etition Criminal No 8061 of 1981
Under article 32 of the Constitution of India Dr NM Ghatate for the Petitioner
OP Rana and RN Poddar for the Respondent
The Judgment of the Court was delivered by SEN J
By this petition under article 32 of the Constitution one Ashok Kumar seeks issuance of a writ of habeas corpus challenging the validity of the order of detention dated August 11 1981 passed by the Commissioner of Police Delhi under sub section
2 of section 3 of the for short the Act  on being satisfied that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of 710 public order
The main issue is as to whether the activities of the petitioner fall within the realm of public order  or law and order 
It appears that on August 12 1981 while the detenu was held at the Central Jail Tihar in connection with some of the offences committed by him he was served with the aforesaid order of detention passed a day earlier ie on August 14 1981
Two days later ie on August 14 1981 he was furnished with the grounds of detention as well as with copies of documents and statements relied upon in the grounds of detention
It seems that the Commissioner of Police forthwith made a report to the Administrator about the passing of the detention order together with the grounds of detention and all other particulars bearing on the same
The said report and the other particulars were considered by the Administrator and he by his order dated August 20 1981 approved of the detention order under sub section
4 and sent a report to the Central Government as required under sub section
5 of section 3 of the Act
The Administrator by his order dated August 20 1981 informed the petitioner that his order of detention had been approved by him and that he had a right to make a representation
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for the detention of the petitioner and accordingly the Administrator by his order dated September 15 1981 confirmed the aforesaid detention order under sub section
1 of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention ie wef August 12 1981
In support of the petition four points are canvassed
First of these is that there was a denial of the constitutional imperatives of article 225 read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu the earliest opportunity of making a representation against the order of detention inasmuch as there was unexplained delay of two days in furnishing the grounds of detention secondly there was a failure on the part of the Commission of Police as well as the Administrator to apply their mind and specify the period of detention while making the order of detention under sub section
2 of section 3 of the Act and therefore the impugned order of detention is invalid thirdly the grounds of detention served on the detenu are not connected with maintenance of public order but they relate to maintenance of law and order and fourthly the facts as set out in the grounds of detention did not 711 furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further they were vague irrelevant and lacking in particulars
We are afraid none of these contentions can prevail
There is no substance in the contention that there was denial of the constitutional imperatives of article 225 read with section 8 of the Act because there was unexplained delay of two days in furnishing the grounds of detention and it was imperative that the detenu should be furnished with the grounds of detention along with the order of detention
It is said that delay even for a day if it remains unexplained  means deprivation of liberty guaranteed under article 21 and this is impermissible except according to procedure established by law
The contention that the constitutional safeguards in article 225 were not complied with merely because the detenu was not simultaneously  furnished with the grounds of detention along with the order of detention and was thereby deprived of the right of being afforded the earliest opportunity of making a representation against the order of detention  as enjoined by article 225 read with with section 8 of the Act cannot be accepted
The language of article 225 itself provides that where a 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
Sub section
1 of section 8 of the Act which is in conformity with article 225 provides that when a person is detained in pursuance of a detention order made under sub section
1 or sub section
2 of section 3 of the Act the authority making the order shall as soon as may be but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention communicate to him the grounds on which the order has been made
Parliament has thus by law defined the words as soon as may be occurring in article 225 as meaning normally a period of five days
The matter is no longer res integra
Chandrachud CJ in AK Roy vs Union of India observed  This argument overlooks that the primary requirement of section 81 is that the authority making the order of 712 detention shall communicate the grounds of detention to the detenu as soon as may be
The normal rule therefore is that the grounds of detention must be communicated to the detenu without avoidable delay
It is only in order to meet the practical exigencies of administrative affairs that the detaining authority is permitted to communicate the grounds of detention not later than five days ordinarily and not later than 10 days if there are exceptional circumstances
If there are any such circumstances the detaining authority is required by section 81 to record its reason in writing
We do not think that this provision is open to any objection
 Under our constitutional system therefore it is not the law that no person shall be detained in pursuance of an order made under a law providing for preventive detention without being informed of the grounds for such detention
The law is that the detaining authority must as soon as may be ie as soon as practicable communicate to the detenu the grounds on which the order of detention has been made
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case
Admittedly the detenu here was served with the grounds of detention within a period of two days ie within the period allowed by section 8 of the Act and that was as soon as practicable
This is not a case where the detenu alleges that his detention was for non existent grounds
Nor does he attribute any mala fides on the part of the detaining authority in making the order
The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later
We find it difficult to conceive of any discernible principle for the second submission
It is submitted by learned counsel appearing for the detenu that the right to make a representation under article 225 of the Constitution read with section 8 of the Act means what it implies the right to make an effective representation
It is urged that unless the period of detention is specified there can be no meaningful representation inasmuch as the detenu had not only the right of making a representation against the order for his detention but also the period of detention
On this hypothesis the contention is that the impugned order of detention is rendered invalid
The 713 entire submission rests on the following observations of Chandrachud CJ in AK Roys case supra  We should have thought that it would have been wrong to fix a minimum period of detention regardless of the nature and seriousness of the grounds of detention
The fact that a person can be detained for the maximum period of 12 months does not place upon the detaining authority the obligation to direct that he shall be detained for the maximum period
The detaining authority can always exercise its discretion regarding the length of the period of detention
 The majority decision in AK Roys case supra as pronounced by Chandrachud CJ is not an authority for the proposition that there is a duty cast on the detaining authority while making an order of detention under sub section
1 or 2 to specify the period of detention
The learned Chief Justice made the aforesaid observations while repelling the contention advanced by learned counsel for the petitioner that section 13 of the Act was violative of the fundamental right guaranteed under article 21 read with article 14 as it results in arbitrariness in governmental action in the matter of life and liberty of a citizen
The challenge to the validity of section 13 of the Act was that it provides for a uniform period of detention of 12 months in all cases regardless of the nature and seriousness of the grounds on the basis of which the order of detention is passed
In repelling the contention the learned Chief Justice observed that there was no substance in that grievance because any law of preventive detention has to provide for the maximum period of detention just as any punitive law like the Penal Code has to provide for the maximum sentence which can be imposed for any offence
In upholding the validity of section 13 the learned Chief Justice observed  We should have thought that it would have been wrong to fix a minimum period of detention regardless of the grounds of detention
And then went on to say  It must also be mentioned that under the proviso to section 13 the appropriate government has the power to revoke or modify the order of detention at any earlier point of time
 714 It would thus be clear that the Court was there concerned with the validity of section 13 of the Act and it is not proper to build up an argument or by reading out of context just a sentence or two
There is no doubt in our mind that the Court has not laid down that the detaining authority making an order of detention under sub section
1 or sub section
2 of section 3 of the Act or the authority approving of the same must specify the period of detention in the order
It is plain from a reading of section 3 of the Act that there is an obvious fallacy underlying the submission that the detaining authority had the duty to specify the period of detention
It will be noticed that sub section
1 of section 3 stops with the words make an order directing that such person be detained and does not go further and prescribe that the detaining authority shall also specify the period of detention
Otherwise there should have been the following words added at the end of this sub section and shall specify the period of such detention
What is true of sub section
1 of section 3 is also true of sub section
2 thereof
It is not permissible for the courts by a process of judicial construction to alter or vary the terms of a section
Under the scheme of the Act the period of detention must necessarily vary according to the exigencies of each case ie the nature of the prejudicial activity complained of
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act
The most crucial question on which the decision must turn is whether the activities of the detenu fall within the domain of public order  or law and order 
The contention is that the grounds of detention served on the detenu are not connected with maintenance of public order  but they relate to maintenance of law and order  and therefore the impugned order of detention purported to have been passed by the detaining authority in exercise of his powers under sub section 2 of section 3 of the Act is liable to be struck down
It is urged that the facts alleged in the grounds of detention tend to show that he is engaged in criminal activities and it is an apparent nullification of the judicial process if in every case where there is a failure of the prosecution to proceed with a trial or where the case ends with an order of discharge or acquittal the Executive could fall back on its power of detention because the verdict of the Court goes against it
Put differently the contention is that resort cannot be had to the Act to direct preventive detention of a person under sub section
2 of section 3 of the Act for the Act is not a law for the 715 preventive detention of gangsters and notorious bad characters
The detention here it is said is not so much for the maintenance of public order but as a measure for the past criminal activities of the detenu
It is further urged that the grounds of detention have no rational connection with the object mentioned in the Act for which a person may be detained
Further that there is no sufficient nexus between the preventive action and the past activities of the detenu which are not proximate in point of time but are too remote
There is no substance in any of these contentions advanced
The true distinction between the areas of public order  and law and order  lies not in the nature or quality of the Act but in the degree and extent of its reach upon society
The distinction between the two concepts of law and order  and public order  is a fine one but this does not mean that there can be no overlapping
Acts similar in nature but committed in different contexts and circumstances might cause different reactions
In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order
The act by itself therefore is not determinant of its own gravity
It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order
That test is clearly fulfilled in the facts and circumstances of the present case
Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires
Preventive detention is devised to afford protection to society
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence
It follows that any preventive measures even if they involve some restraint or hardship upon individuals do not partake in any way of the nature of punishment but are taken by way of precaution to prevent mischief to the State
It is a matter of grave concern that in urbanised areas like cities and towns and particularly in the metropolitan city of Delhi the law and order situation is worsening everyday and the use of knives and firearms has given rise to a new violence
There is a constant struggle to control the criminal activities of the persons engaged in such organised crimes for the maintenance of public 716 order
It is difficult to appreciate the argument that the detention here is with a view to punish the detenu for a series of crimes that he is alleged to have committed but which the law enforcement agency is not able to substantiate
There is no reason why the Executive cannot take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose
The prejudicial activities of the detenu leading to public disorder as revealed in the grounds of detention consist of a consistent course of criminal record
Although the criminal activities of the detenu in the past pertained mostly to breaches of law and order they have now taken a turn for the worse
From the facts alleged it appears that the detenu has taken to a life of crime and become a notorious character
His main activities are theft robbery and snatching of ornaments by the use of knives and firearms
The area of operation is limited to South Delhi such as Greater Kailash Kalkaji and Lajpat Nagar
A perusal of the FIRs shows that the petitioner is a person of desperate and dangerous character
This is not a case of a single activity directed against a single individuals
There have been a series of criminal activities on the part of the detenu and his associates during a span of four years which have made him a menace to the society
It is true that they are facing trial or the matters are still under investigation
That only shows that they are such dangerous characters that people are afraid of giving evidence against them
To bring out the gravity of the crimes committed by the detenu we would just mention four instances
On November 19 1979 Smt
Anupam Chander of B 510 Safdarjang Enclave reported that she was robbed of her gold chain near East of Kailash and on investigation the petitioner along with his associates was arrested for this high handed robbery and there is a case registered against them which is pending trial
Just a month after ie on December 11 1979 one Munna of Lajpat Nagar reported that he was robbed of his wrist watch and cash by three persons who were travelling in a three wheeler
On investigation the petitioner and his associate Rajendra Kumar were arrested and the police recovered the stolen property
They are facing trial in these cases
On July 18 1981 717 Kumari G Radha reported that she had been robbed of her gold chain and a pair of tops in Lajpat Nagar at the point of knife by persons in the age group of 2122 years
On investigation the petitioner and his associate Rajendra Kumar were arrested and the entire booty was recovered
The case is still under investigation
It appears that the detenu was enlarged on bail and two days after ie on July 20 1981 he was again arrested on the report of Smt
Ozha that she was robbed of her gold chain near Shanti Bazar Khokha Market Lajpat Nagar by two persons in the age group of 21 25 years at the point of knife
On investigation the petitioner and his companion Rajendra Kumar were arrested and she identified them to be the culprits and the booty was recovered from them
The case is under investigation
There have been similar incidents of a like nature
What essentially is a problem relating to law and order may due to sudden sporadic and intermittent acts of physical violence on innocent victims in the metropolitan city of Delhi result in serious public disorder
It is the length magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguishes it as an act affecting public order from that concerning law and order
Some offences primarily injure specific individuals and only secondarily the public interest while others directly injure the public interest and affect individuals only remotely
The question is of the survival of the society and the problem is the method of control
Whenever there is an armed hold up by gangsters in an exclusive residential area like Greater Kailash Kalkaji or Lajpat Nagar and persons are deprived of their belongings like a car wrist watch or cash or ladies relieved of their gold chains or ornaments at the point of a knife or revolver they become victims of organised crime
There is very little that the police can do about it except to keep a constant vigil over the movements of such persons
The particular acts enumerated in the grounds of detention clearly show that the activities of the detenu cover a wide field and fall within the contours of the concept of public order
The contention that the facts alleged in the grounds of detention did not furnish sufficient nexus for forming the subjective satisfaction of the detaining authority and further that they were vague irrelevant or lacking in particulars cannot be accepted
A bare perusal of the grounds of detention along with the particulars 718 of the 36 cases furnished in the accompanying chart shows that the grounds furnished were not vague or irrelevant or lacking in particulars or were not adequate or sufficient for the subjective satisfaction of the detaining authority
In the result the petition must fail and is dismissed
NVK Petition dismissed


Summary:
The petitioner who was held at the Central Jail in connection with some of the offences committed by him was served with an order of detention passed by the Commissioner of Police under sub section 2 of section 3 of the  stating that his detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public order Two days later he was served with the grounds of detention and copies of documents and statements relied upon in the grounds of detention
The Commissioner made a report to the Administrator about the passing of the detention order together with the grounds of detention
The Administrator approved the detention order and sent the report to the Central Government and also informed the petitioner that the order of detention had been approved by him and that he had a right to make a representation
The case of the petitioner was placed before the Advisory Board who was of the opinion that there was sufficient cause for his detention
The Administrator confirmed the detention order under sub section 1 of section 12 and further directed under section 13 of the Act that the petitioner be detained for a period of 12 months from the date of his detention
In his petition under Article 32 of the Constitution the petitioner contended that 1 the unexplained delay of two days in furnishing the grounds of detention was a denial of the constitutional imperatives of article 225 read with section 8 of the Act which cast a duty on the detaining authority to afford the detenu the earliest opportunity of making a representation against the order of detention 2 there was a failure on the part of the Commissioner as well as the 708 Administrator to apply their minds and specify the period of detention while making the order of detention under sub section 2 of section 3 of the Act and 3 the grounds of detention served were not connected with maintenance of public order but relate to maintenance of law and order
Dismissing the petition  HELD 1
i Sub section 1 of section 8 of the Act which is in conformity with Article 225 provides that where a person is detained in pursuance of a detention order made under sub section 1 or sub section 2 of section 3 of the Act the authority making the order shall as soon as may be but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention communicate to him the grounds on which the order has been made
Parliament has thus by law defined the words as soon as may be occurring in article 225 as meaning normally a period of five days
711 F ii The law is that the detaining authority must as soon as may be ie as soon as practicable communicate to the detenu the grounds on which the order of detention has been made
That period has been specified by section 8 of the Act to mean a period ranging from five to ten days depending upon the facts and circumstances of each case
712 D In the instant case the petitioner was served with the grounds of detention within a period of two days ie within the period allowed by section 8 of the Act and that was as soon as practicable
 The order of detention is therefore not rendered invalid merely because the grounds of detention were furnished two days later
712 E F iii In AK Roy vs Union of India 1982 1 SCC 271 this Court has not laid down that the detaining authority making an order of detention under sub section 1 or sub section 2 of section 3 of the Act or the authority approving of the same must specify the period of detention in the order
714 B 2
Under the scheme of the Act the period of detention must necessarily vary according to the exigencies of each case ie the nature of the prejudicial activity complained of
It is not that the period of detention must in all circumstances extend to the maximum period of 12 months as laid down in section 13 of the Act
714 E 3i The true distinction between the areas of public order  and law and order  lies not in the nature or quality of the act but in the degree and extent of its reach upon society
The distinction between the two concepts of law and order  and public order  is a fine one but this does not mean that there can be no overlapping
Acts similar in nature but committed in different contexts and circumstances might cause different reactions
In one case it might affect specific individuals only and therefore touch the problem of law and order  while in another it might affect public order 
The act by itself therefore is not determinant of its own gravity
It is the potentiality of the act to disturb the even 709 tempo of the life of the community which make it prejudicial to the maintenance of public order  715 C E ii Preventive detention is devised to afford protection to society
The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing
Justification for such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence
It follows that any preventive measures even if they involve some restraint or hardship upon individuals do not partake in any way of the nature of punishment but are taken by way of precaution to prevent mischief to the State
715 F G iii The Executive can take recourse to its power of preventive detention in those cases where the Court is genuinely satisfied that no prosecution could possibly succeed against the detenu because he is a dangerous person who has overawed witnesses or against whom no one is prepared to depose
716 B iv What essentially is a problem relating to law and order  may due to sudden sporadic and intermittent acts of physical violence on innocent victims in a metropolitan city result in serious public disorder 
It is the length magnitude and intensity of the terror wave unleashed by a particular act of violence creating disorder that distinguished it as an act affecting public order  from that concerning law and order 
Some offences primarily injure specific individuals and only secondarily the public interest while others directly injure the public interest and affect individuals only remotely
717 D E In the instant case the particular acts enumerated in the grounds of detention clearly shows that the activities of the detenu cover a wide field and fall within the contours of the concept of public order 
717 G