AL APPELLATE JURISDICTION Criminal Appeal No 450 of 1987 From the Judgment and order dated 2631987 of the Allahabad High Court in Habeas Corpus Petition No 17849 of 1986
DK Garg for the Appellant
Dalveer Bhandari for the Respondents
The Judgment of the Court was delivered by BC RAY J
Special leave granted
Arguments heard
This appeal by special leave is directed against the judgment and order of the High Court of Allahabad dated 26th March 1987 in Habeas Corpus Petition No 17849 of 1986 dismissing the writ petition and confirming the order of detention passed against the appellant by the District Magistrate Allahabad
The respondent No 2 District Magistrate Allahabad clamped upon the appellant an order of detention under section 32 of the and the appellant was detained at Central Jail Naini on October 10 1986
On the same day the grounds of detention were served on the appellant
Two grounds of detention mentioned in the grounds of detention are stated hereinbelow 1 That the appellant on 2101986 threatened the shopkeepers of Khalasi Line locality in order to extort money anc was saying that appellant could not come for the last auction because the police were present on that occasion and that the shopkeepers bad not given the appellant the money received in the above auction
Further that the shopkeepers should collect money and give it to the appellant or else the appellant would shoot all of them
As a result of this the place was terror stricken and the shops and houses closed down
A report of this incident was made by the picket employed at police station Kydganj ie report No 38 time 20
10 dated 2 1086
This was investigated by Dev Shankar SI Of police station Kydganj and the details written in report No 2 time 0030 dated 3
1086 in the general diary as Case crime No 24886 Section 307 IPC and case crime No24986 Section 45 Explosives Act Police Station Kydganj Allahabad
131 2 On 3 10
1986 the appellant armed with illegal bombs went towards Uttam Talkies
Kydganj Allahabad with the intention of committing serious offence
On information being received the police went to arrest the appellant
That the appellant with the intention to kill lobbed a bomb but the police party escaped it by a hair s breadth and the bomb exploded
As a result of this there was a stampede in the public the doors and windows of the houses and shops closed down the traffic stopped and the people were terror stricken
The police arrested appellant on the spot and recovered 3 illegal bombs from the appellant
The appellant has also been supplied with a copy of a confidential letter written by the Superintendent of Police Allahabad to District Magistrate Allahabad dated 9101986
The said letter was written by the Superintendent of Police on the recommendation of the Station officer Kydganj Allahabad on 5
The appellant has also been supplied with the copy of the report No 38 in which it is alleged that the appellant threatened the shopkeepers of Khalasi Line in an attempt to extort money
He was also supplied with the copy of the report which was registered as case crime No 248 of 1986 under section 307 IPC and case crime No 249 of 1986 under section 45 of the Explosives Act
The appellant made representation against the grounds of detention before the authorities concerned but his representation was rejected and the order of detention was confirmed
E The appellant challenged the order of detention by a writ of Habeas Corpus before the High Court of Allahabad on the ground inter alia that the grounds of detention are absolutely vague and there is complete non application of mind by the detaining authority in coming to the subjective satisfaction that the order of detention passed on the appelant while he was in custody is wholly arbitrary and unwarranted and the two cases disclosed in the grounds of detention relate to law and order problem and not to the disturbance of public order
The criminal proceedings pending in respect of the case should not have been by passed by taking recourse to the order of detention of the appellant who is already in custody and there was no likelihood nor any possibility of his indulging in activities prejudicial to the maintenance of public order as the appellant has not made any application for bail in the said case
The detention order has therefore been assailed as illegal and bad and so the same is invalid in law
The High Court after hearing the appellant by its judgment and H 132 order dated 26th March 1987 dismissed the writ petition No 17849 of 1986 holding that the order of detention passed by the detaining authority while the appellant was in jail could not be held to be illegal in the facts and circumstances of the case
Aggrieved by the said order the instant appeal by special leave was filed in this court
An affidavit in counter verified by one OP Ojha Station officer Police Station Kydganj Allahabad has been filed
It has been stated in paragraph 4iii of the counter affidavit that the appellant s history starts from 1955 and he involved himself in a large number of criminal cases
His name in the history sheet was included by the police
It has been further stated that out of fear the shopkeepers of the village dare not disclose their names and the people of Khalasi Line dare not depose against the appellant since he is a goonda of the locality and people are afraid of him
It has been further stated that this is the reason for non appearance of the shopkeepers and others as witnesses
The first incident dated October 2 1986 was registered in GD No 38 of the said date and the second incident which occurred on October 3 1986 was registered as case crime No 368 of 1986 under section 302307120 B IPC
It has been further stated that these two incidents created terror to the shopkeepers and the people of the locality
This resulted in a great problem of public order
It has been stated further that after being convinced of the gravity of the situation created by the appellant and his accomplice the District Magistrate after fully satisfying himself about the state of affairs passed the order of detention of the appellant
It has also been stated that the detention order was passed mainly on the basis of two criminal acts committed by the appellant on October 2 and 3 1986
Before passing the detention order the District Magistrate fully satisfied himself of all the conditions for passing a detention order under the 
It has also been stated that it is wrong that the allegations made in the reports dated October 2 and 3 1986 are false
The District Magistrate fully satisfied himself after perusing all the records before he passed the order of detention against the appellant
The cases which have been reported on October 2 and 3 1986 are pending trial before the Court
It has also been stated that the order of detention was passed by the District Magistrate on the basis of the information gathered by him from the reports submitted by the police
It has also been stated that the appellant has already applied for bail in crime case No 24886 under section 307 IPC and crime case No 24986 under section 45 of Explosives Act
Notices of bail applications in connection with these 133 two cases were served on the State Government prior to the passing of the detention order by the District Magistrate
The District Magistrate passed the detention order dated October 10 1986 when the appellant was already in jail on the apprehension that the appellant is likely to be released on bail in the near future and that if the appellant is bailed out the public order problem will become worse
The detention order was passed with the object of preventing the appellant from acting in a manner prejudicial to the maintenance of public order
Hence the detention order is legal in all respects
The history sheet of crime cases against the appellant has been annexed to the said affidavit
Before proceeding to consider the case on merits it is relevant to quote the provisions of Section 3 sub section 2 of National security Act 1980
32The Central Government or the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State
Or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do make an order directing that such person be detained
On a plain reading of Section 32 of the said Act it becomes clear that the Central Government or the State Government or the District Magistrate authorised by the State Government in writing may pass an order of detention against a person on being satisfied that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary to make an order directing that such person be detained
In the instant case the order of detention has been made by respondent No 2 District Magistrate on the basis of two criminal cases in respect of two incidents which occurred on October 2 and 3 1986
So far as the case being GD No 38 is concerned allegation was that the appellant was threatening the traders of Khalasi Line who participated in the auction at the fort and he was saying that he could not collect money from them on the last occasion because the police were posted there but in case they did not collect money and give it to him he would shoot all of them
Because of this terror the shopkeeprs closed the doors and windows of their shops and houses
The report of 134 this incident was made by the picket employed at police station Kydganj
It appears from this report that there are no particulars about the shopkeepers who have been terrorised and threatened for payment of money nor the names of any of the witnesses in whose presence the threat or terror was given and money was demanded are mentioned at all
The report is absolutely vague and it is not possible for the detenu to give an effective representation against the aforesaid ground which is one of the constitutional requirement enjoined in Article 225 of the Constitution of India
The second ground which leads to crime case No 24886 under section 307 IPC and case crime No 249 under section 45 of Explosives Act and which occurred on October 3 1986 at about 10 AM
On the complaint of Sub Inspector Yatendra Singh through special court Allahabad also does not disclose any particulars as to the shopkeepers in whose presence the alleged bombs were thrown by the appellant and his associate and who were terrified and panic stricken and put down their shutters nor the names of any of the witnesses have been mentiond in respect of the said incident
The meaning of the word public order  has been determined by this Court in the case of Kanu Biswas vs State of West Bengal
1972 3 SSC 83 1
In this case it has been held that 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
Public order is what the French call order publique and is something more than ordinary maintenance of law and order
In the case of Haradhan Saha vs The State of West Bengal and others 19751 3 SCC 198 this Court has observed that the following principles emerge from the judicial decisions First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act
Second the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention
135 Third where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order
Fourth the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order
Fifth the order of detention is a precautionary measure
It is based on a reasonable prognosis of the future behaviour of a person based on his part conduct in the light of the surrounding circumstances
This has been followed in Kanchanlal Meneklal Chokshi vs State of Gujarat and others   wherein it has been observed that The ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention
But the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention
Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad
However the failure of the detaining authority to consider the possibility of launching a criminal prosecution may in the circumstances of a case lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention
Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose the detaining authority must satisfy the Court that question too was borne in mind before the order of detention was made
If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu
 136 In the case of Dr Ram Manohar Lohia vs State of Bihar and others 1966 l SCR 709 it has been observed by this Court that 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
There are three concepts according to the learned Judge Hidayatullah J ie  law and order   public order and security of the State  
It has been observed that to appreciate the scope and extent of each of them one should imagine three concentric circles
The largest of them represented law and order next represented public order and the smallest represented the security of the State
An act might affect law and order but not public order just as an act might affect public order but not the security of the State   As observed in the case of Arun Ghosh vs State of West Bengal Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality
Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility
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
Take for instance a man stabs another
People may be shocked and even disturbed but the life of the community keeps moving at an even tempo however much one may dislike the act
Take another case of a town where there is communal tension
A man stabs a member of the other community
This is an act of a very different sort
Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order
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
 This has been followed in the case of Nagendra Nath Mondal vs 137 State of West Bengal  and Nand Lal Roy alias Nonda Dulal Roy vs State of West Bengal  Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the society
If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and or the even tempo of the community that it becomes a breach of the public order
In the case of SK Kedar vs State of West Bengal this Court has observed that  The question whether a person 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 one of degree and the extent of the reach of the act upon the society
An act by itself is not determinative 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
Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality
It is the degree of disturbance upon the life of the community which determines whether the disturbance amounts only to a breach of the law and order This Court has further observed in the case of Ashok Kumar vs Delhi Administration  while dealing with the distinction between public order  and law and order  to which one of us is a party that The true distinction between the areas of public order and law and order  lies not in the nature of 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
The act by itself therefore is not determinant of its own gravity
It is the potentiality of the 138 act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order
 On a conspectus of all these decisions it has been observed by this Court in the case of State of UP vs Hari Shankar Tewari   that conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order
One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle
An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquility
When communal tension is high an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community
An order of detention made in such a situation has to take note of the potentiality of the act objected to
Thus whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community it will be an act which will affect public order
In the present case so far as the first incident which occurred on 2
101986 is concerned the ground is vague in as much as neither the names of the witnesses in whose presence the threat was given and the incident occurred have been mentioned
As regards the second incident which occurred on 3
101986 case crime No 248 86 under Section 307 IPC and No 24986 under Section 45 Explosives Act respectively are pending trial
It is also pertinent to remember in this connection that a case crime No 200 of 1986 under section 323504506426 IPC read with section 2 3 of the UP Gangsters and Anti Social Activities Act No 4 of 1986 by the police of the police station Naini a copy of which was annexed as annexure I to this appeal was registered against the appellant
The said case was challenged by an application under section 482 Cr
PC in the High Court
The said application was admitted on 261986 and it is pending as Criminal Misc
Application No 6638 of 1986
The High Court while admitting the case had granted stay of arrest of the appellant
Furthermore the appellant was taken in custody and he was in jail as an under trial prisoner on October 10
1986 when the impugned order of detention was clamped upon him by the detaining authority the respondent No 2
The appellant has 139 stated in his appeal before this Court that till date he had not applied for bail in case crime No 248 1986 under section 307 IPC and case crime No 249 1986 under section 45 of the Explosives Act as well as the case registered in report No 38 dated October 2 1986 at police station Kydganj
The question is whether there is possibility of the detaining authority to be satisfied that the appellant is likely to indulge in activities prejudicial to the maintenance of public order as there is no likelihood of his being released from jail custody immediately
This specific question arose in the case of Masood Alam vs Union of India AIR 1973 SC 897 wherein it has been observed that The order of detention served upon the detenu while he was in jail is not invalid rendering the petitioner s detention as void
There is no legal bar in serving an order of detention on a person who is in jail custody if he is likely to be released soon thereafter and there is relevant material on which the detaining authority is satisfied that if freed the person concerned is likely to indulge in activities prejudicial to the security of the state or maintenance of public order
 In the case of Rameshwar Shaw vs District Magistrate Burdwan  Anr  1 it has been observed that The first stage in the process is to examine the material adduced against a person to show either from his conduct or his antecedent history that he has been acting in a prejudicial manner
If the said material appears satisfactory to the authority then the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he is not prevented from doing so by an order of detention
If this question is answered against the petitioner then the detention order can be properly made
It is obvious that before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner the authority has to be satisfied that if the person is not detained he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time
If a person is already in jail custody how can it rationally be postulated that if he is not detained h would act in a prejudicial manner At the point of time when an order of detention is going to be 140 served on a person it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention
The satisfaction that it is necessary to detain a person for the purpose of preventing him from acting in a prejudicial manner is thus the basis of the order under section 31a and this basis is clearly absent in the case of the petitioner
 In the instant case there is nothing to show that in consideration of his previous conduct and acts there
is a likelihood of the appellant indulging in activities prejudicial to the maintenance of public order if he is set free andor released from custody
It has been observed in the case of Merugu Satyanarayana etc
vs State of Andhra Pradesh and others   by this Court that before making an order of detention in respect of a person already confined to jail it must be present to the mind of the detaining authority that keeping in view the fact the person is already indetention a preventive detention order is still necessary
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated
But as stated by this Court it will depend on the facts and circumstances of each case
It has further been observed as follows We are completely at a loss to understand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police we would not be far from a Police State
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases if the conditions set out in sub section 3 of section 3 are satisfied and the notification is issued by the State Government to that effect this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as 141 District Magistrate or Commissioner of Police
In this case the District Magistrate the detaining authority has not chosen to file his affidavit
The affidavit in opposition is filed by a Sub Inspector of Police
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the decision of the District Magistrate for making the detention order From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police
 In a recent case of Ramesh Yadav vs District Magistrate Etah and others AIR 1986 SC 3 15 it has been observed that It is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area
If the apprehension of the detaining authority was true the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised
Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the should not ordinarily be passed
We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention
The impugned order therefore has to be quashed
In the instant case the detaining authority respondent No 2 has not come forward to file an affidavit stating whether he has taken into consideration the fact that the appellant was already in judicial custody and on considering his past activities he was subjectively satisfied that if set free or released from jail custody on bail there was likelihood of the appellant indulging in criminal activities endangering public order
On the other hand the Station officer of the Police Station Kydganj Shri OP Ojha has filed a counter stating that the District Magistrate passed the impugned detention order when the appellant was already in jail on the apprehension that the appellant is likely to be released on 142 bail in the near future and if the appellant is bailed out the public order problem will become worse
This clearly goes to show that the Sub Inspector has arrogated to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the Act
The District Magistrate the detaining authority in this case has not chosen to file his affidavit
The affidavit in opposition filed by the Station officer of Police implies that he has access to the file of the District Magistrate or he influenced the decision of the District Magistrate for making the detention order
This is also clear from the confidential report submitted by the Senior Superintendent of Police Allahabad to the District Magistrate Allahabad as well as from the report of the Sub Inspector of Police annexed with the said report wherein it has been specifically stated that it was apprehended that the appellant Gulab Mehra who is at present in Naini jail and who has applied for bail if enlarged on bail public order will be disturbed
There is nothing to show that there was awareness in the mind of the District Magistrate the detaining authority of the fact that the appellant was in jail at the time of clamping of the order of detention and the detaining authority was satisfied in considering his antecedents and previous criminal acts that there is likelihood of his indulging in criminal activities jeopardizing public order if he is enlarged on bail and that there is every likelihood that the appellant will be released on bail within a short time
On this ground alone the order of detention is invalid
It may also be stated in this connection that the respondents can very well oppose the bail application when it comes for hearing and if at all the appellant is released on bail the respondents are not without any remedy
They can also file application in revision for cancellation of the bail application
In such circumstances we cannot but hold that the passing of the order of detention of the appellant who is already in custody is fully bad and as such the same is invalid in law
We have already said hereinbefore that the respondents can very well proceed with the criminal case under section 307 of IPC execute it against the appellant and can get him punished if the case is approved beyond doubt against the appellant
It is pertinent to mention in this connection the case of Abdul Gaffer vs State of West Bengal AIR 1975 SC 1496 wherein the order of detention was passed in respect of three cases registered against the petitioner
These are as follows 1 The petitioner along with his associates on 1871971 being armed with deadly weapons like daggers etc
committed thefts in respect of DO plates from the railway yard and on being challenged pelted stones causing injury to the RPF party
The RPF party had 143 to open fire but the petitioner and his associates fled away
A 2 On 25111971 the petitioner along with his associates being armed with deadly weapons committed theft in respect of batteries from empty rakes standing on the railway track
Being challenged by the RPF party the petitioner and his associates pelted stones
The RPF party fired two rounds whereby one of his associates was injured and arrested at the spot
3 On 202
1972 at Howrah Goods Yard near Oriapara Quarters the petitioner along with his associates being armed with deadly weapons viz bombs iron rods etc
committed theft of wheat bags from a wagon and on being challenged by the RPF party the petitioner and his associates pelted stones and hurled bombs
As a result of this act train services on Howrah Burdwan line was suspended for a considerable period
Three cases were registered in respect of these offences and order of detention was made by the District Magistrate
The detaining authority however did not file an affidavit but his successor in office in response to Rule Nisi issued by the High Court filed the counter
It has been observed firstly that the detaining authority has not filed the counter affidavit and the return filed in his place by his successor in office does not satisfactorily explain why the prosecution of the petitioner for the substantive offence in respect of which he was arrested and named in the FIR was not proceeded with
According to the counsel the so called explanation given in the counter that the witnesses being afraid were not coming forward to give evidence was too ridiculous to be believed by any reasonable person
The Sub Inspector of Police who made the panchnama could certainly not be afraid of giving evidence
The other material witnesses who could give evidence were the members of the RPF party
It is a para police organisation
The bald but sweeping allegation in the counter that these witnesses were also afraid of giving evidence in court against the petitioner is a version which is too incredulous to be swallowed even by an ultra credulous person without straining his credulity to the utmost
The order of detention was therefore held invalid
In the instant case the police officers who withnessed the hurling of bombs and the Sub Inspector of Police who recorded the FIR can come forward to give the evidence
Therefore in such circumstances the open statement made in the affidavit of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming H 144 forward to give evidence is wholly incredulous and it cannot be accepted
The prosecution of the appellant for the substantive offences can be properly proceeded with in this case In the case of Sudhir Kumar Saha vs Commissioner of Police Calcutta  Anr  the petitioner along with his associates committed various acts of crime on three occasions
On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them
On the other two occasions he attacked the people of another locality by hurling bomes at them
It was held that the incidents were not interlinked and could not have prejudiced the maintenance of public order
On considering these decisions we are constrained to hold that the clamping of the order of detention is not in accordance with the provision of the Act
Furthermore the history sheet does not at all link to the proximity of the two incidents on the basis of which the o order of detention was made
It has been vehemently urged before us by the learned counsel appearing for the appellant that in none of the cases mentioned in the history sheet the appellant has been convicted and moreover these cases related to a period much earlier than the period in which the two cases have occurred
It has also been submitted in this connection by the learned counsel for the appellant that the appellant had not been convicted in any of the cases and the submission of the Sub Inspector of Police that the witnesses are afraid of disclosing their names and coming forward to give evidence is wholly incorrect and false in as much as witnesses in fact gave the evidence in a criminal case which ended in acquittal
It has also been submitted by the learned counsel that the shopkeepers of the locality where the alleged hurling of bombs took place have made an application in this case that no such incident occurred on the said dates
In the premises aforesaid we hold that the impugned order of detention is illegal and invalid and we allow the appeal setting aside the judgment and order of the High Court without any order as to costs
SL Appeal allowed


Summary:
 The appellant was arrested and detained on 21st March 1987 pursuant to an order of detention made under section 31 of the 
He was served with the grounds of detention by the Detaining Authority
In the grounds it was stated that the appellant had been indulging in illegal sale and purchase of foreign currency and also in the sale and purchase of gold of foreign origin on a large scale and that in three premises connected with the appellant search was carried out on 10th December 1986 under section 33 of the Foreign Exchange Regulation Act 1973
On 6th April 1987 the appellant made two representations one to the Detaining Authority the second respondent and another to the Central Government the first respondent
In these representations the appellant stated that he had no concern whatsoever as regards the premises where search was carried out and US  and primary gold were recovered as the said premises did not belong to him but belonged to his sister in law and that if the relevant documents on the basis of which the detaining authority came to its subjective satisfaction are not given it would not be possible to make any effective representation
On 2nd April 1987 the appellant also made a representation before the Advisory Board
The appellant was produced before the Advisory Board on 29th April 1987 and the Board heard the appellant in respect of his representation
Me received a communication dated 7th May 1987 from 801 respondent No l stating that his detention had been confirmed with effect from 21st March 1987 for a period of one year
The appellant challenged the order of detention in a writ petition and also prayed for quashing of the said order
It was contended on his behalf 1 that the grounds of detention were supplied on 21st March 1987 whereas the vital documents were supplied as late as on 24th April 1987 and that this was a clear infringement of the provisions of section 33 of the COFEPOSA Act
2 That the appellant could not make an effective representation against the order of detention in accordance with the mandatory provisions of Article 225 of the Constitution of India
The order of detention was also challenged on the ground that the order of confirmation of detention did not give any indication as to why the Government had specified or determined the maximum period of detention of one year that there had been an inordinate delay in considering the representation dated 6th April 1987 that it was disposed of by the Central Government on 29th April 1987 and that this delay of 23 days had not been satisfactorily explained
This unusual delay in the disposal of the representation also rendered the order of detention bad
The writ was contested by the first and second respondents by submitting in their counter affidavits that at the time of the search of the premises several personal documents of the detenu like driving licence his and his wife s bank passbooks HUF passbooks account books were seized from the searched premises and that in pursuance of his representation dated 6th April 1987 the detenu was supplied with more documents numbering 150 pages on 24th April 1987 although the same had not been relied upon in forming the subjective satisfaction of the Detaining Authority
The High Court dismissed the writ petition in view of the affidavit filed by the Detaining Authority Respondent No 2 that all the documents seized though placed before the detaining authority he did not rely on them in forming his subjective satisfaction in making the order of detention and as such the non supply of certain documents seized from the premises after search to the detenu along with the grounds of detention cannot be said to amount to an infringement of the provisions of article 225 of the Constitution rendering the order of detention illegal and bad
Allowing the Appeal the Court 802  HELD l
It is crystal clear that certain documents though placed before the Detaining Authority for consideration were not sup plied to the appellant within 15 days from the date of the order of detention as provided under section 33 of the COFEPOSA Act
It is also evident that on the request of the appellant by his representation made on 6th April 1987 the documents were supplied to him on 24th April 1987
The representation of the appellant was disposed of by the Advisory Board on 29th April 1987
In these circumstances it cannot be denied that the failure on the part of the Detaining Authority to supply the aforesaid material documents prevented the appellant from making an effective representation against the grounds of his detention and as such the mandatory provision of article 225 had not been complied with
The order of detention is therefore illegal and bad and the same is liable to be quashed
807C E 2
It is necessary for the valid continuance of the detention that subject to article 226 copies of the documents statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention
There are no exceptions or qualifications provided to this rule and if this requirement of article 225 read with section 33 COFEPOSA Act is not satisfied the continued detention order of detenu would be illegal and void
Appellant directed to be released forthwith
807G H 808A B C Smt
Icchu Devi Choraria vs Union of India and Ors  and Kamla Kanahiyalal Khushalani vs State of Maharashtra and Another  referred to