USMAN Vs. STATE OF M P

JUDGEMENT

(1.) THE Order of the Court was delivered by : On 05.10.2011 the District Magistrate Dhar ordered detention of petitioner under provisions of National Security Act, 1980. Thereafter, State Government by an order dated Nil, confirmed the detention of petitioner for a period of 12 months ending on 04.10.2012. Both these orders (Annexure P-1 and P-2) are under challenge before us. It is urged that the District Magistrate passed the detention order without any application of mind; there was no nexus between the grounds and the detention order, and as such, it is unsustainable in law and deserve to be quashed.

(2.) NOTICE of the petition was issued and at the request of Government Advocate, time was granted to file counter reply and to make available the record at the time of hearing. A reply has been filed to oppose the petition on affidavit of City Superintendent of Police Pithampur. Original Record was not mule available at the time of hearing nor was explanation submitted why record was not produced. We declined adjournment and proceeded with hearing of the petition.

(3.) THE law of preventive detention has stood the test on the anvil of fundamental rights since A.K. Gopalan v. State of Madrasi. It is now well settled, that the order of detention made under the Act is essentially a precautionary measure and is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of surrounding circumstances. It may be easier to draw such inference where there is series of acts evincing the course of conduct to form subjective satisfaction that the person concerned, if not detained, would be likely to act in a manner 'prejudicial to the maintenance of public order'. Activities prejudicial to maintenance of 'public order' are quite distinct from activities relating to 'law and order' problem. The difference between 'law and order' and 'public order' may be explained by drawing two concentric circles the larger representing 'law and order' and the smaller representing 'public order'. Every infraction of law affects the law and order, but an act affecting law and order may not necessarily also affect the public order. For example an assault by one individual upon another would affect only law and order but it would not disturb the public peace; tranquility and even tempo of life so as to amount to breach of 'public order'. The true distinction between the areas of 'law and order' and 'public order' lies in the nature and quality of the act done but also upon the circumstances under which it was done and the degree and extent of its reach upon the society. The detaining authority must reach that satisfaction on the basis of relevant and cogent material, then only such satisfaction partakes the character of a 'subjective satisfaction' which is beyond the pale of judicial review. These are the sine qua non for the valid and lawful exercise of power.