acting in any manner prejudicial to the maintenance of public order and directing them to be interned in the Circle Jail, Choudwar in pursuance of the said minimus. The orders of detention in English and Oriya languages have been annexed as Annexures 1 and 1 (a) to each of the writ applications. Since the grounds of challenge and rebuttal are common and the grounds of detention were almost identically worded, both the writ applications are being disposed of by this common judgment.
3. The grounds necessitating detention as indicated in the grounds of detention are that on 23-10-1991 both Basanta and Atal armed with deadly weapons like sword and bhujali obstructed one Rabindra Kumar Mallick on the road near the tea stall of Sankarsan Jena and abused him in filthy language for being a member of a rival union of Paradeep Port and both of them attempted to attack him with deadly weapons. Out of consternation, Rabindra ran away leaving behind his bicycle to save his life. He was chased by them up to the tea stall of Sankarsan Jena and then to the houses of Ganapati Mohapatra and Sadasiva Pradhan. Being terrified with the brutal activities, Sankarsan Jena closed down his- shop and Ganapati Mohapatra and Sadasiva Pradhan shut their doors and windows and did not dare to provide shelter to the victim. The other shop keepers of the locality closed down their shops out of fear. At that time one Krushna Chandra Sahoo dragged, Rabindra into his house and saved his life. Such anti social activities of the detenus created panic in the minds of the shop-keepers and pedestrians and they ran away shelter and skelter. Normal traffic on the road crossing was paralysed till the arrival of the police at the spot, The past criminal records showed that each of the detenus was persistently involved in criminal cases which are pending trial in the Court of Judicial Magistrate, first class, Kujang. In almost all the cases, they were-arrested and forwarded to Court, but were released on bail. Commission of offence was repealed by them thereby creating have of in the area. The afore described anti-social activities created a fear of psychosis in the minds of peace loving citizens to carry on their normal avocations and jeopardised the public peace and tranquillity. By such indulgence in violent and anti-social activities the even tempo of life of the community had been adversely a affected. One set of the copy of report of the Superintendent of Police, Sadar Cuttack, and the copies of the supporting documents of the criminal cases were stated to be annexed to the grounds of detention for reference. The detenus were informed that, if so chose, they may file representations to the State Government.
4. The orders of detention have been primarily attacked on two grounds, (i) though the grounds of detention referred to and relied upon the report, of the Superintendent of Police, Sadar Cuttack, and copies of supporting documents of the cases, they were not supplied to the detenus. In any event the detenus do not understand English, and the Oriya translation of the grounds of detention was incomplete in the sense that the report of the Superintendent of Police was not supplied though it was specifically indicated that the same formed part of the grounds of detention, and was annexed. By such non-supply the right to make an effective representation has been materially and prejudicially affected. (ii) The allegations, if any, do not relate to any public order situation, and even if accepted at face value, constituted a law and order situation for which stringent action like preventive detention is impermissible. The learned counsel for Stats, however, submits that the contents of the report in question were explained to the datenus by the Assistant Jailor, and if the detenu in any way were prejudiced by non-supply they should have made a demand for the non-supplied documents. The incident dated 23-10-1991 was of such violent and macabre nature that it would be improper to term it to be a law and order situation. The impact thereof was no gruesome that the even tempo of the life of the community was disturbed and tranquillity paralysed.
5. A preventive detention is not punitive but precautionary measure. The object is not to punish a man for having done something but to prevent and intercept him before he does it again. No offence is proved, nor any charge is formulated, and the justification of such detention is suspicion or reasonable probability, and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See Rex v. Halliday : 1917 AC 260 : Mr. Kubic Dariuzz v. Union of India and Ors : AIR 1990 SC 605). Preventive detention is devised to afford protection to society. At the same time, a person’s greatest of human freedoms, i.e., personal liberty is deprived and therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguards, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights including the right of persona) liberty, would lose all their meaning, are the true justifications for the laws of preventive detention. The deprivation of personal liberty of individuals becomes imperative to protect the society from denigrating. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public order can provide grounds for a satisfaction that similar propensities on the part of the person concerned are likely and there is a possible future manifestation. This jurisdiction has been described as a jurisdiction of suspicion; and the compulsions to preserve the values of freedom, of a democratic society and of social order sometimes merit the curtailment of the Individual liberty. [See Ayya and Ayub v. State of UP. and Anr. : AIR 1989 SC 364, Brij Mohan Sharma v. District Magistrate, Cuttack and Ors. : 1991 (I) OLR 495.] No law is an end itself and the curtailment of liberty for reasons of maintenance of public safety and tranquility has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against the detention, as imperated in Article 22(5) of the Constitution. The grant of opportunity for representation must be an effective one. Whenever there is executive invasion on personal liberty, the Court has to weigh in golden scales whether the personal liberty is to be placed at a high pedestal regardless of the social cost involved in the release of a possible renegade. (See Icchudevi v. Union of India : AIR 1980 SC 1983). The question whether there is sufficient material to justify the detention is not open to judicial scrutiny. Sufficiency of material is inconsequential in a case of preventive detention. It is not for the Court to pronounce on possible inferences from evidence for or against the detenu, it is for the detaining authority to satisfy himself about these matters and about the need to order the preventive detention and its duration. In considering the legality of an order of detention, the High Court does not and cannot function as a Court of appeal. If there is any material to justify passing of the detention order, the necessity for it is a matter of subjective assessment and satisfaction by the detaining authority with which no Court would be ordinarily justified in interfering unless it is shown that there has been any infraction of the precautions afforded under Article 22(5). That the matter falls within the subjective satisfaction does not mean it could be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which Courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in Court when challenged. If the material factors are slurred over, the formula of subjective satisfaction cannot salvage the deprivatory order. Statutory immunology hardly moves such invalidity and the jurisprudence of detention without trial is not the vanishing point of judicial review. An order of detention is made on the subjective satisfaction of the detaining authority. The Court cannot consider the propriety of sufficiency of the grounds on which the subjective satisfaction is based provided they have a rational probative value, and not extraneous to the purport of detention. The Court cannot review the grounds and substitute its own opinion for the detention by applying the objective tests or determine the necessity of detention for a specified purpose. However, grounds of detention are not wholly immune from judicial review. Though veil of subjective satisfaction cannot be lifted by the Courts with the object of finding out its objective sufficiency, it could always be seen by Courts whether such satisfaction was honest and not a colourable exercise of power.
6. Undisputedly the report of the Superintendent of Police was not supplied to the detenus in Oriya. It has been specifically asserted by the detenus that they do not understand English language and only know Oriya language, While accepting that the Oriya translation of the report of the Superintendent of Police was not supplied, it has been submitted that the right of making representation was not prejudiced or affected. In our considered opinion, the plea is so feeble that it is to be noticed to be rejected. It is the duty of the draining authority to provide adequate opportunity to a detenu for making an effective representation. It cannot be left to the choice of the detaining authority as to what document would be passed on to the detenu to make a representation. The supply of report in English language was highlighted to show that in reality the case at hand is not a case of non-supply, but at the most a case of non-supply of copy in Oriya language. We fail to understand how that makes a difference. No reason has been indicated for non-supply of copy of the report of the Superintendent of Police to the detenus in Oriya language though in the grounds of detention in the said language it was clearly stated that a copy is annexed. As observed by the Supreme Court in Ibrahim Ahmad Batti v. State of Gujarat and Ors. : AIR 1982 SC 1500, and in M. Ahamedkutty v. Union of India and Anr. : (1990) 2 SCC 1, it is not available to the detaining authority to say that the detenu should have demanded a copy of the document which was not supplied; and the plea relating to non-prejudice is without substance. It has not been disputed and rather accepted that the report of the Superintendent of Police was referred to and relied upon in the grounds of detention. It is a vital document and had substantial role to play in the formulation of the detaining authority’s satisfaction about desirability to detain the detenus. The non-supply rendered the option to make representation irretrievably ineffective, and therefore, renders the detention unsustainable.
7. In view of this conclusion it is not really necessary to deal with the question whether the incident which formed the matrix of the order of detention related to public order or law and order. However, keeping in view the vehemence with which the learned counsel for the State has argued that the incident related to public order, and the large number of cases where such pleas are taken, we are dealing with the question. ‘Public order’ is an expression of wide connotation and signifies that state of tranquillity prevailing among the members of a political society as a result of the internal regulations enforced by the Government which they have instituted. The words ‘public order’ and ‘public tranquillity’ overlap to a certain extent but there are matters which disturb public tranquillity without being a disturbance of public order. Public order requires absence of disturbance of a state of serenity in society, but it goes further. It means, what the French designate ordre publique, defined as an absence of insurrection, riot, turbulence, or crimes of violence. By the expression ‘maintenance of public order’ what is intended is the prevention of grave public disorder. It is not the same as maintenance of law and order. The latter means prevention of disorders comparatively lesser gravity and of local significance. Expounding the phrase ‘maintenance of public order’ the apex Court has observed that one has to imagine three concentric circles : Law and order represents the largest circle within which is the next circle represent in public order and the smallest circle represents the security of the State. All cases of disturbances of public tranquillity fall in the largest circle, but some of them are outside ‘public order’ for the purpose of the phrase ‘maintenance of public order’. (See Dr. Ram Manohar Lohia v. State of Bihar and Ors. : AIR 1966 SC 740 : and Madhu Limaye v. Subdivisional Magistrate, Monghyr and Ors. etc. : AIR 1971 SC 2486 ). The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Act, but disturbances which will affect public order can justify detention under that head. A line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. 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. The question whether a person has only committed 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. There is no magical formula by which on a case can be distinguished from another. Therefore, no strainjacket formula can be laid down and it would depend upon the act and its impact. The conduct of a person may be reprehensible, but it does not add up to the situation whereby the community at large may be disturbed. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different context and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore to touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. Qualitatively, the acts may not be very different. A state of peace or orderly tranquillity 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. The nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. One cannot isolate the act from its ‘public setting or analyse its molecules as in a laboratory. What has to be seen is its total effect on the flow of orderly life It may be a question of the degree or quality of the activity, of the sensitivity of the situation and the psychic response of the involved people. To dissect further is to defeat the purpose of social defence which is the paramount purpose of preventive detention.
8. The background of the incident as described in the detention order is difference of opinion in relation to rival union activities between detenu on one hand and one Rabindra on the other. The target of the attack was one individual. The ire of the detenus was directed against a particular individual. Every assault in a public place like a public road where a person is injured is likely to cause horror and even panic and terror to those who are spectators, but that does not mean that dislocations of the community life is created. It is not the case of the detaining authority that the acts of the detenus were intended to cause terror in the locality so that those around would be prevented from their normal avocations of life. The incident pertained to a specific individual, and in our considered opinion related to and fell within the area of law and order. It, therefore did not warrant the drastic step of preventive detention.
9. Since we have accepted both the contention raised on behalf of the detenus, we hold that their detention is unauthorised, set aside the impugned orders of detention passed on 28-10-1991, and direct them to be set at liberty forthwith if their detention is not required in connection with any other case.
The petitions are accordingly allowed.
S.K. Mohanty, J.
I agree.