ORDER
S.L. Kochar, J.
1. The petitioner (detenu) has challenged his detention order under the provisions of National Security Act, passed by the District Magistrate, Ujjain on 9-9-2002 (Annexure A) and also confirmed by the State Government. The grounds supplied to the detenu are Annexure B.
2. We have heard Shri A.S. Garg, learned Sr. Counsel assisted by Shri G.S. Yadav for the petitioner and Shri G. Desai, learned Deputy Advocate General, appearing for the respondent perused the entire record.
3. Learned Counsel for the petitioner has vehemently argued that the grounds of detention are clearly indicative of the fact that the detaining authority has not effectively applied its mind while passing the detention order. According to ground No. 3, the incident of the year 1996 for the offences under Sections 323, 325, 341 and 506, IPC has been considered whereas this case was already decided on 30-11-98. Again, in ground No. 4, the offence was registered by the police in the year 1998 under Sections 147, 148, 149 and 323, IPC and the same has also been decided on 6-9-2000. But, in both these grounds, it is mentioned that the cases are pending before the Courts. Learned Counsel has also submitted that the copy of the First Information Report of the incident dated 7-9-2002 relating to ground No. 1 has been supplied to him and this is the main ground for detention of the petitioner (detenu). According to this ground, on 7-9-2002, in the noon at 1.00 P.M. the detenu had assaulted the complainant Satish s/o Chandarsingh r/o Khedi Mohalla, Tarana and because of his act, the businessmen and other persons who were present in the market were terrorized and on the objection being raised by law-abiding people, the detenu uttered as under :–
^^ge yksx bl ‘kgj esa pkgsaxs ogh gksxk gels
Vdjkus okys dks [kRe dj nsaxsA**
4. By the aforesaid utterances, the detenu created fear in the atmosphere of the locality and against his act, the inhabitants of Tarana came in a procession before the Police Station which put serious obstruction and hindrance in the traffic and the situation was beyond control which led to the disturbance of maintenance of public order. To substantiate this ground, nothing is mentioned in the copy of the First Information Report of the incident dated 7-9-2002 and if there was any report or document relating to this ground, the same were not supplied to the detenu. Therefore, he was not in a position to submit his representation effectively to the State Government as well as to the Advisory Board and he was deprived of the relevant material. Learned Counsel for the detenu has placed reliance on the decisions Ravi Tiwari and Ors. v. Union of India and Ors., reported in 2003(3) M.P.H.T. 528 (DB) = 2003(2) JLJ 43 and Smt. Victoria Fernandes v. Lalmal Sawma and Ors., AIR 1992 Supreme Court 687.
5. As against the aforesaid submission, learned Deputy Advocate General Shri Desai has submitted that the grounds of detention are clearly establishing that the act of the detenu was sufficient for creating disturbance in communal peace and harmony and there was communal tension in the town and in the market in a broad-day light. The detenu also assaulted Satish s/o Chandarsingh and issued general threat to the public of the locality. His action has caused disturbance to the public order. Therefore, the learned District Magistrate has passed the order of detention under Section 3 Sub-section (2) of the National Security Act, 1980. According to Shri Desai, the solitary ground No. 1 is sufficient for detention of the detenu/petitioner.
6. Having heard learned Counsel for the parties, and after perusing the ground for detention, it is crystal clear that the subjective satisfaction arrived at by the learned District Magistrate, Ujjain is not based on true facts. The case mentioned in ground No. 3 is of the year 1996 and the same has been decided by judgment dated 30-11-98. Copy of the judgment filed by the petitioner is Annexure G whereby the petitioner and other two co- accused persons were acquitted by the learned Judicial Magistrate First Class, Tarana. But the learned District Magistrate has mentioned that still the case is pending before the Court. Same is the situation for the incident mentioned in ground No. 4. This is the incident of the year 1998 and the case has been decided by judgment dated 6-9-2000, copy whereof is filed as Annexure F by the petitioner. While passing the detention order, it appears that the correct factual position was not placed before the learned District Magistrate by the concerned police and the learned District Magistrate while arriving at the subjective satisfaction, did not care for calling for and perusing the positive material and documents relating to the case concerned.
7. We have perused the return carefully filed by the respondents and this factual position about decision of both the cases before passing the detention order, has not been denied. Even at the time of hearing the petition, this factual position has not been controverted. Therefore, we are constrained to mention that the subjective satisfaction for taking extreme step for detaining the petitioner under the provisions of National Security Act has been taken by the learned District Magistrate without proper and effective application of mind and the same was not based on true factual position.
8. So far as ground No. 1 relating to incident dated 7-9-2002, copy of the First Information Report supplied to the detenu is perused, which is available in the supplementary paper-book at page 10 (Annexure I). This First Information Report is nowhere disclosing the fact about the aforementioned serious utterances by the detenu in the market while or after beating Satish s/o Chandarsingh. The First Information Report (Annexure I) is a simple First Information Report regarding commission of robbery. On 7-9-2002 in the noon, Rs. 30,000/- were robbed of from the possession of complainant Satish. This First Information Report is completely at variance with ground No. 1. Ground No. 1 is nowhere disclosing the fact that Satish was robbed of in the market. It discloses only about his beating in the market and serious utterances terrorizing the businessmen and persons in the market by the petitioner whereas all these facts arc completely missing in the FIR. The fact regarding procession and obstruction in traffic as well as communal tension in the town or other locality is also missing in the First Information Report. We are unable to understand as to on what basis the learned District Magistrate, Ujjain has considered ground No. 1 because no such document has been supplied to the petitioner so that he could be able to submit his effective representation. The First Information Report relating to incident dated 7-9-2002 (Annexure I) is not disclosing all the facts mentioned in ground No. 1 and is a simple First Information Report of case of robbery.
9. We have, therefore, no hesitation to hold that while passing the detention order, the learned District Magistrate has not applied his mind effectively for coming to the subjective satisfaction and the order of detention was passed mechanically.
10. The First Information Report (Annexure I) dated 7-9-2002 pertains to a simple incident of robbery and the same could have been dealt with by prosecuting the petitioner for the offence punishable under the Penal Code before the Court of law. This First Information is not disclosing about disturbance of public order which required the Detaining Authority to detain the detenu under Section 3(2) of the National Security Act. The Supreme Court has dealt with the difference between “law and order” and “public order”, in the case of Smt. Victoria Femandes v. Lalmal Sawma (supra), Para 8 of which reads as under :–
“While the expression ‘law and order’ is wider in scope inasmuch as contravention of law always affects order, while ‘public order’ has a narrower ambit and public order would be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of ‘law and order’ and ‘public order’ is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wider spectrum of public, it could raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular corruption of disorder that helps distinguish it as an act affecting ‘public order’ from that concerning ‘law and order’. The question to ask is : Does it lead to disturbance of the current life of the community so as to amount a disturbance of the public order or does it effect merely an individual leaving the tranquility of the society undisturbed ? This question has to be faced in every case on its facts.”
11. Applying the abovcmentioned test, we are of the opinion that the incident dated 7-9-2002 as mentioned in the First Information Report (Annexure I) regarding alleged commission of robbery by the petitioner/ detenu alongwith other accused person’s was not of such a magnitude and intensity as to have potentiality of disturbing the even tempo of community so as to amount to act prejudicial to the maintenance of public order.
12. The Division Bench of this Court (Principal Bench) in the judgment of Ravi Tiwari and Ors. v. Union of India (supra), has held that subjective satisfaction can not be lightly recorded by reproducing alternative clause of statute. The subjective satisfaction on the prevailing circumstances or circumstances that are likely to prevail at a future date, is the sine qua non for the exercise of power. As discussed above, in the present case, there was no material available. Subjective satisfaction of the learned District Magistrate was not based on true material regarding past events of the detenu and the copy of the First Information Report of the alleged incident of 7-9-2002 is not disclosing the events as mentioned in ground No. 1. We are, therefore, of the opinion that the detention order passed by the learned District Magistrate, Ujjain and confirmed by the State Government is not sustainablc, and the same is liable to be quashed.
13. Ex-consequenti, this petition is allowed and the order passed by the District Magistrate, Ujjain (Annexure A) and confirmed by the State Government is quashed. The detenu/petitioner is directed to be released forthwith, if not required in any other case.