- (1.) THE above three mat ters were heard together as identical ques tion of fact and law was involved therein and accordingly all these three petitions are being disposed of by this common order.
(2.) ALL the three petitioners namely Mahboob, Maqsood and Yaseen are resi dent of village Basaud, Police Station Ami Nagar Sarai, District Baghpat have chal lenged on various grounds the order of detention dated 22-6-1999 passed by the District Magistrate, Baghpat under Sec tion 3 (2) of the National Security Act, 1980 (hereinafter referred to as the Act ). The detention order dated 22-6-1999 is Annexure 1 to the petition and the grounds which are required to be disclosed to the petitioners under Section 8 of the Act are Annexure 2. English translation of relevant part of which reads as under: "that on 17-5-1999 when the children were playing, then Momin, nephew of the in-formant-Shamshad was hit by a stone. He went to his house and narrated the incident to the informant. When the mother of Momin alongwith others went to the house of the petitioners, then you (petitioners) alongwith others at about 1. 30 p. m. caused injuries by lathi, Tabal and Gandasa to four persons on 17-5-1999 at about 5. 30 p. m. A first information report was lodged by Shamshad against the petitioners and others under Sections 323,324, 504,506, IPC at police station Aminagar Sarai, district Baghpat as Crime No. 89/99. When this fact came to the knowledge of the petitioners, then they alongwith others on 18-5- 1999 at 8. 30 a. m. went to teach a lesson to Shamshad and others for lodging a F. I. R. against them and entered in the house of Shamshad and started firing, in which Alimuddin received injuries and when Shamshad, Naushad and Shaboo were running to save their life, then the petitioners caused injuries by fire arm to Naushad, who died, for which a F. I. R. was lodged by Shamsha on 18-5-1999 at P. S. Aminagar Sarai as case Crime No. 92/99. Under Sections 452,307,302, 504, 506, IPC. It was further stated in the ground that as a sequel of this broad day light incident people started running to their houses and feeling in secured and terrorized and to save their life, closed their doors and public peace of the village was disturbed. On account of aforesaid criminal activity of the petitioners, the sponsoring authority reported that the 'public order' failed. " The District Magistrate felt satis fied that with a view to prevent the petitioners from disturbing the 'public order' and their release from jail, it was necessary to pass the detention order. The petitioners were in jail in connection with the aforesaid case crime number then on 22-6-1999 the order of detention and grounds of detention were served on them.
(3.) COUNTER-affidavit on behalf of the District Magistrate, Baghpat, Secretary, Home and Confidential Department, U. P. Secretariat, Lucknow, Superintendent of Jail and Union of India and rejoinder- af fidavit on behalf of the petitioners have been exchanged, and we have heard Mr. G. C. Saxena, learned Counsel for the petitioners. Learned AGA and Mr. K. N. Pandey for Union of India. Mr. Saxena learned Counsel for the petitioner, urged that the District Magistrate has misused his powers by in voking the provisions of Section 3 (2) of the Act as from the facts and circumstan ces of the case and the grounds which have been disclosed to the petitioners, even if they are taken to be correct, activities of the petitioners cannot be termed as prejudicial to the maintenance of 'public order' and it was a pure and simple case of breach of 'law and order' and therefore, the order of detention is illegal. However, the submission made by Ms. Saxena was op posed by the learned Counsel for the respondents. In a series of decisions of the apex Court as well as this Court, terms "law and order" and "public order" have come to be interpreted and explained. In Vijay Namin v. State of Bihar and others, (1984) 3 SCC 14, the apex Court ruled that the Constitution does not give a carte blanche to any organ of the State to be arbiter in such matters. Preventive detention is con sidered to be treacherous and such an anathema to be civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fun damental Rights. Preventive detention is not beyond judicial scrutiny. It has always been the view of apex Court that the deten tion of individuals without trials for any length of time, however, short is wholly inconsistent with the basic ideas of our Constitution and the gravity of the evil to the community resulting from anti social activities can never furnish an adequate reasons of invading the personal liberty of the citizen except in accordance with the procedure established by law. In Shafiq Ahmad v. District Magistrate, Meerut, AIR 1990 SC 220 ; 1990 (1) JIC 63 (SC), the Apex Court observed that it has to be seen whether the grounds or reasons supplied to the detenu in support of the detention order were germane to the maintenance of 'public order'. The Court can examine the record and determine the validity whether the order is based on no materials or whether materials have rational nexus with satisfaction that 'public order' was breached. The order of detention can no doubt be passed for the maintenance of the 'public order but such an order cannot be a substitute to detain an accused person who has breached the 'law and order' and who can adequately be dealt with under the ordinary criminal law. There is clear dis tinction between the two connotations, viz. "breach of Law' and 'public disorder'. The distinction has come to be canvassed in a catena of decisions of apex Court of Dr. Ram Manohar Lohia v. State of Bihar, AIR ' 1966 SC 740; Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228, came to be considered in the subsequent cases in Pushkar Mukerji v. State of West Bengal, AIR 1970 SC 852, Narendra Nath Mandal v. State of West Bengal, AIR 1972 SC 665, Kishori Mohan Beera v. State of West Ben gal, AIR 1972 SC 449,amiya Kumar Karmokar v. State of West of Bengal, AIR 1972 SC 2259, Samresh Chandra Bose v. District Magistrate, Burdwan, AIR 1972 SC 2481, Sasthin Chandra Roy v. State of West Ben gal, AIR 1972 SC 2134, Babul Mittra v. State of West Bengal, AIR 1973 SC 197, Ram Ranjan Chatterjee v. State of West Bengal, AIR 1975 SC 609, Jaya Mala v. Home Secretary Government of Jandk, AIR 1987 SC 1297, Ashok Kumar v. Delhi Administration, AIR 1982 SC 1143, State of U. P v. Kamal Kishore Saini, AIR 1988 SC 298, Gulab Mehra v. State of UP, AIR 1987 SC 2332, Smt. Angoori Devi for Ram Ratan v. Union of India, AIR 1989 SC 371; 1989 JIC 281 (SC), Harpreet Kaur (Mrs.) Harvinder Singh Bediv. State of Maharashtra, 1992 AIR SCW835,smf. Kamlabaiv. Commissioner of Police Nagpur and others, JT 1993 (3) SC 666, as well as other recent decisions of the apex Court as well as this Court. To eschewed prolixity, we refrain from detailing all those (sic) except the observations made in Smt Angoori Devi for Ram Ratan v. Union of India, (supra), in which the apex Court dis tinguishing between 'public order'and 'law and order had the occasions thus: "the impact on 'public order' and 'law and order' depends upon the nature of the act, the place where it is committed and motive force behind it. If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community, it may be a matter of law and order only. But where the gravity of the act is otherwise and likely to endanger the public tranquility, it may fall within the orbit of the public order. This is precisely the distin guishing feature between the two concepts. ";