# ANANTA MUKHI, @ ANANTA HARi v. STATE OF WEST BENGAL

- **Citation:** [1972] 3 S.C.R. 379
- **Court:** Supreme Court of India
- **Decided:** 1972-02-03
- **Case number:** Writ Petition No. 322 of 1971
- **Bench:** J. M. Shelat, H. R. Khanna, K. K. Mathew
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ananta-mukhi-ananta-hari-v-state-of-west-bengal-5550
- **Pages:** 22

## Headnote

West Bengal (Prevention of Violent Activities) Act 1970-Sec. 3 (2)
and Sec. 3(3)-Their scope.
Petitioner, through Jail, filed a writ petition under art. 32 for a writ
of habeas corpus. He was ordered to be detained u/s. 3 of West Bengai
(Prevention of Violent Activities) Act, 1970, with a view to preventing
him from acting in any manner prejudicial to the security of the State
or the maintenance of public order. The grounds of detention were tbnt
the petitioner along with 50/60 other persons armed with lethal weapons
raided the house of a person on October 4, 1969 ot night and looted cash,
ornan1ents etc., ·and on November 81 1969 at ~bout 10 p.m., the petitioner
along with 20/30 associates armed with lethal weapons, raided the house
of another citizen and .kflled his two brothers and looted ornaments etc.
It was contended on beh~lf of tb.c petitioner that the detaining authority had taken into consideration facts extraneous to Sec. 3 of the Act
in making the order of detention and therefore, the said order was illegal
and secondly, that the order of detention showed that the District Magistrate h~d not duly applied his mind before making the detention order as
the petitioner was detained with a vie\Y to preventing him from acting
in any manner prejudicial to the seCutity of the State or the maintenance
of public order. According to the petitioner, the detaining authority was
not sure as to whether the petitioner \.Vas detained for a.cling in any
manner prejudicial to the security of the Stale or whether he was detained
from acting in any manner .prejudicial to the maintenance of public order.
Tue District Magistrate could not make ~n indefinite order by using the
word 'or' in the detention order and so the order was bad.
Dismissing
the petition,
HELD : (i) Tue activities of the petitioner as mentioned in the
grounds of detention were not of an extraneous character but fell within
the expression acting in any manner prejudicial to the security of State
or the m~intenance of public order, as defined in Sub-Section (2) of
Section 3 of the Act.
According to the grounds of detention, the petitioner and his associates committed offences punishable with death or imprisonment for life or imprisonment for a term exceeding seven ~ars or
more, and as iuch, the case of the petitioner was covered by Clause (d)
of Sub-Section (2) of Section 3 of the Act.
Further, the activities of
the petitioner disturbed public order and the petitioner became a terror
to the residents of the locality ~nd under the circumstances, the District
Magistrate was empowered to exercise his powers under Sub-Section (3)
of Section 3 of the Act. (395 F]
:iso
SUPREME COURT REPORTS
[1972] 3 s.c.R.
(ii) The Special definition given in Sub-Section (2) of Section 3 of
1he Act of the expression1 "acting in any manner prejudicial to the security
·Of the State or the maintenance of public order", ls of comprehensive
nature '3nd each one of the activities mentioned in the various clauses of
the said sub-section constitutes an act prejudicial to the security of the
State or the maintenance of public order. The presence of the \vord "oi""
in the definition itself tends to show that the use of that word in the
order is not impermissible and there was no element of casualness or
absence of due application of the mind in the moking of the impugned
order. [397 DJ
Shelat J. Dissenting: The c"nstruction of the definition in S. 3(2)
cannot mean that .any one ·of the activities enumerated in Clauses (a) tO
(e) would fall under both the grounds, namely, the security of the State
and the rnainten3nce of public order.
An act, such as, use of or instigating to use a lethal weopon for the
purpose mentioned in Clause (a) (i) or causing insult to the national flag
mentioned under Clause ( e) would be a ground of ·detention, if it either
affects, or is likely to ~fleet adversely either the security of the State or
public order depending upon the potentiality and the extent of the act in
ques

## Text

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ANANTA MUKHI, @ ANANTA HARi
v.
STATE OF WEST BENGAL
February 3, 1972
379
[J. M. SHELAT, H. R. KHANNA AND K. K. MATHEW, JJ.J
West Bengal (Prevention of Violent Activities) Act 1970-Sec. 3 (2)
and Sec. 3(3)-Their scope.
Petitioner, through Jail, filed a writ petition under art. 32 for a writ
of habeas corpus. He was ordered to be detained u/s. 3 of West Bengai
(Prevention of Violent Activities) Act, 1970, with a view to preventing
him from acting in any manner prejudicial to the security of the State
or the maintenance of public order. The grounds of detention were tbnt
the petitioner along with 50/60 other persons armed with lethal weapons
raided the house of a person on October 4, 1969 ot night and looted cash,
ornan1ents etc., ·and on November 81 1969 at ~bout 10 p.m., the petitioner
along with 20/30 associates armed with lethal weapons, raided the house
of another citizen and .kflled his two brothers and looted ornaments etc.
It was contended on beh~lf of tb.c petitioner that the detaining authority had taken into consideration facts extraneous to Sec. 3 of the Act
in making the order of detention and therefore, the said order was illegal
and secondly, that the order of detention showed that the District Magistrate h~d not duly applied his mind before making the detention order as
the petitioner was detained with a vie\Y to preventing him from acting
in any manner prejudicial to the seCutity of the State or the maintenance
of public order. According to the petitioner, the detaining authority was
not sure as to whether the petitioner \.Vas detained for a.cling in any
manner prejudicial to the security of the Stale or whether he was detained
from acting in any manner .prejudicial to the maintenance of public order.
Tue District Magistrate could not make ~n indefinite order by using the
word 'or' in the detention order and so the order was bad.
Dismissing
the petition,
HELD : (i) Tue activities of the petitioner as mentioned in the
grounds of detention were not of an extraneous character but fell within
the expression acting in any manner prejudicial to the security of State
or the m~intenance of public order, as defined in Sub-Section (2) of
Section 3 of the Act.
According to the grounds of detention, the petitioner and his associates committed offences punishable with death or imprisonment for life or imprisonment for a term exceeding seven ~ars or
more, and as iuch, the case of the petitioner was covered by Clause (d)
of Sub-Section (2) of Section 3 of the Act.
Further, the activities of
the petitioner disturbed public order and the petitioner became a terror
to the residents of the locality ~nd under the circumstances, the District
Magistrate was empowered to exercise his powers under Sub-Section (3)
of Section 3 of the Act. (395 F]
:iso
SUPREME COURT REPORTS
[1972] 3 s.c.R.
(ii) The Special definition given in Sub-Section (2) of Section 3 of
1he Act of the expression1 "acting in any manner prejudicial to the security
·Of the State or the maintenance of public order", ls of comprehensive
nature '3nd each one of the activities mentioned in the various clauses of
the said sub-section constitutes an act prejudicial to the security of the
State or the maintenance of public order. The presence of the \vord "oi""
in the definition itself tends to show that the use of that word in the
order is not impermissible and there was no element of casualness or
absence of due application of the mind in the moking of the impugned
order. [397 DJ
Shelat J. Dissenting: The c"nstruction of the definition in S. 3(2)
cannot mean that .any one ·of the activities enumerated in Clauses (a) tO
(e) would fall under both the grounds, namely, the security of the State
and the rnainten3nce of public order.
An act, such as, use of or instigating to use a lethal weopon for the
purpose mentioned in Clause (a) (i) or causing insult to the national flag
mentioned under Clause ( e) would be a ground of ·detention, if it either
affects, or is likely to ~fleet adversely either the security of the State or
public order depending upon the potentiality and the extent of the act in
question.
Such use or instigation or insult to national flag, might affect
only public order and on a state-wide potentiality, it might affect adversely
even the security of the State.
But irrespeCtive of such reach OF poten·
tiality, the clause cannot n1ean that such an act in itself and without anything more must be deemed to fall under the mischief of both the kinds.
The result of accepting such a oonstruction would mean that once an
'OCt falls unde'r any one of the clauses (a) to (e), even if it affects or is
likely to affect public order only, must also be held to affect or likely to
effect the security of the State thus totally wiping off the difference between
the two concepts and their respe~tive are<IS of iolluence and that could
not be the intention underlying Sub-Section (2) of Sec. 3. Therefore,
it must be held that the use of the disjunctive '<Ir' in the impugned order
rendered the order of detention vague and indefinite, indicative of the
detaining authority having merely reproduced mechanically the language
of S. 3(1) of the Act without applying its mind.properly. [389 D; 390 HJ
Jagannath Misra v. State of Orlssa, [1966] 3 S.C.R. 134, discussed and
distinguished.
Dr. Ram Manohar Lohia v. State of Bihar [1966] 1 S.C.R. 709; Madhu
Limaya v. S.D.O. Monghyr & Ors., [1970] 3 S.C.R. 746, State of West
Bengal v. Ashok Dey & Ors, Cr. Appeal No. 217 to 223 of 1971, decided
on November 19, 1971, referred to and followed.
Shyamal Manda/ v. State of West Bengal, A.I.R. 1971 S.C, 2384,
referred to,
ORIGINAL JURISDICTION : Writ Petition No. 322 of 1971.
R. K. lain, for the petitioner.
G. L. Mukhoty and G. S. Chatterjee, for the respondent.
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ANANTA MUKHI V. WEST BENGAL (She/at, J.)
3 81
J. M. SHELAT, J. gave a dissenting opinion. The Judgment of
H. R. KHANNA and K. K.
MATHEW, JJ. was delivered by
KHANNA, J.
Shelat, J.,
The order of detention impugned in this petition is as follows:
"ORDER
~~o. 97iC
Dated 24-4-71
Whereas I am satisfied with respect to the person known as
s:1ri Anania Mukhi, @ Ananta Bari, son of Gobardhan, @ Gurai
o.f Antpara, Chakbazir, P. S. Debra, Dt. Midnaporc that with a
view to preventing him from acting in any manner prejudicial to
the security of the State or the maintenance of public order, it is
necessary so to do, I therefore in exercise of the powers conferred
by sub-section (!) read with sub-section (3) of section 3 of the
West Bengal (Prevell'tion of Violent Activities)
Act,
1970
!President's Act No. 19 of 1970) make this order directing that
the said Shri Ananta Mukhi @Anania Hari be detain·~d.
Given under my hand and seal of office.
Sd./- District Magistrate
Midnapore"
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The question which falls for determination in this petitlion is
whether detention directed by an order which recites that it was
made upon satisfaction of the District Magistrate that the person
concerned was acting in a manner prejudicial to the security of
the
State or the maintenance of
public order is an
order lawfully made. The argument was that the use of the disF junctive 'or', instead of the conjunctive 'and', showed either that
the detaining authority was ·not certain under which of the two
grounds, namely, the §_ecurity of the State or the maintenance of
public order, he had reached his sub.iective satisfaction, impelling
him to consider the petitioner's detention necessary, or that the
order was passed mechanically, merely reproducing the language
of sec. 3(1) without any application of. mind as to whether the
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acts of the petitioner, actual or anticipated, were prejudicial to the
security of the State or the maintenance of public order, or both.
If it was the last, obviously, the order should have used the conjunctive 'and', and not the disjunctive 'or'. To appreciate the
contention, it would be necessary to understand the object and
the scheme of the Act.
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By a Proclamation, dated March 19, 1970, made under Art.
356 of the Constitution, the President of India, being satisfied that
a situation had arisen in which government in West Bengal could
3 82
SUPREME COURT REPORTS
[1972) 3 S.C.R.
not be carried on in accordance with the provisions of the Constitution, assumed to himself the functions of government of that
State and declared that the powers of the State Legislature shall
be exercisable by or under the authority of Parliament. In pursuance of the said Proclamation, Parliament enacted, on April
29, 1970, the West Bengal State Legislature \Delegation of Powers)
Act, XVII o[ 1970, under sec. 3 of which the State Legislature's
power to m:1kc laws was conferred on the President, who was
empowered to enact, whether Parliament was in session or not, as
President's Act a bill containing such provisions as he considered
necessary.
In exercise of the powers ·contained in Act XVII of
1970, the President enacted the President Act XIX of 1970. Since
that ... \ct \Vas enacted in exercise of and in accordance with the
powers of the State Legislature, the Act providing for preventive
Jotcntion could l·o passed in terms and within 11he scope of entry .
3 of I he Con current List in lhe Seventh Schedule to the Constitution. thM is to say, for· reasons connected with (a) the security of
that State. \ b ). ~he maintenance of public order, or ( c) the maintenance of supplies. and services essential to 1he community.
Act XIX of 1970 was enacted to "provide for detention with
a vie'v to preventing violent activities and for matters connected
therewith". Sec. 3, the construction whereof is called for in this
petition, by its Jirst sub-section confars power oo make detention
orders against certain persons. That sub-section reads as follows :
"The State Government may, if satisfied with respect
to any person that with a view to preventing him from
acting irr any manner prejudicial to the security of the
State or the maintenance of public order, it is necessary
so to do, make an order directing that such perso11 be
detained."
Its second sub-section contain~ a definition of the expression "acting in any manner prejudicial to the secnrity of the State or the
m'aintepance of public order" employed in sub-section. (1), and
enumerates in. clauses (a) to (e) diverse acts as falling within the
said expression. That sub-section reads as follows :
"(2) For the purposes of ~ob-section (1), the expression "acting in any manner prejducial to the security of
the State or the maintenance of public order" means-
(a) using, or instigating any person by words,
either spoken or written, or by signs or by
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visible representations or otherwise, to use,
any lethal weaponH
(i) to promote or propagate any cause or ideology, the promotion pr propagation of which
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ANANTA MUKHI v. WEST BENGAL (Slie/al, J.)
383
(ii)
affects, or is likely to affect, adversely the
security of the State or the maintenance of
public order; or
to overthrow or to overawe the Government
established by law in India.
Explantaion.-In this clause, ··1cthal weapon"
.includes fire-arms, explosive or corrosive subs!·
anccs, s·~vords, spears, daggers, bo\VS and arrov.•s;
or
< b) committing mischief, within the meaning of sec·
tion 425 of the Indian Penal Code, by fac or any
exploshic sue~i_ance on nny prop~rty of CTovernn1ent or any loc:~I auth0:!t'f or any corn~n·t~0n
owned or controlled by Government or any Uni·
versity or oth~r educational ins1il!Jtion or on any
pu0lic building, where the commiswn of such
mi;cbief disturbs, or is likely to disturb, public
order; or
(C) causiag inw:t to the Indian Nationμ] Fiag or to
any other object of public veneration, wheiher by
mutilating, damaging, burning, defiling, destroying or other\vise, or instigating any person to do
so.
Explanation-In 1his clause, "object of public
veneratio" includes any portrait or statue of an
eminent Indian, installed in a public place as a
mark or r>~spect to him or to his memory; or
(<l) con1n1itting, o:· instigating any perc:;on to co1nmit, any offence punishable with death or imprisonment for life or imprisonment for a term
extending to seven years or more or any offence
under the Arms Act,
1959 or the Explosive
Substances /\cl, 1 908, where the commission of
such offence disturbs, or is likely to disturb,
public order: or
( e) in the case or a person referred to in clauses (a)
to (f) of section 110 of the Code of Crimina I Procedure, 1898, committing any offence punishable
with im!)risonment
where the commission of
such offence disturbs, or is likely to disturb, publi9 order."
Under sub-sec. (1), the· satisfaction is regarding the necessity
of preventing/the person concerned from acting in any manner
prejudicial either to the security of the State or the maintenance
l2~LS87 Sup CI/72
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[1972] 3 s.c.R.
of public order. As the language of the sub-section stands, such
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satisfaction must be in relation to an activity, prejudicial either to
the security of the State or the maintenance of public order, or in
certain cases even both.
Therefore, before the power of deten •
tion can be invoked the detainlng authority nm&t be satisfied that
the activity of the person concerned is such that it is either prejudicial 110 the security of the State or the maintenance of public
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order or both.
Neitl1cr the expression "security of the State" nor "the main·
tcnance of public order" has been defined either in this Act or
in the Preventive Detention Act, IV of 1950, or the Defence of
India Act, 1952 and the Rules made thereunder, which earlier
made provision for preventive detention.
Unlike the previous
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enactments, sub-sec. (2) of s. 3 in the present Act, however, furnishes a dictionary for the expression "acting in any manner pre·
judicial to the security of t,he State or the maintenance of public
order", and then enumerates in els. (a) to (e) certain categories of
acts which would fall under the aforesaid expression. The defini·
tion, however, does not provide the meaning of the two concepts
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"security of the State", or, "public order", and leaves the detaining
authority to determine whether an act in question disturbs or is
likely to disturb or endanger either of them, or both. It becomes
necessary, therefore, to ascertain the connotation of these two concepts as lai<! down in certain judicial pronouncements. Although
those pronouncements were under tl1e Preventive Detention Act of
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1950, they would, nevertheless, apply to the present Act also, since
by not providing any different definition the legislative authority
must be presumed to have used the expressions, security of the
State and the maintenance of public order, according to their wellestablished meanings.
·
In Dr. R. M. Lohia v. Bihar( 1), the impu~ned detention order
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was passed under r. 30(1) of the Defence of India Rules, 1962
which required satisfaction of the detaining authority that tlle per·
son concerned should be prevented from acting in a marmer prejudicial inter alia, to the public safety an~the maintenance of
public order.
The order impugned the
stated 1hat the
authority was satisfied that it was necses
to detain the petitioner with a view to prevent him from acting in a marmer pre·
judicial to "the public safety and maintenance of la\v and order"
After considering the earlier decisions on the question as to the
meaning of the expressions, 'law and order', 'public order' and
'security of I.he State', Hidayatullah, J., (as he then was) summed
up as follows :
"The District Magistrate acted to "maintain law and
order" and his order could not be read differently even
(I) (196<] I SC R 709.
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ANANTA MUKHI v. WEST BENGAL (She/at, J.)
335
if there was an affidavit the other way. If he thought
in terms of "public order" he should have said so in his
order, or explained how the error arose. A mere reference-to his earlier note was not sufficient and the two
expressions cannot be reconciled by raising an air of simiiitude between them. 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.
One has to imagine three concentric circles, the largest
representing "law and order"', the next representing "public order" and the smallest representing "security of
State". An act may affect "law and order" but not "public order", just as an act may affect "public or<ler" but
not security of the State".
Ther~fore, by using the ex•
pression "maintenance of law and order" the District
Magistrate was widening his own field of action and was
adding a clause to the Defence of India Rules."
D These observations clearly bring out the distinction between the
three concepts, of law and order, public order and lhe security
of the State, and the scope of each of them. The drawing up of
imaginary concentric circles helps considerably in delineating the
distinction bet.ween one from the other and the area covered by
each of them. A similar distinction between the concept of law
and order and that of public order was drawn in Pushkar MukherE
jee v. West Bengal(') by a caution therein that the expression
"public order" in sec. 3(1) of the Preventive Detention Act, 1950
did not take in every infraction of law. In was observed that the
contravention of any law always affects 'order', but before it can
be said to affect 'public order', it must affect the community or
the public at large. Mere disturbance of law and order leading to
F disorder is not necessarily sufficient for action under the Preven·
tive Detention Act, which can only be invoked where there is
apprehended a disruption of public order. The true distinction
between the three concepts lies, as pointed out in Arun Ghosh v.
West Bengal(2 ), in the degree and extent of the reach of the act
in question upon society. Acts similar in nature, but committed
G in different contexts and circumstances might cause different reactions. In one case, it might affect the problem of law and order,
and in another, though similar in quality, of public order. (sec
also Nagendra Nath Monda! v. West Bengal('). An act, such
as communicating the defence secrets of a country to an enemy
country, while not affecting the maintenance of law and order
H or public oriier, would affect adversely the security of the State.
On the other hand, there may be activities which depending upon
(I) [1969] 2 S.C.R. 63S
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(2) [1970) 3 S.C.R, 188
(3) Writ Petition 308 of 1971, decided on 13-1-72.
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SUPREME COURT REPORTS
(1972] 3 S.C.R.
Af
the degree of their effect and potentiality might affect all the three
at the same time.
The three concepts have, thus, through a catena of decisions
a~quired well under~tood meanings, and though in some cases
tllcy might overlap to a certam extent, the ruotinction between
them is tairly clear. When, therefore, statutes, such as the present
one, confer power on an authority to deprive a citizen of his
lib~rty, and bar at the same time any judicial scrutiny into the
sufiiciency of reasons for doing so, it is vital that the action depriving such liberty, without the usual trial, must not only comB
ply with the substantive but also the formal requirements of the
statuto conferring such power, for, it is the latter which wouk
'.how whether the form1;r have been complied with. If the power,
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tl!erefore, is exercised because a certain result, namely, danger to
pubiic order or the security of the State,. is apprehended, the de1ainin5 authority ought to set out in clear terms both in the ordet·
and the grounds for detention upo1i which of the two apprehended results, or both, he is satisfied.
Obviously, it would not
lie possible, without th~t being explicitly set out, for the person
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concerned to make a representation, which is the only protection
and safeguard given to him under such statutes.
The detaining
Quthority has, therefore, to carefully ascertain, in order to reach
his requisite satisfaction, whether the activity in ques\ion, whether
actual or expected, affects or is likely to aikct any one of the
two things, namely, public disorder, or d~nger to the security
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of the State or both, and state so clearly in the order. It may
be that the activity in question might be such that it affects or is
likely to affect one or the other, or both at the same time, in
which case he can state that his satisfaction was as regards both.
As is clear from the first sub-section of sec. 3, that sub-section
confers power to make detention orders against certain persons
but its exercise is conditioned by the satisfaction that if not detained,
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the activity of the ·person concerned, actual or anticipated, will
affect prejudicially either the security of the State or the public
order, or both. 1be disjunctive 'or', used there, must mean that the
required satisfaction is one or the other ground, or even
both. But, unlike the earlier Acts, which provid~d for preventive
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detention, the present Act furnishes in the second sub-section of
sec. 3 a definition for the expression used in the first sub-section,
namely, "acting in any manner prejudicial to tl1e security of the
State, or the maintenance of public order", by setting out tertain
cat~gories of activities which must be accepted as capable of affecting prejudicially the security of State or the public order. Using
or instigating a person, orally or in writing, or by signs or verbal
representation, or otherwise; to use any lethal weapon either (i)
to promote or propagate a cause or ideology, the promotion or
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ANANTA MUKHI v. WEST BENGAL (She/at, J.)
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propagation of which alfects, as is likely to affe~t adversciy ti~~
se~uruy of the State, or the maintenance of public order, or (11)
to overthrow, or overawe the Government established by law
would, according to the definition in sub-sec. (2), mean acting in
a manner prejudicial to the security of the State or the maintenance of public order. It would seem from cl. (a) that acts of the
kind mentioned in sub-cl. (i) would be regarded as prejudicial to
public order or security ol the State, as the case may be, while
those mentioned in sub-cl. (ii) would he regarded as capable of
prejudicial to the security of the State. The language of cl. ( c;!
itself suggests that besides the act being of the kind mentioned
in sub-cl. (i) the authority must also be satisfied that the act there
set out is one that affects, or is likely to affect adversely public
order.
Under cl.. (b), committin;.': mischief, as defined in sec.
425 of the Penal Code, by fire or explosive substance on the classes
of property specified there, provided again that such mischief
disturbs or is likely IP disturb public order, would fall under the
definition. CI. (b) thus requires two ingredients, (i) that the act in
question is mischief and is . committed by fire or explosive substance on property of the kind set out there, and (ii) the satisfaction of the authority that the mischief is such that it affects or
is likely to affect public order. Surely, setting fire to an educational
institution, or a public building, reprehensible though it is, could
not possibly have been intended to mean putting the security of
the State in jeopardy. Ordinarily, it might not perhaps have been
considered as an ac~ .Pecessarily disturbing or likely to disturb public order, but sec. 3(2) makes it so, in view of the exU-aordinary
situation then existing in West Bengal, and the background in
which the Act was passed. The result is that an activity of the
kind set out in cl. (b) would be regarded as a ground for an order
under &ub-sec. (1) provided the detaining authority is satisfied
that its effect, actual or likely, is disruption of public order. It
will be noticed that cl. (b) does not say that the effect of such an
activity would prejudicially affect th~ security of the State, and
refers only to public order. It is, therefore, manifest that cl. (b)
does not intend t11e invoking of the power under sub-sec. 1 on
the ground of any apprehension to the security of t11e State.
On the other hand, acts specified in cl. ( c) might affect public
order, and in some cases, even the security of ilie State, depending upon their extent and potentiality. An insult to ithe National
Flag or any other object of public veneration might result in disturbance of public order, or even security of the State, depending ·
'upon the circumstances, the degree of veneration for the object in
question and other such factors. In such cases, the detainin_g
authority would have to ascertain from the facts and circumstances
of each case whether the act· under consideration was likely. to
affect one or the other, or even both. But, cl. ( c) is not in!ended
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[1972} 3 S.C.R.
to mean that every such a~t must, without anything more, be
A
deemed to mean affecting both public order and security of the
State.
.
Activities set out in both els. (d) and (e) also require satisfaction of tl!e authority that !hey are such that they have either disturbed or tend to disturb public order. It is again noticeable that
B
both the clauses omit !he expression "security of the State". Such
an omission must mean that those activities have a bearing on and
relate to public order, and not to the security of the Sta!e. Subsec. (2), by furnishing a dictionary to the expression "acting in
any manner prejudicial to the security of the Sta!e or the maintenance of public order" enables the detaining authority to treat the
specific categories of activities set out 1therein as activities capable C
of affecting the security of the State or the public order, and to
invoke the power if it is satisfied that !heir effect, actual or likely,
is adYerse to either, or both of them, depending upon their extent
or potentiality. Before, therefore, resorting !O sub-sec. (1), the
authority has to be satisfied whether the act or acts alleged against
the person concerned fall under one or the other ground, viz., the
D
security of the State or public disorder or under both. If the authority decides to make the order, it must state in i! whether its satisfaction is on one or the other ground, or both. The mere fact that
the acts in question are of any of !he kinds mentioned in els. (a)
to (e) of sub-sec. (2) does not mean that they autometically and
without anything more mean acting in a manner prejudicial to the
E
security of the State as well as maintenance of public order. It
can mean either one or the other, or even both, depending upon
the satisfaction of the authority as to its effect on one or the other
or both.
But it wgs said that a construction contrary to the one sugge,led above has been taken in Shyamal Monda/ v. West Bengal(')
The impugned order there stated that the District Magistrate was
s~tisfied that it was necessary that the petitioner should be detained
with a view to prevent him from aoting in any manner prejudicial
LO the securitv of the Sta!e or th~ maintenance of public order.
The grounds for detention served on the detenu, as set out at page
674 of the rePort, show that !he acts alleged against him and in
respect of which the District Magistrate thought it necessary to
detain him were (a) an attack on a passenger train by the petitioner and his associates, armed with bombs and explosives, with
F
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a view to catcl) their rivals, obviously political rivals, and to kill
them, which iniu:ed some innocent passengers, (b) attack and
a'sault on !he guard of another train by the petitioner and his
associates who were again armed with bombs and daggers, and
H
(c) an &~tack bv the petitioner and his associate.q, similarly armed.
(I) [19711 2 S.C.C. 672.
A
B
c
D
E
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ANANTA MUKH! v. WEST BENGAL (She/al, J.)
389
on a police. partY at a railway station. All the three grounds men·
tioned the District Magistrate's conclusion that in each case there
was disturbance of public order and panic and terror amongst the
passengers. There was clearly no reference to any danger or
apprehension to the security of the State as the dimensions of the
act~ alleged were confined to the respeC'tive local areas, namely,
1he named railway station. The contention rais-~d was that the
acts alleged against the detenu had no bearing on the security of
the State, and that the order contained, therefore, extraJl"..ous and
irrelevant ma~ters, namely, the apprehension to the security of the
State, over which, by the very nature of the acts attributed to the
petitioner, and the conclusion stated by the District Magistrate in
each of the grounds, he could never have reached his satisfaction.
The contention was repelled on the ground "that the act itself furnishes a dictionary meaning for the two expressions and a perusal
of clauses (a) to (e) clearly shows tha! any of the matters referred
to therein will be both "prejudicial to the security of the State or
ilie mainten~nce of public order". With great respect, such a
construction of the definition in sec. 3(2) would mean that any
one of the activities enumerated in els. (a) to (e) would fall under
both the grounds, namely, the security of the State and the maintenance of public order, and therefore, it would ·not be necessary for
1he detainine: authority to ascertain for his satisfaction whether the
;,ct for which he considers detention necessary is of the type or
category which is or tends to be prejudicial to the security of 'lhe
State or the maintenance of public order. In other words, any
one of the a.cts set out in els. (a) to (e) must be regarded as preiudicial to both fae security of the State and the maintenance of
~·ut-!ic order.
If that is 'the meaning which is to be attributed to the definition
;n sec. 3(2), the detention order, read in the light of the grounds
of detention served on the petitioner there would appear to be not
in accord with the realities.
For instance, an attack on a train
with the object of seiring political rivals and to eliminate them
would, without doubt, be one that creates public disorder, but such
public disorcter affects persons in the area in which i't is disturbed.
So far as the first ground was concerned, the attack was on a train.
In the two Qther grounds, the areas affected were two railway
stations. Would it, in the light of these confines, be realistic to
390.
SUPREME COURT REPORTS
[1972] 3 S.C.ll.
A
say that the three alleged acts were such that they placed the
security of the State of West Bengal in danger, or had even the
tendency to do so ? Further, each of the grounds of detention, a>
framed by the District Magistrate himself, contained his conclusio11
that in each case there was disturbance of public order. Ob·
viously, the satisfaction which he had reached was 1hat the alleged
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acts were SJ!Ch that they disturbed or tended to disturb public
order. Could such acts, which even according to the District
Magistrate himself led to public disorder in a particular area, be
said to have led to his satisfaction that they affected or tended to
affect adversely the security of the whole State as well
as 1he
C
maintenance of public order ?
If such !l construction of s. 3(2) were ito be accepted, it must
lead to the result 1hat every activity falling under any of the clauses
(a) to (e) !!lUSt be said to be one which actually affects or tends
D
to affect both the security of the State as well as public order. ln
that case des_!ruction of a private school, however, small in size, or
an oflioe of a village officer, once it fall within sec. 425 of the
Penal Code, or committing or instigating an offence falling und.~~
cl. ( d), qr cl. (e) affecting or tending to affect public order mus'':
also be regarded as affecting or tending to affect the security of the
I!
State and also as leading to the satisfaotion of the detaining authority that it d~s or is likely to do.
What sub-sec. (2) of sec. 3 does is that it consido~rs any one
of the activi'!.ies there enumerated as adversely affecting or likelv
to affect either the· security of the State or public order, and bars
a challen~e !hat by its very nature it could not possibly lead anv
reasonable person to the satisfaction required by sub-sec. ( 1). U;e
of or instigating to use a lethal weapon for the purpose mentionecl
in cl. (a) (i) would be a ground for detention if it either affects c:·
is likely to affect adversely either the security of the State or public
order, depending upon the potentiality and the extent of the act
in question. Such use or instigation confined to a small number
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of persons or area might affect only public order. On a State-wide
potentiality, it might affect adv~rsely even the security of the Stllle.
Indeed, such a distinction is expressed in sub-els. (i) and (ii) of H
cl. (a) itself, The same can be said of all other activities set out
in the other clauses. Under cl. ( c), causing insult to the national
A
ANANTA MUKH! v. WEST BENGAL (Khanna, J.)
391
flag or any other object of public veneration is regarded by that
clause as acting in a manner prejudicial to the security of the State
or the maintenance of public order depending upon the circumstances, the reach or the potentiality of the act in question. Such
an insult on a vast scale simultaneousiy commi'lted might have the
B effect of creating an upsurge in the whole State and thus affect the
security of the State, let alone the public order. Bll't, irrespective
of such potentiality, the clause cannot mean that such an act by
itself and without anyithing more must be deemed to fall under the
mischief of both the kinds: The result of accepting such a con-
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struotion would mean that once an act falls under any of the clauses
(a) to ( e), even if it affects or is likely to affect public order only
must also be held to affect or likely to affect the security of the
State, thus, ~otally wiping off l!he difference between the two coucepts and their respective areas of influence. That could not be
the intention underlying sub-sec. (2) of sec. 3. Taking all these
!D
circumstances into account 1together with the language of sub-sec.
(2), the conclusion must be that the detaining authority must
arrive at and express its satisfaction thirt the detenu's activities,
actual or likely in future, were such that they would affect either
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the security of the State or the public order or in some cases, by
reason of their reach. even both.
In this view, the construction urged· by counsel for the petitioner has to be accepted and it must be held that the use of the
disjunctive 'or' in the impugned order rendered ithe order of detention vague and indefinite, indicath•~. of the detaining authority
having merely reproduced mechanically the language of sec. 3 (1)
of the Act. The detention, therefore, has to be held to be bad.
The petition consequently must be accepted and the petitioner be
held entitled to his liberty forthwith.
Order accordingly.
Khamlll, J. This
is a petition through jail under article
32 of the Constitution of India for the issuance of a writ of
habeas corpus by Anania Mukhi alias Ananta Hari who has been
ordered to be detained under section 3 of West Bengal (Prevention of Violent Activities) Act, 1970 (President's Act No. 19
of 1970), hereinafter referred to as the Act.
392
SUPREME COURT REPORTS
[1972] 3 s.c.R.
The order of detention which was made against the petitioner A
reads as under :
ORDER
No. 97/C
Dated 24-4-71
Whereas I. am satisfied with respect to the person
known as Shn Ananta Mukhi @ Ananta Hari son of
Gobardhan @ Gurai of Antpara, Chakbazir, P. S.
Deb~a, Dt., Midnapore
that
with a view
to preventing
h1!11 from acting in any
manner prejudicial
to the s.ec~nty of the State or the maintenance of public
order, 1t 1s necessary so to do, I therefore in exercise
of the powers conferred by sub-section ( 1) read with
sub-section (3) of section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (President's
Act No. 19 of 1970) make this order directing that the
said Shri Ananta Mukhi @ Ananta Harl be detained.
Given under my hand and Seal of office.
Sd/- District Magistrate
Midnapore
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Soon after the detention order, the petitioner was found to be
•lbsconding.
He was arrested on May 5, 1971 and was served
with the order of detention along with the ground of detention
and the vernacular translation thereof on the same day.
On
,\pril 26, 1971 the District Magistrate of :\1idnapore reported to E
the. State Government about the making of the detention order
rlgainst the petitioner together with the grounds of detention and
other necessary particulars.
The said report and
particulars
were considered by the State Government and ori May 4, 1971
the detention order was approved by the State Government. On
the same day the State Government submitted a report to the
Centrd Government together with the grounds of detention and
0ther necessary
particulars.
The case of the
petitioner was
place<l by the State Government before the Advisory Board on
June 3, 1971.
In the meanwhile, on May 20, 1971 the StatE
Government received a representation of the petitioner dated
\fay 13, 1971. The s~.'.~ representation was considered by the
State GoY('r;iment and was rejected as per order dated June 2.
l 971.
The representation of the petitioner was then forwarded
to th(; Advisory Board.
The Advisory Board after considering
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the material before it, including the representation of the petitioner and after hearing him in person, sent its report to the
State Government on July 8, 1971. Opinion was expressed by
the Advisory Board that there was sufficient cause for the detenH
tion of the petitioner.
By an order dated July 16, 1971
the
State Government
confinned the
order of
detention of th".
re-:itioner.
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ANANTA MUKHI v. WEST BENGAL (Khanna, J.)
393
The petition has been resisted by the respondents and the
affidavit of Shri Manoranjan Dey, Assistant Secretary,
Home
(Special) Department, Government of West Bengal has been
filed in opposition to the petition.
We have heard Mr. R. K. Jain who has argued the case
llmicus curiae on behalf of the petitioner and Mr. G. L. Mu]>hoti
on behalf of the State.
One of the contentions advanced by
· Mr. Jain is that the detaining authority has taken into consideration facts extraneous to section 3 of the Act in making the order
of detention, and therefore the said order is illegal. In this respect we find that in the grounds of detention which were supplied
to the petitioner under sub-section ( 1) of section 8 of the Act,
the following particulars were mentioned :
"(1) That on 4-10-69, at about 21-30 hrs., you
along with 50/60 Naxalite supporters being am1ed with
lethal weapons raided the house of Shri Pulin Bihari
Manda! of Bhuiyabasan, P. S. Debra in order to kill
him. The house owner somehow managed to save his
life. You and your associates then looted cash, ornaments,
utensils and other
properties worth
about
Rs. 10, 000 from the house.
(2) That on 8-11-69, at about 20.00 hrs., you
along with 20/22 Naxalite workers a1n1ed with lethal
weapons raided the house of Shri Bistu Pada Bhuiya of
Radhakantapur, P. S. Debra and killed his two brothers
named Madan Bhuiya and Kshudiram Bhuiya by sharp
cutting weapons. You and your associates also looted
ornaments and other articles from the house."
lt would appear from the above that according to the grounds
of detention, the petitioner along with 50 / 60 other persons armed with lethal weapons raided the house of Pulin Bihari Mandal
cm October 4, 1969 at night time and looted cash, ornaments,
utensils and other properties worth Rs. 10,000 from the house.
It is further alleged that on November 8, 1969 at about 10 p.m.
1he petitioner along with 20 /22 associates armed with
lethal
weapons raided the house of Bistu Pada Bhuiya of Radhakanta,
pur and killed his two brothers Madan Bhuiya and Kshu,:iram
Bhuiya by sharp cutting weapons and also looted m;!)amentE md
other articles from the house.