IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.08.2008 Coram The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice V.PERIYA KARUPPIAH H.C.P.No. 187 of 2008 Karnan @ Karunakaran ..... Petitioner -Vs- 1.The Union of India, represented by its Secretary, Ministry of Home Affairs, (Department of Internal Security), North Block, New Delhi. 2.The State of Tamil Nadu, represented by its Secretary, Public (Law and Order-F) Department, Secretariat, Fort St. George, Chennai-9. 3.The District Collector and District Magistrate, Erode District, District. 4.The Sub Inspector, Dharapuram Police Station, Dharapuram. .... Respondents Petition filed under Article 226 of The Constitution of India to issue a Writ of Habeas Corpus calling for records in Cr.M.P.No..1/N.S.A./2008/C1 dated 09.01.2008 on the file of the third respondent herein and quash the same as illegal and consequently direct the respondents to produce the detenu Karnan @ Karunakaran, the petitioner who is now confined at Central Prsion, Coimbatore before this Court and set him at liberty. For Petitioner : Mr.G.karthikeyan For Respondents : Mr.P.Kumaresan Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ ORDER (ORDER OF THE COURT WAS MADE BY Mrs.PRABHA SRIDEVAN, J.) The detenu himself filed this habeas corpus petition challenging the order of detention dated 09.01.2008 passed against him under proceedings in Cr.M.P.No.1/N.S.A./2008/C1 by the third respondent herein under Section 3(2) of the National Security Act, 1980. The Petitioner/detenu has been detained in Central Prison at Coimbatore. 2. The order of detention shows there is only one adverse case and one ground case. The adverse case relates to an incident that took place on 12.09.2007. The detenu with 61 others had been arrested in front of V.M.Bakkery, Tiruppur Road, Northern side of Dharapuram Bus Stand, for participating in a demonstration and a case was registered in Cr.No.665 of 2007 under Section 151 of Cr.P.C. But, they were let off on the same evening. The ground case relates to an incident that took place on 28.12.2007. A complaint was lodged by the President of Almarasathun Noor Matharasa and Masjid stating that when one Nagamath Ibrahim opened the Masjid for conducting prayer on 28.12.2007 at about 5.30 p.m., he found a dead piglet thrown inside the Pallivasal with stab injuries. According to the complainant, this act might had been done with a malafide intention to defile the Islamic religion and the act had caused much annoyance and heart burning among the members of their society. A case was registered upon this complaint in Cr.NO.953 of 2007 for the alleged offence under Section 295 of IPC. During the course of enquiry on the basis of information received, the detenu was arrested. The detenue confessed that he was an active member of Hindu Front Party. According to the order of detention, the detenue had thought of placing a dead piglet in order to humiliate the Islam Community and he had hit a piglet with stone and thereafter using half blade he cut its neck and later thrown the same into the masjid premises. He heard that the complaint has been lodged in the police station and when he went to the Masjid he saw a large posse of police and therefore, he decided to go over to Udumalaipet. When he was about to board a bus, he was arrested. 3. The learned counsel for the petitioner submitted that the detaining authority was conferred with the power under Section 3(3) of the National Security Act by order dated 09.10.2007 and if so this order would continue in force only for three months and the said three months period would expire on 08.01.2008. Therefore, the order of detention passed on 09.01.2008 was invalid. 4. Next, the learned counsel for the petitioner submitted that in the grounds of detention, it is stated that the piglet was stabbed and thrown inside the masjid, whereas the confessional statement would show that the piglet was killed by cutting its neck with a half blade. The learned counsel further submitted that https://hcservices.ecourts.gov.in/hcservices/ even in the Tamil version, the complainant has used the word "Fj;jp " whereas the word used in the confessional statement was "mWj;J " Using a half blade a stab injury cannot be inflicted. Therefore, there is a total non application of mind. The learned counsel also submitted that under the National Security Act, the authority must see that the requirements of Section 3 (1) and (2) of the Act are satisfied, only then the order of detention can be passed. The learned counsel for the petitioner submitted that mere repetition of the words used in the section will not suffice and there should be materials on record satisfying the conditions for passing order of detention. 5. Mr.P.Kumaresan, learned Additional Public Prosecutor would submit that though the Order under Section 3(3) of the National Security Act was passed on 09.10.2007, the order itself makes it clear that it came into effect from 20.10.2007. So the three months period would end with 19.01.2008. Therefore, the order of detention passed on 09.01.2008 is within the period of three months and the same is perfectly alright. 6. Next the learned counsel for the petitioner submitted that there were enough materials before the detaining authority to indicate breach of public order. The confessional statement would indicate that the act was done with a view to defile the feelings of Muslim community and this itself would show that the public order was disturbed. 7. Next, the learned Additional Public Prosecutor submitted that the minor variation with regard to stabbing and cutting will not in any way vitiate the order of detention. 8. We have considered the submissions made on either side. The first ground viz., that the order of detention is invalid since it is beyond the period specified in the order passed under Section 3(3) of the National Security Act should be rejected, since the learned Additional Public Prosecutor has produced before this Court, an order and a perusal of the same would show it is intended to come into force only w.e.f. 20.10.2007. Therefore, the first contention of the leanred counsel for the petitioner is rejected. 9. As regards public order, the order of detention does not in any way indicate how the public order was disturbed by the Act of the detenue throwing a piglet into the masjid. In fact, the order of detention shows that the only crowd that was standing near Masjid was the police themselves. There is no whisper of tension prevailing in the area among the community or a situation of panic which would result in breach of public order. 10. Section 3(2) of the National Security Act is extracted hereunder for reference:- https://hcservices.ecourts.gov.in/hcservices/ "3. Power to make orders detaining certain persons (1)The Central Government or the State Government may, - (a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the relations of India with foreign powers, or the security of India, or (b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it is necessary so to do, make an order directing that such person be detained. (2) The 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 an 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 persons be detained." 11. The conditions in Section 3(1) (a) & (b) of the Act would not arise here, so we go to Sub Section (2) of Section 3 of the National Security Act. An order of detention may be passed, if (a) the act is prejudicial to the security of State; (b) if act is prejudicial to maintenance of public order; or (c) act is prejudicial to maintenance of supplies and services essential to the community. Here, obviously the conditions (a) and (c) do not arise, so we are left with "public order" 12. Perhaps, the conditions referred to by the detaining authority may include the ingredients that constitute an offence under Section 295 of IPC. But we are concerned with the National Security Act. In 2005-2- L.W. (Crl.) 936 Thiru.Venkata Saravanan @ S.A.R.Prasanna Venkatachariar Chathurvedi V. State and another, the words "public order" were considered. Even there it was urged on behalf of the detenue that the acts committed by the petitioner were not prejudicial to the maintenance of public order, but were only detrimental to the maintenance of law and order. In the said decision, this Court has referred to AIR 1966 Supreme Court 740 (Ram Manohar Lohia V. State of Bihar and another); 1970(1) Supreme https://hcservices.ecourts.gov.in/hcservices/ Court Cases 98 (Arun Ghosh V. State of West Bengal); AIR 1990 Supreme Court 1086 (T.Devaki V. State of Tamil Nadu) and 2003 (1) CCR 169 (SC) (Darpankumar Sharma V. State of Tamil Nadu and others) and delineated the distinction between "Law and Order" and "Public Order" which is extracted below:- "17. Since all the grounds raised by the learned Senior Counsel for the petitioner would revolve around the question of public order, let us now refer to some of the observations made by the Supreme Court in the decision referred to above, in connection with the question of disturbance to the maintenance of public order. (1) 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. (2) It is the degree of disturbance and its effect upon the life of the community in a locality, which determines whether the disturbance amounts to a breach o law and order or the public order. (3) The impact of the incident on the society should be so forceful as to disturb the normal life of the community, thereby shaking the balanced tempo of the orders life of the general public. (4) The distinction between the areas of "law and order' and "public order" is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". (5) The true test is not the kind, but the potentiality of the act in question. The act by itself is not determinant of its own gravity. In its quality, it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different." 13. There are decisions of the Supreme Court that even a solitary act which results in breach of public order would justify the order of detention. In the same decision referred to above, the Division Bench of this Court has dealt with that what should be the potential of the act complained to justify that it is an act which affects public order and the relevant paragraphs are extracted hereunder:- " 29. As held by the Supreme Court, it is the potentiality of the act to disturb the even tempo https://hcservices.ecourts.gov.in/hcservices/ of life of the community and it is the length and intensity of the terror wave unleashed by particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". 30. The alleged act committed by the petitioner cannot merely be termed as an individual crime, since the potentiality i.e., its impact on the society would certainly disturb the tempo of life of the community. 31. The second incident would relate to the complaint, given by Vijayalakshmi. According to Vijayalakshmi, the petitioner/detenu told her that she was having cancer and he would cure the same; for which he demanded Rs.5.00 lakhs and, accordingly, she offered gold, diamonds and jewels worth about Rs.6.00 lakhs to him. Later, she developed suspicion and checked her health with Dr.Sidha, who tested her and told that she had no cancer and she was cheated. Then, she approached the petitioner asking for return of money, who threatened and told her to get out of his Mission. He also instigated his associates , asking them to take her and throw out on the road side. His associates, numbering about six, surrounded her; dragged and pushed her on the road and threatened by uttering that they would kill her, if she came to the Ashramam any more. The public, who were at the spot, noticed the incident and a huge crowd gathered there. Noticing the public, the associates of the petitioner threatened and chased them. In panic, the public left the spot. Vijayalakshmi apprehended danger to her life by the associates of the petitioner. Therefore, she did not choose to give a complaint. Later, she was emboldened to give a complaint, only after she came to know that the petitioner was arrested , in respect of another case. 32. The above details of the incident would clearly indicate the offences committed by the associates, at the instigation of the petitioner, against the lone woman, on a public road, affecting the public traffic and also creating a panic situation, which resulted in the public fearing danger to their lives and leaving the spot. Therefore, the incident that took place, indicate that there was a public threat ; huge crowd had gathered; there was panic and the public fled since fearing danger to their lives. The impact of the https://hcservices.ecourts.gov.in/hcservices/ society was such that it disturbed the tempo of the life in the community. 14. In 2004 (8) SCC 591 (State of U.P. And another Vs. Sanjai Pratap Gupta @ Pappu and others) it was a single act and the Supreme Court held that the stand that the single act cannot be considered sufficient for holding that public order was affected is clearly without substance and that it is not the number of the acts, but the effect of the act on the even tempo of life, the extent of its reach on society and its impact that should be seen. The crucial issue in such cases is whether the act of the detenu was prejudicial to public order and in the above case, the Supreme Court has held in the paragraphs 7 to 12 thus:- "7. The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression "law and order" is wider in scope inasmuch as contravention of law always affects order, "public order" has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of "law and order" and "public order" is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting "public order" from that concerning "law and order". The question to ask is: "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of public order or does it affect merely an individual leaving the tranquillity of the society undisturbed?" This question has to be faced in every case on its facts. 8. "Public order" is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, is: does it lead to disturbance of the current life of the community so as to amount to disturbance of the public order or does it affect merely an individual leaving the tranquillity of the https://hcservices.ecourts.gov.in/hcservices/ society undisturbed? (See Kanu Biswas v. State of W.B.) 9. "Public order" is synonymous with public safety and tranquillity: "it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum, which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. [See Ram Manohar Lohia (Dr.) v. State of Bihar] 10. "Public order", "law and order" and the "security of the State" fictionally draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping, in the sense that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and the security of the State. (See Kishori Mohan Bera v. State of W.B., Pushkar Mukherjee v. State of W.B., Arun Ghosh v. State of W.B. and Nagendra Nath Mondal v. State of W.B.,) 11. The distinction between "law and order" and "public order" has been pointed out succinctly in Arun Ghosh case. According to that decision the true distinction between the areas of "law and order" and "public order" is "one of degree and extent of the reach of the act in question upon society". The Court pointed out that: (SCC p.100, para 3) "An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in https://hcservices.ecourts.gov.in/hcservices/ its potentiality it may be very different." (See Babul Mitra v. State of W.B. and Milan Banik v. State of W.B.) 12. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. 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 touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different." 15. In 1989 (4) SCC 556 (Shafiq Ahamad Vs. District Magistrate, Meerut and others) the allegation was that a cow which belonged to Hindus had been deliberately sent inside the site where the Muslim festival was conducted and that due to such act communal feeling got aroused and therefore, National Security Act was invoked and the detention order was passed. There, the contention was that the authority did not act properly and it was further contended that the criticism of administration is not an act endangering the public order. The Supreme Court held that attempts or action which undermined the public faith in the police administration at the time of communal tension affects maintenance of public order. 16. In (1992) 2 SCC 97 (Victoria Fernandes V. Lalmal Sawma) again the distinction between "law and order" and "public order" was discussed by the Supreme Court and the Supreme Court observed thus:- "8. The distinction between 'law and order' and 'public order' has been explained by this Court time and again. It has been pointed out that while the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, while 'public order' has a narrower ambit and public order would be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it https://hcservices.ecourts.gov.in/hcservices/ prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise the problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question to ask is: Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed? This question has to be faced in every case on its facts. (See: Dr Ram Manohar Lohia v. State of Bihar; Arun Ghosh v. State of W.B.; Ram Ranjan Chatterjee v. State of W.B.; Ashok Kumar v. Delhi Administration)" 17. In the present case, we do not see any such tension as referred to in the judgments of the Supreme Court and we also do not see any disturbance to the current life of the community or that any terror wave was unleashed by the said act. There is not even a ripple among the pubic, except for the presence of a large posse of police. In the extract above, we see that the Supreme Court had held that the impact of the incident on the society should be so forceful that it disturbs the normal life of the community. The detaining authority has not dealt with the public order at all, except to state he is satisfied that the detenu will indulge in activities affecting the maintenance of public order and even the confessional statement does not indicate any such panic situation. The detenue has merely stated that when he went, he saw a large group of police. For the detaining authority to be satisfied that there is a compelling necessity to detain a person under the Act there should be materials to justify such satisfaction. In the present case, such materials are absent. 18. There is one more ground on which this