t Petition No 1125 of 1979 Under Article 32 of the Constitution M K Ramamurthy and R C Pathak for the Petitioner
KK Venugopal Addl
Solicitor General and Altaf Ahmed for the Respondent
Reasons would follow
 The reasons in support of the above order are given below The above petition under Article 32 of the Constitution is filed by the petitioner requesting this Court to quash the order of detention bearing No 299 304ST dated May 23 1979 passed by the District Magistrate Anantnag in the State of Jammu  Kashmir under section 82 of the Jammu  Kashmir Public Safety Act 1978 Act No VI of 1978 hereinafter referred to as the Act  directing the detention 1106 of his petitioner s son Shabir Ahmed Shah hereinafter referred to as the detenu 
The relevant part of the order of detention reads Whereas I Omar Jan District Magistrate Anantnag am satisfied that with a view to preventing Shri Shabir Ahmed Shah so Ghulam Mohammad Shah ro Kadipora Anantnag from acting in any manner prejudicial to the maintenance of public order it is necessary so to do Now therefore in exercise of the powers conferred by section 8 2 of the Jammu and Kashmir Public Safety Act 1978 Act No VI of 1978 I Omar Jan District Magistrate Anantnag hereby direct that the said Shri Shabir Ahmed Shah be detained in Central Jail Srinagar
Sd Omar Jan District Magistrate Anantnag
The detenu was informed in pursuance of section 13 of the Act that his detention had been ordered on the following grounds 1
You originally belonged to Young Man s LEAGUE Hamid group which was an anti national and pro Pak organization of youngmen
You alongwith your erstwhile associates were responsible for creating subversion and danger to the maintenance of public order by organizing antinational demonstrations and protests
Later in the year 1975 when the Peoples  League was formed with the avowed object of challenging the accession of the State of India and also for furthering the cause and interest of Pakistan in the State you joined the party as an active member
You are currently the General Secretary of the Peoples  League
You and Your party have shown open sympathy and have tried to elicit public opinion in favour of Mohammad Maqbool Bhat a die hard pro Pak subversive element who has been sentenced to death on two occasions for murder espionage and sabotage and is currently awaiting execution
Pamphlets and posters have been issued by the Peoples  League in support of Mohammad Maqbool Bhat
In January and February 1970 you joined subversive elements of Sopore area and organized the burning of reli 1107 gious places in order to create chaos in the State
The conspiracy was however unearthed by Baramulla Police in time before much damage was done
You were arrested in Case FIR No 3879 us 436 RPC PS Sopore registered in this connection
Much before the execution of Mr Z A Bhutto in Pakistan you and your party sent hand bills and booklets to arouse the sentiments of the people against the State Govt
You alongwith your party members moved secretly to maintain contacts with disgruntled and undesirable elements in the valley and to arouse their base sentiments in this connection and context
In the third week of March 1979 when some unemployed youth started hunger strike at Lal Chowk Anantnag you lent support to the CPI ML and other parties who were out to create disturbances and to incite the youth to resort to violence and disorder
On 29 3 1979 you alongwith your colleagues held a meeting and decided to disturb public order in Anantnag town in the context of pro Bhutto sentiments and demonstrations the next day
Consequently on 30 3 1979 you alongwith your associates moved stealthily to warn the shopkeepers to close their shops
You also incited the people to put road blocks and stop traffic
You and your associates organized a strike in Anantnag College when it opened on 30th
Later in the day you alongwith your associates incited youths to resort to violence and create disorder
Consequently a lot of violence including murderous assault on the Police and the Magistracy took place in Anantnag town in which many officials were seriously injured
A case FIR No 9879 us 302148336332149120 B RPC was registered
You went underground and could not be arrested for quite some time but you were arrested in the case later
You are presently on bail in this case
On 7 4 1979 when normalcy was being restored in Anantnag town and shops were being opened you alongwith your associates appeared near Lal Chowk and threatened shop keepers to close shops
Their shouting and running had the effect of creating tension in the 1108 town and many shops were closed
Police efforts to arrest you could not succeed as you ran away in the by lanes and later went underground
More recently you have been collaborating with antinational pro Pak elements who come to hold secret talks and links with you
You are a dangerous and desparate character out to create chaos disorder subversion and the like to achieve your ends
Your remaining at large is prejudicial to the maintenance of public order and also to the security of the State
I am convinced that unless you are detained there is every likelihood that you will continue to create confusion in public minds and instigate people to lawlessness and disturbance of public peace and tranquility The paragraphs are numbered by us for the purpose of convenience
It may be noted that whereas the order of detention stated that it had been passed with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order in the last paragraph of the grounds furnished to the detenu it was stated that your remaining at large is prejudicial to the maintenance of public order and also to the security of the State
The relevant part of section 8 of the Act under which the order of detention is passed reads 8
Detention of certain persons 1 The Government may a if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to i the security of the State or the maintenance of the public order or ii the maintenance of supplies and services essential to the community or
b     it is necessary so to do make an order directing that such person be detained
1109 2 Any of the following officers namely i Divisional Commissioners ii District Magistrates may if satisfied as provided in sub clauses i and ii of clause a of sub section 1 exercise the powers conferred by the said sub section
3 For the purpose of sub section 1 a acting in any manner prejudicial to the security of the State means making preparations for using or attempting to use or using or instigating inciting provoking or otherwise abetting the use of force to overthrow or overawe the Government established by law in the State b acting in any manner prejudicial to the maintenance of public order means i promoting propagating or attempting to create feelings of enmity or hatred or disharmony on grounds of religion race caste community or region ii making preparations for using or attempting to use or using or instigating inciting provoking otherwise abetting the use of force where such preparation using attempting instigating inciting provoking or abetting disturbs or is likely to disturb public order iii attempting to commit or committing or instigating inciting provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs or is likely to disturb public order iv attempting to commit or committing or instigating inciting provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more where the commission of such offence disturbs or is likely to disturb public order
 It is seen from section 81 a i and section 82 of the Act extracted above that the Government or the District Magistrate may if satisfied with respect to any person that with a view to preventing him 1110 from acting in any manner prejudicial to the security of the State or the maintenance of the public order make an order directing that such person be detained
The expression acting in any manner prejudicial to the security of the State is defined in clause a of subsection 3 of section 8 of the Act as making preparation for using or attempting to use or using or instigating inciting provoking or otherwise abetting the use of force to overthrow or overawe the Government established by law in the State
Clause b of section 83 of the Act defines the expression acting in any manner prejudicial to the maintenance of public order
The distinction between the two expressions lies in the fact that while in the case of the former the object of making preparation or instigating or abetting the use of force etc should be with a view to overthrow or overawe the Government established by law in the State in the case of the latter the object of the acts mentioned therein should be disturbance of public order
As already mentioned while the order of detention states that it was being made with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order in the grounds disclosed to him it had been stated that the detenu s remaining at large was prejudicial to the maintenance of public order and also to the security of the State
We shall now briefly refer to the nature of the grounds furnished to the detenu
First we shall deal with paragraphs 1 3 and 5 to 7 of the grounds
In paragraph 1 of the grounds it is stated that the detenu alongwith his erstwhile associates was responsible for creating subversion and danger to the maintenance of public order by organizing anti national demonstrations and protests
In paragraph 3 of the grounds it is stated that in January and February 1979 the detenu had joined subversive elements of Sopore area and organized the burning of religious places in order to create chaos in the State
In paragraph 5 of the grounds it is stated that in the third week of March 1979 the detenu had lent support to the Communist Party of India ML and other parties who were out to create disturbances and to incite the youth to resort to violence and disorder when some unemployed youth started hunger strike at Lal Chowk Anantnag
In paragraph 6 of the grounds it is stated that on March 29 1979 the detenu had alongwith his colleagues held a meeting and decided to disturb public order in Anantnag town
In paragraph 7 of the grounds there is a reference to the detenu alongwith his associates inciting the youth to resort to violence and create disorder
It is thus clear that paragraphs 1 3 and 5 to 7 of the grounds there is no reference to any attempt made by the detenu to use force to overthrow or overawe the Government established by 1111 law in the State
Paragraphs 2 4 and 8 of the grounds are also in no way different
In paragraph 2 of the grounds although there is reference to the detenu joining Peoples  League which had been formed with an avowed object of challenging the accession of the State of Jammu  Kashmir to India and also for furthering the cause and interest of Pakistan in the State the act attributed to the detenu is that he had tried to elicit public opinion in favour of Mohammad Maqbool Bhat who had been sentenced to death
An attempt on the part of any citizen to elicit public opinion in favour of a person who had been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State
Similarly the act attributed to the detenu in paragraph 4 of the grounds cannot be considered as an act prejudicial to the security of the State as what is alleged therein is that much before the execution of Mr Z A Bhutto in Pakistan the detenu had sent hand bills and booklets to arouse the sentiments of the people
Although it is stated that the detenu had tried to arouse the sentiments of the people against the State Government the alleged act on the part of the detenu even if it was true could not be considered to be prejudicial to the security of the State of Jammu  Kashmir because the State of Jammu  Kashmir had nothing to do with the proposed execution of Mr Z A Bhutto
Ground No 8 which lacks material particulars appears to be a general one
These grounds are also vague in so far as the question of security of the State is concerned
It is thus clear that none of the grounds supplied to the detenu falls within the scope of clause a of section 83 1 of the Act which defines the expression acting in any manner prejudicial to the security of the State
It is further seen that even though it is stated in the grounds that the District Magistrate was of the view that the detenu remaining at large was prejudicial to the security of the State also he did not make the order with a view to preventing him from acting in any manner prejudicial to the security of the State
A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds he did not propose to act on it
He however tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large the security of the State was likely to be prejudiced
1112 The expressions law and order public order and security of the State are distinct concepts though not always separate
Whereas every breach of peace may amount to disturbance of law and order every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the security of the State
This is borne out from the observations made by Patanjali Sastri J in the decision of this Court in Romesh Thappar vs The State of Madras 1 which are as follows As Stephen in his Criminal Law of England observes Unlawful assemblies riots insurrections rebellions levying of war are offences which run into each other and are not capable of being marked off by perfectly defined boundaries
All of them have in common one feature namely that the normal tranquillity of a civilized society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it
 Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order the difference between them being only a difference of degree yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code
Similarly the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 191 has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridgement of freedom of speech and expression that is to say nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression while the right of peaceable assembly sub clause b and c right of association sub clause c may be restricted under clauses 3 and 4 of Article 19 in the interests of public order which in those clauses includes the security of the State
The differentiation is also noticeable in Entry 3 of List III Concurrent List of the Seventh Schedule which refers to the security of a State and maintenance of public order as distinct subjects of legislation
The Constitution thus requires a line to be drawn in the field of public order or tranquillity 1113 marking off may be roughly the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differences in kind
 As observed by Hidayatullah J as he then was in Dr Ram Manohar Lohia vs State of Bihar  Ors
one has to imagine three concentric circles in order to understand the meaning and import of the above expressions 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 State
It is in view of the above distinction the Act defines the expressions acting in any manner prejudicial to the security of the State and acting in any manner prejudicial to the maintenance of public order separately
An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh vs Arif Ali  Ors2 and Satya Brata Ghose vs Arif Ali  Ors3
The order of detention is therefore liable to be quashed and the detenu is entitled to be set at liberty
The petition is accordingly allowed
In view of the above conclusion we have not gone into the other contention urged by Mr M K Ramamurthi that many of the grounds furnished to the detenu being vague the order of detention cannot be supported even on the ground that it had been passed with a view to preventing the detenu from acting against public order
NKA Petition allowed


Summary:
The petitioner s son the detenu was detained under section 82 of the Jammu and Kashmir Public Safety Act 1978 by an order of the District Magistrate Anantnag Sections 81a1 and 822 of the Act state that the Government or the District Magistrate 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 the maintenance of the public order make an order directing that such person be detained
The detenu was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to the maintenance of public order
The grounds of detention amongst others stated that the detenu had i indulged in subversive activities ii organised the burning of religious places to create chaos in the State iii disturbed the public order iv tried to elicit public opinion in favour of a person sentenced to death and that his remaining at large was prejudicial to the maintenance of public order and also the security of the State
The petitioner challenged the grounds of detention as vague
Allowing the petition under Article 32 of the Constitution and directing the release of the detenu forthwith
 HELD An attempt on the part of any citizen to elicit public opinion in favour of a person who has been sentenced to death and to save him from the gallows cannot be considered as acting in any manner prejudicial to the security of the State because it cannot be considered as an attempt to overthrow or overawe the Government established by law in the State
The fact that the detenu had sent hand bills and booklets to arouse the sentiments of the people against the proposed execution of Z A Bhutto cannot be considered as an act prejudicial to the security of the State because the State of Jammu and Kashmir had nothing to do with the proposed execution
The other grounds are also vague in so far as the question of security of the State is concerned
1111 B E A combined reading of the order of detention and the grounds furnished to the detenu shows that at the time when the order was made the District Magistrate either had no material relevant to the security of the State on which he could act or even if he had information of those grounds he did not propose to act on it
He however tried to support the order of detention by stating in the course of the grounds that by the detenu remaining at large the security of the State was likely to be prejudiced
1111 G H 1105 The expressions law and order public order and security of the State are distinct concepts though now always separate
Whereas every breach of peace may amount to disturbance of law and order every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the security of the State 1112 A B Romesh Thapper vs The State of Madras 1950 SCR 594 at p 600 applied
An act may affect law and order but not public order just as an act may affect public order but not security of State
It is for this reason that the Act defines the expressions acting in any manner prejudicial to the security of the State and acting in any manner prejudicial to the maintenance of public order  separately
An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to an illegal one
1113 C D Dr Ram Manohar Lohia vs State of Bihar  Others  Bhupal Chandra Ghosh vs Arif Ali  Others  and Satya Brata Ghose vs Arif Ali