JUDGMENT 1. - In this petition for a writ of Habeas Corpus under Article 226 of the Constitution, the petitioner challenges the order of the District Magistrate, Tonk dated July 27, 1989 by which he has been detained under Section 3(2) of of the National Security Act, 1980 (hereinafter to be referred to as the Act or N. S. A.). 2. Material averments made by the petitioner in his petition may be noticed in brief. He is a resident of Uniara district Tonk. He was arrested on 26-7-89 for an under Sections 8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 by Police Kotwali, Tonk and was lodged in District Jail, Tonk. While he was in District Jail, Tonk as an under trial prisoner, the District Magistrate, Tonk passed the impugned order R-1) on 27-7-89 purported to detain him under Section 3/2 by virtue of the powers conferred on him under Sub-section (3) of Section 3 of the Act. The grounds of detention Annexure-4 were communicated to him on 29-7-89 along with the letter Annexure-3. He made representations against his detention but with no success. The order of the District Magistrate was approved by the State,,Government on 7-8-89. His case was put before the Advisory Board and in the opinion of the Board, there was sufficient cause for the petitioner's detention under the Act. The State Government there- after passed the order Annexure R 5 on 25-9-89 fixing the period of one year for the detention of the petitioner. The detention is challenged on the following grounds: (1) The District Magistrate. Tonk was not authorised to pass the detention order. No order under Sub-section (3) of Section 3 of the Act was ever issued by the State Government authorising the District Magistrate to exercise powers under Sub-section (2). and (2) The grounds of detention furnished to the petitioner do not make out a case that the petitioner was acting in any manner prejudicial to the maintenance of public order. 3. The petition was opposed by the respondents. The facts of the petitioner's arrest and his being detained under N.S.A. were admitted but it was denied that the District Magistrate was not authorised by the State Government under Section 3(3) to exercise the power under Sub-section (2) of the Act. 3. The petition was opposed by the respondents. The facts of the petitioner's arrest and his being detained under N.S.A. were admitted but it was denied that the District Magistrate was not authorised by the State Government under Section 3(3) to exercise the power under Sub-section (2) of the Act. It was stated that the State Government had issued order authorising the District Magistrate under Sub-section (3) to exercise the powers under Sub-section (2) of Section 3 of the Act. As regards the merits it was stated that the petitioner was a police history-sheeter who started his criminal career long back from June, 1979 and his criminal activities continued till he was arrested on 26-7-89 under the N. D. P. S. Act. He was involved in as many as 20 cases of various nature including assaults on individuals and police employees. He had become a menace in the locality and his activities were disturbing the current life and even tempo of the society. As such, his detention under the Act became necessary in order to prevent him from acting in any manner prejudicial to the maintenance of public order. 4. We have heard the learned counsel for the petitioner and the learned Additional Advocate General. We shall take up the contention raised at seriatim below.Re, I......................... 5. Taking the first contention, it was argued by Mr. Manzoor Ali that the State Government issued no order in writing under Sub-section (3) authorising the District Magistrates to exercise the powers under Subsection (2) of Section 3 of the Act. The contention has no substance. In exercise of the powers under Section 3(3) of the Act, the State Government has issued notice on May 30, 1989 published in the Rajasthan Gazette Extraordinary on the same day and thereby authorised all the District Magistrates in the State to exercise powers under Sub-section (2) of Section 3. The contention has no substance. In exercise of the powers under Section 3(3) of the Act, the State Government has issued notice on May 30, 1989 published in the Rajasthan Gazette Extraordinary on the same day and thereby authorised all the District Magistrates in the State to exercise powers under Sub-section (2) of Section 3. It would be useful to reproduce the aforesaid order:- x`g ( xzqi&9 ) foHkkx vkns'k t;iqj] ebZ 30] 1989 ,l0vks0 29 %& jk"V~h; lqj{kk vf/kfu;e] 1980] ( 1980 dk dsUnzh; vf/kfu;e la0 65 ) dh /kkjk 3 dh mi&/kkjk ( 3 ) ds v/khu 'kfDr;ksa dk iz;ksx djrs gq, jkT; ljdkj ,rn~nkjk jkT; ds leLr ftyk eftLVs~Vks dks mDr vf/kfu;e dh /kkjk 3 dh mi&/kkjk ( 2 ) esa of.kZr 'kfDr;ksa dk fnukad 1&6& 1989 ls 31 &8&1989 rd iz;ksx djus dk funsZ'k nsrh gSA la[;k i0 2(17)(1) x`g&5@80 jkT;iky ds vkns'k ls] vkj0 jked`".k] vk;qDr ,oa 'kklu lfpoA 6. In view of the aforesaid order issued by the State Government, the contention of Mr. Manzoor Ali does not survive. 7. However, a stand was taken by the learned counsel for the petitioner that an order under Section 3(3) of the Act can be issued only when the State Government is satisfied having regard to the circumstances prevailing that it is necessary to authorise the District Magistrate to exercise powers under Sub-sec. (2). In the aforesaid order, it has not been mentioned that the State Government was satisfied so as to authorise the District Magistrates to exercise powers under Sub- section (2).. It was argued that the omission of the word "satisfied" in the order is significant. The order issued by the State Government is thus not legal and proper. 8. We again find no substance in the contention of Mr. Manzoor Ali. It is not at all necessary that the satisfaction arrived at by the State Government for authorising the District Magistrates to exercise powers under Sub-section (2) of Section 3 should be mentioned or expressed in the order. Though, it may be desirable for the Authority to make a recital of satisfaction in the order, the absence of such a recital does not render the order void ab initio. In Swadesh Cotton Mills v. S.I. Tribunal (A.I.R. 1961 SC 1381) a similar situation arose before their Lordships. Though, it may be desirable for the Authority to make a recital of satisfaction in the order, the absence of such a recital does not render the order void ab initio. In Swadesh Cotton Mills v. S.I. Tribunal (A.I.R. 1961 SC 1381) a similar situation arose before their Lordships. h It was observed:- "The validity of the order therefore does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the marking of the order in consequence. It would therefore follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings (for example, by filing an affidavit) where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only except;on to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made." The same view was reiterated in Ganga Bishnu v. Calcutta Pinjrapole Society & others (A.I.R. 1968 SC 615) . 9. The position, therefore, comes down to this that it is not at all necessary that an order issued under Section 3(3) of the Act must contain a recital as to the satisfaction of the condition precedent. Such a recital is not at all necessary unless the statute specifically so requires. We are unable to read anything in Sub-section (3) of Section 3 that it is incumbent on the part of the State Government to make a recital as to the satisfaction in the order issued thereunder authorising the District Magistrate to exercise the powers under Sub-section (2) of Section 3 of the Act. 10. The learned Additional Advocate General has placed the concerned file of the Secretariat to show that the order under Section 3(3)was issued only after the State Government' was satisfied to do so taking the prevailing circumstances into consideration. The record of the Secretariat fully supports him on this count. We are, therefore, unable to accept the contention of Mr. Manzoor Ali that the District Magistrate was not competent to issue the detention order. The contention is rejected.Re. The record of the Secretariat fully supports him on this count. We are, therefore, unable to accept the contention of Mr. Manzoor Ali that the District Magistrate was not competent to issue the detention order. The contention is rejected.Re. 2.----- 11. It was contended that the various activities attributed to the petitioner in no way show that he was acting in any manner prejudicial to the maintenance of public order. It was argued that the s enumerated in the grounds of detention relates to the commission to various offences against the individuals. The activities communicated in these offences had or have no potentiality to disturb the current life or even tempo of the society. 12. In order to properly appreciate the contentions raised by the learned counsel it would be proper to have a look into the grounds of detention (Annx. 4). It contains a catalogue of 21 cases in which the petitioner was or is involved. A perusal of these grounds show that he was prosecuted in a case under Section 435 IPC in May, 1974. The trial ended in his acquittal. The second case was for an under Section 323 IPC and after investigation. a final report was given. The third case relates to an incident alleged to have taken place on 20-11-83. The petitioner along with many others was challenged for under Sections 147. 341 and 323 IPC in which he is still facing trial. The next case relates to an incident alleged to have taken place on 23-9-83. The police submitted a report under Section 107 Cr.P.C. against the petitioner and the proceedings was (sic) dropped by the Court. The next case relates to a complaint filed against the petitioner by police under Section 186 IPC in respect of an incident alleged to have taken place on 22-6-84. The case is still pending. The next case relates to a proceeding under Section 107 Cr.P.C. in respect of some incident dated 23-6-84. The proceeding was dropped on 8-7-85. The next case also related to a proceeding under Section 107 Cr.P.C. initiated in June, 1984 and dropped in July, 1985. The next case also relates to a proceeding under Section 107 Cr.P.C. initiated against the petitioner in August, 1984. It was dropped in July, 1985. The next proceeding is again under Section 107 Cr.P.C. initiated in August, 1984 and later on dropped by the Court. The next case also relates to a proceeding under Section 107 Cr.P.C. initiated against the petitioner in August, 1984. It was dropped in July, 1985. The next proceeding is again under Section 107 Cr.P.C. initiated in August, 1984 and later on dropped by the Court. The next case relates to a complaint filed by an A.S.I. against the petitioner for under Section 186/189 IPC in respect of an incident alleged to have taken place on 10-8-84. The trial is pending. The next case relates to a proceeding under Section 107 Cr.P.C. initiated in August. 183 and dropped in July, 1985. The next proceeding also relates to Section 107 Cr.P.C. initiated in March. 1985 and dropped in July, 1985. The next ground is that the accused-petitioner is facing trial in criminal case under Sections 323, 341, 353 and 189 IPC in respect of an incident alleged to have taken place on 19-9-85. The case is pending trial, in it judicial Court. The next proceeding initiated against the petitioner was that under Section 110 Cr.P.C. in June, 1985. It was also dropped. The next case relates to an under Section 354 IPC in respect of an incident alleged to have taken place on 2-7-86. The petitioner is facing trial in it. The next incident is alleged to have taken place on 31-8-88. The allegation is that the petitioner held out threats and abuses to the Station House Officer Guru Bakhan Singh. A note was made in the Rojnamacha' of police station but nothing further took place. The next ground relates to a proceeding under Sc. lion 107 Cr.P.C. initiated in February. 1988. The proceeding was dropped in September. 1988. The next ground is that the petitioner restrained and obstructed the Station House Officer, Uniara from discharging official duties. He was challaned under Sections 341 and 353 IPC in which the petitioner is facing trial. The next ground is that a proceeding under Section 110 Cr.P.C. was initiated against the petitioner in October. 1988 and that is still pending. The next proceeding relates to Section 107 Cr.P.C. initiated against the petitioner which is still pending. The next ground disclosed is that the proceeding under the Control of Gundas Act is pending against the petitioner since 21-10-88 before the A.D.M. Tonk. The next case relates to a proceeding under Section 107 Cr.P.C. which is pending against him since 31-10-88. The next proceeding relates to Section 107 Cr.P.C. initiated against the petitioner which is still pending. The next ground disclosed is that the proceeding under the Control of Gundas Act is pending against the petitioner since 21-10-88 before the A.D.M. Tonk. The next case relates to a proceeding under Section 107 Cr.P.C. which is pending against him since 31-10-88. The next ground is that the accused is facing trial in a case tinder Sections 353 and 504 IPC in connection with an incident alleged to have taken place on 10-1-89. The next case is that a proceeding under Sections 341, 323, 353, 332 and 336 IPC is pending investigation against the petitioner in respect of an incident stated to have taken place on 20-7-89. The next ground is that a complaint under Section 187 IPC is to he lodged against the petitioner.The last ground is that on 26-7-89 the petitioner was found in unlawful possession of 9 grams of contraband opium for which a case is under investigation at Police Kotwali, Tonk. 13. A perusal of the grounds of detention show that the petitioner is involved in 21 cases. Most of them are the proceedings under Section 107 Cr.P.C. and again many of them were dropped. The cases relating to the commission of offences are under Sections 147, 323, 341, 353 etc. One case is of course under Section 354 IPC. It is an admitted position that the petitioner has not been convicted in any criminal case nor has been bound down in any proceeding under the preventive sections of the Criminal Procedure Code. The offences are mainly of riots and using violence. The petitioner has been detained under Section "3 (2) of the Act. It would be useful to read it as under : "3(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 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 person be detained." 14. Here, in the instant case, the petitioner was detained with a view to preventing him from acting in any manner prejudicial to the maintenance of "public order". The contention of Mr. Manzoor Ali is that the activities attributed to the petitioner in the grounds of detention do not pose the problem of public order. Since the grounds of detention cover the various criminal cases pending against him and he is facing trial in many of them, his detention under the Act is not justified. The activities attributed to him relate to the offences committed against individuals, which may involve the problem of law and order, but certainly not of public order. 15. We have given our anxious consideration to the submissions of Mr. Manzoor Ali. 16. The question whether the activities of the detenu pose a problem of law and order or public order has been examined by their Lordships of the Supreme Court from time to time. Recently, in State of U.P. v. Hari Shankar Tiwari 1987 (2) S.C.C. 490 , their Lordships after noticing various pronouncements made earlier, observed as under in paras 7 and 8 of the judgment - "Conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle. An act which may not at all be objected to in certain situations is capable of totally disturbing the public tranquility. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. No hard and fast rule can really be evolved to deal with problems of human society. Even possible situation cannot be brought under watertight classifications and a set of tests to deal with them cannot be laid down. As and when an order of detention is questioned. No hard and fast rule can really be evolved to deal with problems of human society. Even possible situation cannot be brought under watertight classifications and a set of tests to deal with them cannot be laid down. As and when an order of detention is questioned. it is for the court to apply the well known tests to find out whether the impugned activities upon which the order of detention is grounded go under the classification of public order or belong to the category of law and order." 17. In (4) Ashok Kumar v. Delhi Administration 1982(2) S.C.C. 403 , it was observed that it is the potentiality of the Acts to disturb the even tempo of the life of the community, which makes it prejudicial to the maintenance of public order. 18. Again in (5) Ramranjan Chatterjee v. State of West Bengal 1974(4) S.C.C. 143, it was observed by their Lordships that it is the length, magnitude and intensity of the terror wave unleashed by the activities of the detenu, which bring the case within the four-corners of the maintenance of public order. 19. In (6) Kannu Biswas v. State of West Bengal A.I.R. 1972 S.C. 1656 , it was observed by their Lordships as under : "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of public order ........is a question of degree and the extent of the reach of the Act upon the society. 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. as laid down in the above case, 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 tranquility of society undisturbed.' 20. In Hari Shankar Tiwari's case (supra) their Lordships observed that one has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or smaller circle. The act which may not at all be objected in certain situations is capable of totally disturbing the public tranquility. 21. In Hari Shankar Tiwari's case (supra) their Lordships observed that one has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or smaller circle. The act which may not at all be objected in certain situations is capable of totally disturbing the public tranquility. 21. The grounds of detention should have rational relation with the public order. They should have nexus with the object of maintaining public order. 22. Mr. Khan is right when he argued that the past conduct and antecedents of the detenu can be taken into consideration by the detaining authority in order to see whether the detenu is likely to act in a manner prejudicial to the public order, in future. In (7) Vashiudeen Ahmed v. District Magistrate, Aligarh A.I.R. 1981 S.C. 2166, their Lordships of the Supreme Court observed as under : "The past conduct of antecedent history of a person can appropriately be taken into consideration in making a detention order. It is indeed usually from prior events showing tendencies or inclination of a man that an inference is drawn whether he is likely in the future to act in a manner prejudicial to the maintenance: of public order. Of course, such prejudicial conduct or antecedent history should ordinarily be proximate in point of time and should have a rational connection with the conclusion that the detention of the person is necessary." 23. We are quite conscious that this Court is not sitting in appeal against the order of detention. We, therefore. cannot substitute our sati,faction for that of the subjective satisfaction of the detaining authority. What is required to be seen by this Court while hearing a petition of habeas corpus is that whether the detaining authority had applied his mind on the material supplied to him and there after passed the order of detention against the detenu. 24. As stated in Hari Shankar's case (supra) one has to turn to the facts of each case to ascertain whether the activities relate to the large circle or smaller circle. We should therefore, turn to the facts and examine the grounds of detention, which according to the authority posed the problem of maintenance of public order. 25. Out of 21 cases registered against the petitioner, as many as eight are under the preventive sections under the Criminal Procedure Code. We should therefore, turn to the facts and examine the grounds of detention, which according to the authority posed the problem of maintenance of public order. 25. Out of 21 cases registered against the petitioner, as many as eight are under the preventive sections under the Criminal Procedure Code. In most of them, the proceedings have been dropped and in none of them the petitioner has been bound down for keeping peace etc. The remaining 13 cases relate to under Sections 147, 323. 448, 504, 435, 354, 186, 189, 353 and 341 IPC. Under the case relating to the under Sections 448, 435 IPC the petitioner was acquitted. None of the offences alleged against the petitioner is non-bailable. All these cases relate to the offences committed against the individuals. As regards the police employees, the offences show that the petitioner put obstructions in discharge of their official duties. The offences under Sections 186. 353. 341 IPC are not offences of serious nature. In these cases also, it is the individual police employee in respect of whom the was alleged to have been committed by the petitioner. Of course there is a case under Section 354 IPC pending against the petitioner. The facts as stated in the grounds of detention are that the petitioner entered the house of one Kamlesh Kumar and tried to molest his sister Munni. This also relates to an individual. One of the case is that he was found in possession of 9 grams of contraband opium. 26. A perusal of the grounds relating to the commission of offences clearly reveals that they were committed against the specific individuals. Can it be said that these activities of the detenu in committing offences against individuals have the tendencies to disturb the maintenance of public order ? It is true, it is an individual who is first of all affected in the offences committed by a culprit. But this is not sufficient to detain a person under the Act. The s committed by the detenu must have tendency to disturb the orderly life of the general public, the normal life of the community and the even tempo of the society. Only then it can be said that the activities have the tendency to disturb the even tempo of the society. The s committed by the detenu must have tendency to disturb the orderly life of the general public, the normal life of the community and the even tempo of the society. Only then it can be said that the activities have the tendency to disturb the even tempo of the society. The incidents if created any problem, it was the problem of maintaining the law and order and not the problem of the maintenance of public order. The activities assigned to the detenu should have potentiality to disturb the public order or public tranquility. 27. In Tulshi Ram Patel's case (AIR 1981 SC 1466) it was stated that the situations which affect public order are graver than those which affect law and order. 28. In Arun Ghosh v. State of West Bengal a test was laid down by their Lordships to find out whether the activities are likely to disturb the even tempo of the society. The test laid down is does it lead to a disturbance of the even tempo and current life of the community so as to amount to a disturbance of public order or does it affect materially the individuals without affecting the tranquility of society." 29. In Gulab Mehra's case (1987 SC 2332) , their Lordships observed as under:- "Whether the act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if' so put as to disturb or dislocate the even tempo of the life of the community." 30. Thus the ratio of public order and law and order depends much upon the impact of the act. If the impact of the act is confined to individual only, it may be a matter of law and order But if the act has any impact upon a large section of the community, the act will fall within the realm of the public order. It is a question of degree and the extent of the impact of the act upon the society which is vital. 31. Reverting to the case in hand, we have seen that the activities attributed to the detenu relate to the offences committed against the individuals-whether private persons or police employees. It is a question of degree and the extent of the impact of the act upon the society which is vital. 31. Reverting to the case in hand, we have seen that the activities attributed to the detenu relate to the offences committed against the individuals-whether private persons or police employees. The activities attributed to the detenu do not suggest in the least that the normal life of the community and the even tempo of the society are likely to be affected. We fail to understand how the possession of 9 grams of contraband opium can create a problem of maintenance of public order. We are quite conscious and aware that we are not sitting in appeal against the impugned order of the District Magistrate. But we may reiterate that the grounds of detention furnished to the detenu must on the face show that they have the tendency to disturb the current life of the society. The activities attributed to the detenu do not have that potentiality and impact. We are, therefore, unable to maintain the impugned order of detaining the petitioner. 32. The proceedings under the preventive sections of the Criminal Procedure Code viz., 106, 115 and 151 were initiated against the petitioner. But proceedings have been dropped in most of the cases. The facts mentioned in the remaining proceedings show that the detenu held out threats to some individuals. These threats again affect individuals and have no tendency to disturb the even tempo of' the society or the current life of the community. We are, therefore, again unable to in maintain the impugned order. 33. The petitioner was a police employee. He has filed annexures XIII to XXIV. These documents relate to the period from June, 1979 to July, 1986. These documents are certificates showing that he had discharged his duties commendably. As a police employee his work was appreciated by his superiors. The certificates have been issued by the Police Superintendents of the different districts in the State. The petitioner was dismissed from service. He filed complaint Annx. XIII against the 10 persons all are police employees including the Dy. S. P.. Station House Officers, A. S. Is. and constables on 3.10.1988. Before that on 11.1.1985 his brother Mohd. Ibrahim addressed letter Annx. VI to the Prime Minister of India. The petitioner's wife received the acknowledgement of the letter Annx. VIII. In Annx. He filed complaint Annx. XIII against the 10 persons all are police employees including the Dy. S. P.. Station House Officers, A. S. Is. and constables on 3.10.1988. Before that on 11.1.1985 his brother Mohd. Ibrahim addressed letter Annx. VI to the Prime Minister of India. The petitioner's wife received the acknowledgement of the letter Annx. VIII. In Annx. VI, a complaint was made against the Station House Officer and other police employees, Police Station, Uniara that they were taking no action against a liquor contractor. The contractor was exhibiting blue films etc. without any licence. It appears that the petitioner and the member; of his family made such complaint from time to time against the local police and that invited their wrath and displeasure. The criminal complaint lodged against the police officers and the letters addressed to the Prime Minister could not be lost sight of or ignored while examining the detention of the petitioner. It is interesting to not, that on one hand the District Magistrate and the Superintendent of Police were issuing commendation certificates to the petitioner and on the other hand, his activities were later on taken as affecting adversely the maintenance of public order. Any way, we are of the opinion that the activities attributed to the petitioner pose no problem of the maintenance of public order and his detention tinder the N. S. A. is wholly unjustified. 34. In the result, we allow the petition and quash the impugned order (Annex. R. 1) dated 21.7.1989 passed by the District Magistrate, Tonk under the National Security Act, 1980. The detenu Babu Khan will be forthwith set at liberty, if not wanted in any other case.Petition allowed. *******