Crl No 15 of 1989
Under Article 32 of the Constitution of India
TU Mehta and SC Patel for the Petitioner
GA Shah MN Shroff and KMM Khan for the Respond ents
The Judgment of the Court was delivered by BC RAY J
We have already pronounced in Court on May 5 1986 the order allowing the writ petition and stating there in that the written judgment will follow later on
Pursuant to this are passing the judgment embodying reasons
This writ petition is directed against the order of detention made under section 31 of Gujarat Prevention of Anti Social Activities Act 1985 mainly on the grounds that the grounds are not germane and relevant and there has been non application of mind by the detaining authority in making the said order
The detenu was arrested and kept in Sabarmati Central Jail on 572 October 5 1988 under the impugned detention order made on October 5 1988 by the respondent No 1 Shri SN Sinha Police Commissioner Ahmedabad City and the grounds had been served on him
The detenu immediately thereafter made representations to the detaining authority as well as to the State Govern ment and also to the Advisory Board against the impugned order of detention questioning the legality and validity of the detention order
But uptil now he has not received any intimation in respect of his aforesaid representation
The detenu thereafter challenged the impugned order of detention before this Court by the instant Writ Petition No 15 of 1989for quashing the same
Before proceeding to consider on merit it is necessary to quote excerpts of the grounds of detention
That in the Shahalam Chandola Tank area you with the help of your companions are committing acts affecting human body as shown in Chapter XVI of the Indian Penal Code with the help of Rampuri knife Razor etc
You are creating atmosphere of terror and danger by causing injuries and by showing lethal weapons to innocent citizens
You are known as dangerous and terrible person in the said area
Therefore you are a dangerous person  as defined under section 2c of the said Act and you are by creating atmosphere of danger and terror becoming hurdle in the way of maintenance of law and order in the said area
For such acts of yours the following criminal offences under the Indian Penal Code have been registered in the police record against you
The details thereof are as under section No Police Stn
Crime R No Section Result 1
Kagdapith 9685 324504 114 Compounded IPC 1351 BP 2
Maninagar 12086 Secs
336337 Compounded 427 114 IPC 3
Kagdapith 22587 Sec
1351 B P
Conviction 4
Maninagar 12286 Secs
307451 147 148 149436 440 1208 IPC 25C Arms Act 3 4 Explosive
Not proved
573 5
Maninagar 3388 Sec
324 504 Under in 114 IPC 1351 vestigation
BP Act
Kagdapith 5188 307232 114 IPC Under in 1351 BP Act
vestigation
Kagadapith 8188 326 114 IPC Under in 1351 BP Act vestigation
Thus on scrutiny of the complaints proposals and other papers therewith it appears that you are committing of fences affecting human body in the said area by holding deadly weapons such as knife razor tamancha sword hockey stick iron pipes etc
Therefore you are a dangerous person as defined in section 2c of the said Act
Further you are robbing persons who pass from there for business or service by showing deadly weapons
In the said area in drunken condition you are demanding money from those passing from there
If they do not give money you are threatening them of murder by showing razor of Rampuri knife
You are beating peace loving citizens in the said area in public believing that they are giving information of your activities to the police
By this you are coming in the way of maintenance of public order
Particulars in support of your aforesaid anti social activities have been given by four persons residing in the said area or doing trade or business in the said area in their statements
Copies thereof are given herewith
Being afraid of you
the aforesaid witnesses have asked not to disclose their names and addresses because they are afraid of damage to their person and property and their safety and on reliable inquiry it is found to be true
Therefore you are not given names and addresses of those witnesses as provided in section 92 of PASA ACT 1985 however contents of the facts states by them are given to you                 Taking into consideration all the aforesaid facts I am fully satisfied that you are committing offences punishable under the Indian Penal Code and affecting to human body
You are a notorious terrible and dangerous person
Due to such activities of yours public order is disturbed very often in the said area
By such activities you have 574 become hurdle in maintenance of public order
 The respondent No 1 has thus referred to seven criminal cases filed against the petitioner and also the statements of four persons residing in the area recorded by the police
The respondent No 1 has also made averments in the grounds alleging various anti social activities of the petitioner and after considering the same made the impugned order of detenu on forming an opinion that the petitioner is a dan gerous person within the meaning of section 2c of the said Act
The names and addresses of the four witnesses have not been disclosed claiming privilege under section 92 of PASA  Act
As regards the seven criminal cases the detenu has been acquitted of the charges in the first two cases that is Kagdapith case No 9685 and Maninager case No 12086 which have been compounded In the third case under section 135 of the Bombay Police Act that is Kagdapith case No 22587 the detenu has been convicted
But it has no relevance for the purpose of forming an opinion that the petitioner is a dangerous person under section 2c of PASA Act
As regards the case No 4 that is criminal case No 12286 the petitioner has been acquitted
The other three criminal cases that is Maninagar case No 3388 Kagdapith case No 5188  Kagda pith case No 8188 are all under investigation and in these cases the petitioner has been enlarged on bail
It has also been stated that the grounds of detention supplied to the petitioner are vague and indefinite and as such the detenu could not make an effective and proper representation under article 225 of the Constitution
It has further been stated that out of the aforesaid seven criminal cases the first two criminal cases are not proximate to the date of making the impugned order of detention
There is absolute non application of mind by the detaining authority in coming to his subjective satisfaction that the impugned order was necessary to be made to prevent the detenu from acting in any manner prejudicial to the maintenance of public order
The respondent No 1 filed an affidavit in reply stat ing inter alia that the petitioner detenu is indulging in criminal activities prejudicial to the maintenance of the public order and as such the order of detention was made against the detenu after considering that recourse to ac tions under the provisions of ordinary law will not be adequate
It has been further denied in paragraph d of the said affidavit the statement that no effective representa tion could be made due to non supply of the names and ad dresses of the so called witnesses and other relevant mate rials as made in the petition
It has also been stated that on the basis of the apprehension expressed by those four witnesses 575 whose statements have been recorded by the Police Inspector and verified by the Superintendent of Police that their names and addresses have not been disclosed by the detaining authority claiming the privilege available under section 92 of the Gujarat Prevention of AntiSocial Activities Act 1985
It has also been stated that the detaining authority has been subjectively satisfied that the petitioner is indulging in nefarious activities prejudicial to the maintenance of public order and as such the impugned order of detention was made by him against the detenu It has also been stated that in Criminal Case No 22587 the detenu was found with razor and he was convicted in that particular case
It has also been
stated that from the cases registered against the detenu from 1985 to 1988 that the detenu is involved in prejudicial activities from 1985 to 1988 and as such it was inferred that the passing of detention order was the only remedy to restrain the petitioner from indulging in similar prejudicial activities
It is evident from the grounds of detention that the impugned order of detention was made on the ground that the petitioner is a dangerous and terrible person in the area as defined in section 2c of the PASA Act
The said section states dangerous person means a person who either by himself or as a member or leader of a gang during a period of three successive years habitually commit or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code XLV of 1860 or any of the offences punishable under Chapter V of the 54 of 1959
 In the grounds it has been stated that the detenu by creat ing atmosphere of danger and terror has become hurdle in the way of maintenance of law and order in the said area
It has also been stated that for such acts as well as due to the following criminal offences under the Indian Penal Code registered against him the detenu has become a dangerous person of the area
It has also been stated that the detenu has been robbing persons who pass from there for business or service by showing deadly weapons
It has also been stated In the said area in drunken condition you are demanding money from those passing from there
If they do not give money you are threatening them of murder by showing razor or Rampuri knife
You are beating peace loving citizens in the said area in public believing that they are giving informa tion of your criminal activities to the police
By this you are coming in the way of maintenance of public order
 576 It has already been stated hereinbefore that offences under Chapter XVI of Indian Penal Code have been compounded
and the detenu has been acquitted
As regards the third case that is Kagdapith case No 22587 under section 135 of Bombay Police Act the petitioner was convicted
This offence is not one of the offences falling within the offences men tioned in section 2c of the PASA Act and as such this case cannot be taken into consideration to hold the detenu a dangerous person
As regards the fourth case Maninagar case No 12286 being not proved against the petitioner he has been acquitted of the offences charged in the said case
The other three remaining cases that is Maninagar case No 3388 Kagdapith case No 1588 and 8188 are all under investigation
Therefore the fourth case in which the petitioner had already obtained acquittal could not be taken into consideration
For the purpose of determining the petitioner as a dangerous person it is also very relevant to notice that section 2c defines dangerous person as a person who habitually commits or attempts to commit offences pun ishable under Chapter XVI or Chapter XVII of Indian Penal Code or any of the offences under Chapter V of the 
From the aforesaid seven criminal cases two cases are of 1985 and 1986 which are not proximate to the date of the order of detention and so stale
Moreover the petitioner being acquitted the said cases could not be taken into consideration
Similarly case No 3 also fails outside the purview of the section 2c of the said Act
Fourth case No 12286 can also not be considered as petitioner earned acquittal
Merely on consideration of the other three crimi nal cases which are under investigation and are yet to be decided the detaining authority cannot come to his subjec tive satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred in section 2c of the PASA Act
The other averments made in the said grounds and referred to hereinbefore are absolutely vague in as much as no particulars as to which persons have been robbed or what offences have been committed by showing deadly weapons at what place have not been mentioned
There is also no mention when and where the detenu in a drunken condition demanded money from whom nor it has been stated when the detenu threatened whom to murder by showing razor or Rampuri knife
There is no particular instance also as to which peace loving citizens and in which area the petitioner has beaten in public believing that they are giving infor mation of his criminal activities to the police
It is also a vague statement that the detenu is coming in the way of maintenance of public order
Similarly the statement of the said four witnesses mentioned in the grounds of detention are also very vague and without any particulars of the names of the four witnesses and their addresses were not dis closed
These statements are also 577 vague
In such circumstances it is not at all possible for the detenu to make a proper and effective representation except merely denying the alleged grounds of detention as mandatorily required under article 225 of the Constitution of India
This ArtiCle confers on a detenu two fundamental rights namely 1 that the detaining authority has to communicate to the detenu the grounds as early as possible on which the order of detention has been made and secondly the right to make an effective representation against the said order
This obviously requires that the grounds must not be vague but must be specific relevant in order to enable the detenu to make an appropriate and effecting representation against the same before the Advisory Board as well as before other authorities including detaining author ity
The grounds and the averments made in the grounds which were served on the detenu are Vague and as such they are violative of the article 225 of the Constitution of India
It is pertinent to refer in this connection the decision re ported in Pushkar Mukharjee  Ors
vs The State of West Bengal  at page 641 Similarly if some of the grounds supplied to the detenu are so vague that they would virtually deprive the detenu of the statutory right of making a representation that again may make the order of detention invalid
 That has been referred to have been relied upon in the subsequent decision in the matter of Piyush Kantilal Mehta vs Commissioner of Police Ahmedabad City  Anr JT 19884 SC 703 at page 710
It was held by this Court that the ground was extremely vague and gave no particulars to enable the petitioners to make an adequate representation against the order of deten tion and it infringed the constitutional safeguard provided under article 225 of the Constitution of India
 In the case of Pushkar Mukharjee the ground No 2 states You have become a menace to the society and there have been disturbances and confusion in the lives of peaceful citizens of Barnset and Khardah PS areas under 24 Parganas District and the inhabitants thereof are constant threat of disturbances of public order
 It was held in this case that It is manifest that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided under article 225
 578 The second crucial question that fails for consideration in this case is whether the grounds of detention particular ly referring to the seven criminal cases are relevant and germane grounds for passing of an order of detention under section 31 of the PASA Act
All the seven criminal cases men tioned relate to problem of law and order and not public order in as much as they disclose cases relating to particu lar persons which has nothing to do with the maintenance of public order
As has already been said hereinbefore that out of the seven criminal cases two have been compounded and in the fourth case the criminal charges have not been proved against the petitioner as such he was acquitted
The third case being under section 135 of the Bombay Police Act does not fall within the purview of the section 2c of the Act and it is  confined to a private individual
The other three cases which are under investigation also relate to assault to private individuals and they have nothing to do with the disturbance of even tempo of the life of the community or of men of a particular locality nor does it affect the even flow of life of the public as a whole
Section 31 clearly mandates that the order of detention can be made only when the State Government or its authorised officer has come to a subjective satisfaction that a person is required to be detained in order to prevent him from acting in any manner prejudicial to the maintenance of the public order
Sub section 4 embodies a deeming clause to the effect that a person should be deemed to act in any manner prejudicial to the maintenance of public order when such person is engaged in any activities as a dangerous person which affect ad versely or are likely to affect adversely the maintenance of public order
Explanation 2 clause 4 further provides that for the purpose of this sub section public order shall be deemed likely to be affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub section directly or indirectly is causing or is likely to cause any harm danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or wide spread danger of life property or public health
Coming to this particular case the criminal cases mentioned in the grounds do not refer to any dangerous harmful or adverse act or alarm which gives rise to a feeling of insecurity for the general public amongst the persons of a locality
The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order
Its reach and effect is not so deep as to affect the public at large
It does not create or tend or create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order
There is nothing to show that the above activities of the petitioner have 579 affected or tended to affect the even tempo of fife of the community
An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order
The difference between the law and order and public order has been very succinctly stated by this Court in Dr Ram Manohar Lohia vs State of Bihar  Ors 966 1 SCR 709 at page 746 wherein it has been stated that It will thus appear that just as public order in the rulings of this Court earlier cited was said to comprehend disorders of less gravity than those affecting security of State law and order also comprehends disor ders of less gravity than those affecting public order
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 the State
But using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of Indian Rules
 In Pushkar Mukharjee vs State of West Bengal supra it has been stated that It is manifest that every act of assault or injury to specific persons does not lead to public disorder
When two people quarrel and fight and assault each other inside a house or in a street it may be said that there is disorder but not public disorder
Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the grounds that they were disturbing public order
The contravention of any law always affects order but before it can be said to affect public order it must affect the community or the public at large
In this connection we must draw a line of demarcation between serious and aggravated forms of disor der 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
A mere disturbance of law and order leading to
580 disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act
A District Magistrate is therefore entitled to take action under section 31 of the Act to pre vent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances
 It has also been observed in a recent decision of the Supreme Court in Piyush Kantilal Mehta vs The Commissioner of Police Ahmedabad City supra that The allegations made against the petitioner may give rise to a question of law and order but surely they have nothing to do with the question of public order
A person may be very fierce by nature but so long as the public generally are not affected by his activities or conduct the question of maintenance of public order will not arise
In order that an activity may be said to affect adversely the maintenance of public order there must be materials to show that there has been a feel ing of insecurity among the general public
If any act of a person creates panic or fear in the minds of the members of the public upset ting the even tempo of life of the community such act must be said to have a direct bearing on the question of maintenance of public order
The commission of an offence will not necessarily come within the purview of public order 
 Our attention has been drawn to the decision in the case of Ashok Kumar vs Delhi Administration In that case in the grounds of detention thirty six criminal cases have been referred to showing the prejudicial activi ties of the detenu leading to public disorder
This Court in considering these series of criminal cases committed by the detenu held that the detenu appears to have taken a life of crime and become a notorious character
The fact that the petitioner and his associates are facing trial or the mat ters are still under investigation only shows that they are such dangerous characters that people are afraid of giving evidence against him
The armed holdup gangsters in an exclusive residential areas of the city where persons are deprived of their belongings at the point of knife or re volver reveal organised crime
The particular acts enumerat ed in the grounds of detention clearly show that the activi ties of the detenu cover a wide field and fall within the contours of the concept of public order
The 581 grounds furnished were also neither vague nor irrelevant or lacking in particulars or were not inadequate or insuffi cient for the objective satisfaction of the detaining au thority
Considering these this Court held in the particu lar facts and circumstances of that case that the order of detention made by the detaining authority after being sub jectively satisfied that the acts of the detenu hinder the maintenance of public order
The facts and circumstances of that case are distin guishable from the facts of the present case and as such it has got no application
There is nothing in this case to show that the petitioner was a member of a gang which are engaged in criminal activities systematically in a particu lar locality and those create a panic and a sense of insecu rity amongst the residents of that particular area in con sideration of which the impugned order was made
Considering the above decisions we are unable to hold that the criminal cases mentioned in the grounds and the statements of the witnesses referred to in the vague and irrelevant grounds of detention do not in any way pose a threat to the maintenance of public order nor it disturbs the even tempo of public life as envisaged in section 31 of PASA Act
So there has been complete non application of mind by the detaining authority before reaching a subjective satisfaction to make the im pugned order of detention
It has been urged on behalf of the detenu that there has been no consideration by the detaining authority of the relevant facts and circumstances before making an order under section 92 of the PASA Act in not disclosing the names and addresses of the witnesses on whose statements the subjective satisfaction has been arrived at
It has also been stated in this connection that in the grounds of deten tion it has merely been stated Being afraid of you the aforesaid witnesses have asked not to disclose their names and addresses because they are afraid of persons
It has been urged with force that this ground does not refer that the detaining authority has himself considered and satisfied that the disclosure of their names and addresses are likely to cause damages to their person and properly
It has been stated by the detaining authority that on relevant enquiry it found those statements to be true and as such the names and addresses of those witnesses have not been given to the detenu is provided in section 92 of the PASA Act 1985
It has been contended on behalf of the petitioner that there is nothing to show that the detaining authority has himself considered that in public interest the names and addresses of these persons should not be disclosed and so such non disclosure is vague
We do not want to enter into this controversy and decide the same as in our opinion the 582 detaining authority has been satisfied not to disclose the names of those witnesses under section 92 of the said Act
No other grounds have been urged before us on behalf of the petitioner
For the reasons aforesaid we hold the order of deten tion is legal and bad and as such we allow the writ peti tion
The order of detention is quashed and set aside and the detenu is set free forthwith
Lal Petition allowed


Summary:
The respondents who were lorry drivers cleaners and coolie were carrying fertiliser bags in trucks from Indore Madhya Pradesh to Maharashtra
They were intercepted at a Sales Tax Barrier near the border of Maharashtra State
The documents seized from the lorry drivers contained the in voices and other records but did not include permits issued under the Fertilisers Movement Control Order 1973
Conse quently they were prosecuted under the Fertiliser Movement Control Order 1973 read with sections 3 and 7 of the for exporting fertilisers from Madhya Pradesh to Maharashtra without a valid permit
The Trial Court acquitted the respondents holding that i the prosecution had failed to prove mens rea on the part of the respondents and ii the act of transportation of the fertiliser bags in trucks by the respondents constituted merely preparation and not attempted commission of the offence
Appeals were tided by the State against the acquittal under section 3783 of the Cr
PC 1973 but the High Court declined to grant leave
Hence these appeals by the State
Allowing the appeals 550 HELD 1
The words used in section 71 are if any person contravenes whether knowingly intentionally or otherwise any Order made under section 3
The section is comprehensively worded so that it takes within its fold not only contraventions done knowingly or intentionally but even otherwise ie done unintentionally
The element of mens rea in export of fertiliser bags without a valid permit is therefore not a necessary ingredient for convicting a person for contravention of an order made under section 3 if the factum of export or attempt to export is established by the evidence on record
554C D 11
The crucial words whether knowingly intentionally or otherwise were inserted in section 7 in order to prevent persons committing offences under the Act escaping punish ment on the plea that the offences were not committed delib erately
The amendment was brought about in 1967 in order to achieve the avowed purpose and object of the legislation
557C 12
Therefore the Trial Court and the High Court committed an error in taking the view that the respondents in each of the appeals were not liable for conviction for contravention of the Fertiliser Movement Control Order 1973 read with sections 3 and 7 of the because the prosecution had failed to prove mens rea on their part in transporting fertiliser bags from Madhya Pradesh to Maharashtra
557E Swastik Oil Industries vs State 1978 19 Guj
Law Reporter 1117 approved
Nathu Lal vs State of Madhya Pradesh AIR 1966 SC 43 referred to 2
In the commission of an offence there are four stages viz intention preparation attempt and execution
The first two stages would not attract culpability but the third and fourth stages would certainly attract culpability
557G 21
The respondents in each case were actually caught in the act of exporting fertiliser bags without a permit therefore from Madhya Pradesh to Maharashtra
If the inter ception had not taken place at the Sales Tax Barrier the export would have become a completed act and the fertiliser bags would have been successfully taken to Maharashtra State in contravention of the Fertiliser Movement Control Order 1973
It was not therefore a case of mere preparation viz the resport 551 dents trying to procure fertiliser bags from someone or trying to engage a lorry for taking those bags to Maharash tra
They were cases where the bags had been procured and were being taken in the lorries under cover of sales in voices for being delivered to the consignees and the lorries would have entered the Maharashtra border but for their interception at the Sales Tax barrier
Surely no one can say that the respondents were taking the lorries with ferti liser bags in them for innocuous purposes or for more thrill or amusement and that they would have stopped well ahead of the border and taken back the lorries and the fertiliser bags to the initial place of despatch or to some other place in Madhya Pradesh State itself
The acts of transportation of the fertiliser hags in the trucks in question by the respondents were therefore clearly cases of attempted unlaw ful export of the fertiliser bags and not cases of mere preparation alone
557H 558A B C D Section 7 of the was again amended in 1974 and the words whether knowingly intentionally or otherwise were deleted and a new provision in section 10 of the Act was added
The effect of this amendment is that a presumption of guilty mind on the part of the accused in respect of offences under the Act includ ing Sec 7 would arise and it would be open to the accused to rebut the same