K. J. VAIDYA J.-, J. ( 1 ) BY this Habeas-Corpus petition under Article 226 of the Constitution of India the petitioner has brought under challenge the impugned order of detention dated 17. 9. 1994 passed against him in exercise of powers under Section 3 of the Gujarat Prevention of Anti-Social Activities Act 1985 (for short PASA) by the Police Commissioner Rajkot City interalia praying for quashing and setting aside the same and to set him at liberty forthwith. The petitioner came to be detained as a bootlegger. ( 2 ) MR. Anil S. Dave the learned advocate appearing for the petitioner while challenging the impugned order of detention has raised two contentions. Firstly placing reliance upon two decisions of the Supreme Court rendered in case of (i) Mustakmiya Jabbarmiya Shaikh vs. M. M. Mehta Commissioner of Police and Ors. reported in 1995 (3) SCC 237 and (2) Piyush Kantilal Mehta vs. Commissioner of Police Ahmedabad reported in AIR 1989 SC 491 it was contended that since the fact-situation in said two cases allegedly disturbing the public order was held to be disturbing the law and order only is virtually the same as found from the alleged grounds of detention in the present case the impugned order of detention deserves to be quashed and set-aside atonce on that ground alone. Mr. Dave further submitted that in case this Court was not inclined to accept his aforesaid first contention then having regard to the fact that one of the copy of the material documents supplied to the petitioner was illegible in absence of adequate communication of the material ground of detention the petitioner having been denied his Constitutional right to make an effective representation his said precious right to that extent stands infringed under Article 22 (5) of the Constitution of Inida and accordingly therefore the petitioners further and continued detention should be declared illegal and unconstitutional. 2. 1 Making good the aforesaid first contention Mr. Dave has invited attention of this Court to the alleged grounds of detention where as many as 10 Prohibition cases appear to have been registered against the petitioner at Rajkot Taluka Police Station. All these offences were registered right from the year 1992 till the year 1994 under various sections of the Bombay Prohibition Act 1949 Mr. Dave has invited attention of this Court to the alleged grounds of detention where as many as 10 Prohibition cases appear to have been registered against the petitioner at Rajkot Taluka Police Station. All these offences were registered right from the year 1992 till the year 1994 under various sections of the Bombay Prohibition Act 1949 Mr. Dave thereafter has also invited the attention of this court to the statements of as many as five witnesses who is unmistakable terms have apprehended danger to their respective life and liberty from the petitioner in case their identity was disclosed to him by giving out their names and addresses. Thereafter Mr. Dave has actually read the contents of the statements of those five witnesses and submitted that the allegations made therein are identical one as that of the statement of witnesses relied upon in case of Piyush Kantilal Mehta and Mustak Miya (supra) and in that view of the matter since in those decisions it has been held that the alleged activities pertain to the law and order and not the public order it was beyond the scope and power of the Detaining Authority to pass an order of detention under PASA in the instant case also2. 2 Thereafter making good the second point Mr. Dave pointed out that since one of the copy of the material documents at page-16 supplied to the petitioner on the basis of which the impugned order of detention came to be passed was ex-facie illegible his precious right to make an effective representation under Article 22 (5) of the Constitution of India stands violated and accordingly therefore his further continued detention he declared as illegal and unconstitutional. In support of this contention Mr. Dave has relied upon the decision of this Court rendered in case of Pukhrajbhai vs. District Magistrate Surat reported in 32 (1991) GLR 725. ( 3 ) MR. M. R. Rawal the learned AGP appearing for respondents vehemently opposing the first contention submitted that the order of detention is passed on the material available on record whic according to him was sufficient enough to hold that the alleged illegal activities were prejudicial to the maintenance of the public order as it squarely fell within the ambit of public order. ( 4 ) HAVING heard the learned advocates for the respective parties on going through the two Supreme Court decisions rendered in case of Mustak Miya Jabbarmiya Shaikh and Piyush Kantilal Mehta (supra) it appears that Mr. Dave has clicked the point to some extent but then the said click is not potential enough to allow this petition as could be seen from the following discussions and material relied upon for passing the detention order. Thus the matter unfortunately does not rest concluded here as Mr. Dave has clearly over-looked the decisions of the Supreme Court rendered in case of Mrs. Harprit Kaur vs. State of Maharashtra reported in AIR 1992 SC p-979 relied upon by Mr. Raval the learned AGP. This decision of the Supreme Court till today is neither reported to be over-ruled nor distinguished in any other manner for the purpose of keeping it out of consideration its commanding binding effect upon this Court This decision while discussing as to which activity can be said to constitute the breach of public order has further gone to the extent by holding that where prosecution case fails because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused obviously the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis it is the society which suffers. In order of have further clean and wider perspective of this observation of the Supreme Court it is desirable to have a brief look at the relevant paragraph Nos. 17 and 18 on page 984 which read as under:-17 Crime is a revolt against the whole Society and an attack on the civilization of the day. Order is the basic need of any organised civilised society and any attempt to disturb that order affects the society and the community. The disturbance of public order is one of degree and the extent of reach of the activity in question upon the society. In then essential quality the activities which affect law and order and those which disturb public order may not be different but in their potentiality and effect upon even tempo of the society and public tranquillity there is vast difference. In then essential quality the activities which affect law and order and those which disturb public order may not be different but in their potentiality and effect upon even tempo of the society and public tranquillity there is vast difference. In each case therefore the Courts have to see the length magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of public order or only law and order. 18 There is no gain-saying that in the present state of law a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt. Where the prosecution is unable to lead evidence to prove its case the case fails though that failure does not imply that no crime had been committed. Whether the prosecution case fails because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused obviously the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activity of a detenu have therefore to be judged in the totality of the circumstances to find out whether those activities have any prejudicial effect on the societys a whole or not. If the society and not only an individual suffers on account of questionable activities of a person then those activities are prejudicial to the maintenance of the public order and are not merely prejudicial to the maintenance of law and order. 4. 1 Now bearing in mind the aforesaid observations of the Supreme Court if we peruse the statements of five witnesses each one of them in their last paragraph in an unmistakable terms has stated that the petitioner was Dada meaning thereby a head-strong fercious person and accordingly if they dare file a complaint against him then in that case they would be either killed and/or their hands and legs would be fractured. It is because of this terrible breath choking fear that the witnesses have dared not to make a complaint anywhere. It is because of this terrible breath choking fear that the witnesses have dared not to make a complaint anywhere. Not only that but they have not disclosed this story to even their other acquaintances These witnesses have further stated that it was only when the police officer recording their statements gave assurance that their statements were taken in confidence and names and addresses will not be disclosed to the petitioners that they volunteered to come forward to give their respective statements Keeping in mind the gripping fear complex of the witnesses the detaining authority quite justifiably claiming privilege under Section 9 (2) of PASA while giving copies of these to the detenu have discreetly refrained from disclosing their names and residential and/or business and/or place of service addresses. In this view of the matter though prima facie the other allegations regarding anti-social activities of the petitioner disturbing the public order may not be made out in view of the two decisions of the Supreme Court namely Mustak Miya Jabbarmiay Shaikh and Piyush Kantilal Mehta (supra) however at the same time bearing in mind firstly the nefarious boot-legging activities involving the petitioner in as many as 10 prohibition cases secondly reading the statements of five witnesses and thirdly the alleged apprehended danger to the life and limb of witnesses at the hands of the petitioner if their names and addresses are disclosed in entirety and as a whole it is indeed not possible for this Court so to say that the decision rendered in the case of Harprit Kaur [mrs. ] (supra) in particular the observations made in paragraphs 17 and 18 do not cover rather squarely cover the fact situation of the present case bringing it within the fold of the breach of public order. Mr. Dave while attempting to distinguish the case of Harprit Kaur [mrs. ] (supra) in particular the observations made in paragraphs 17 and 18 do not cover rather squarely cover the fact situation of the present case bringing it within the fold of the breach of public order. Mr. Dave while attempting to distinguish the case of Harprit Kaur [mrs. ] (supra) has invited the attention of this Court to the latest judgment of Mustak Miya Jabbarmiya Shaikh (supra) wherein while making a passing reference to the facts of Piyush Kantilals case (supra) it has been quoted that:- It has been alleged that the four witnesses have stated in their statements that the detenu-petitioner is a head-strong fierce and habitual criminal and therefore nobody comes forward to complain against him and the said witnesses have made a request not to disclose their names and identity for fear of the petitioner and therefore the names and identity of the witnesses have not been disclosed in public interest under Section 9 (2) of the Act. 4. 2 On the basis of this Mr. Dave further submitted that the decision of the Supreme Court rendered in the case of Harprit Kaur [mrs. ] vs. State of Maharashtra (supra) has lost all its significance and in that view of the matter this Court should read the relevant paras 17 and 18 of the said judgment as if it has been written off. This contention of Mr. Dave was vehemently opposed by Mr. Rawal the learned AGP for the respondents placing reliance upon two Supreme Court decisions rendered in case of (i) H. H. Maharaja Madhavrao Scindia and Ors. vs. Union of India AIR 1971 SC P-530 and (2) Union of India vs. Additional Magistrate Jabalpur AIR 1976 SC 1207 . Out of the these two Supreme Court judgments the first one is of 11 Honble Judges while the second one is of the Constitutional Bench comprising of five Honble Judges. In the first judgment in the case of Madhavrao Scindia vs. Union of India (Supra) in substance in last six lines of para-138 at page 578 it has been held that: -. . . . It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court divorced from its context as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. . . . It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court divorced from its context as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. Similarly in other case of Union of India vs. Additional District Magistrate Jabalpur (supra) in para 546 at page-1377 the Supreme Court while crystalising the point in substance has held to quote: ( 5 ) MOREOVER it must be remembered that when we are considering the observations of a high judicial authority like this Court the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations even though expressed in broad terms in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand. ( 6 ) THE aforesaid two judgments of the Supreme Court have sounded enough sound caution and provided guidelines as to how indeed the High Court in the first instance is expected to conduct itself while appreciating the ratio of the Supreme Court decision and thereafter in the second instance apply the same to fact of the case at its hand. Accordingly bearing in mind the aforesaid guidelines to accept the submissions of Mr. Dave that while appreciating the ratio of the judgment in the case of Mustakmiya Jabbarmiya Shaikh (supra) this Court should hold that since the same was latest in point of time the decision rendered in case of Harprit Kaur [mrs. ] (supra) was deemed to have been considered and accordingly particular observations made in paras 17 and 18 of the said judgment have been over-ruled is something which is totally forbidden and impermissible to be accepted by this Court The precise reason for this view is the-point aspect which was in focus before the Supreme Court in the case of Harprit Kaur [mrs. ] vs. State of Maharashtra namely. ] vs. State of Maharashtra namely. where the prosecution case fails because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused obviously the crime would go unpunished and criminal would be encouraged in ultimate analysis it is the Society which suffers. . . was not in the least focus there when the Supreme Court was called upon to decide the case of Piyush Kantilal Mehta vs. Commissioner of Police Ahmedabad and Mustakmiya Jabbarmiya Shaikh (supra ). Now despite this indisputable position merely because in Mustakmiyss case (supra) the Supreme Court while making some casual reference to the facts of the case has referred to privilege under Section 9 (2) claimed by the Detaining Authority that by itself is not sufficient to lead away this Court to accept the contention of Mr. Dave. Had indeed this point been squarely in focus before the Supreme Court and the Supreme Court in its turn had scored it off and given go-bye to whatever has been observed by the Supreme Court itself in case of Mrs. Harprit Kaur then this Court was bound to accept to accept the submission made on the point by Mr. Dave. But that is precisely not the case here. In this view of the discussion since the view taken by the Supreme Court in case of Mrs. Harprit Kaur (supra) very much prevails as a good law till today and this Court accordingly is duty bound to follow and uphold the same. In this view of the matter though prima facie the activities alleged against the petitioner of beating and terrorizing few individuals (witnesses) may not fall within the purview of the activities as prejudicial to the maintenance of public order but at the sametime reading the said statements of witnesses alongwith the threat administrated to them of taking their lives and/or causing grievious hurt of them in event of their reporting the illegal activities to the police cannot be toned-down to mere breach of law and order as it has indeed to immediate reach and wider impact upon the public order as viewed by the Supreme Court in case of Mrs. I Harprit Kaur (supra ). I Harprit Kaur (supra ). The reason is to terrorise a witness making him totally impotent and disabled one even to talk to the friends and relatives about assault upon him and harassment apart from filing a complaint itself goes to the very root of destroying the Administration of Justice and thereby has the widest grave repercussions disturbing the public order. When that is so it is not possible for this Court to disregard the observations made in paras 16 and 17 of Harprit Kaur [mrs. ] vs. State of Maharashtra (supra) and agree with Mr. Dave that the alleged activities of the petitioner do not constitute prejudice of the public order. Under the circumstances the dust and din raised by Mr. Dave centering around his first point having failed to obscure the judicial vision of this Court as regard the breach of public order and having held that fear of retaliation entertained by the witnesses do constitute the breach of public order this Court must sustain as of duty the impugned order of detention. ( 7 ) MR. Dave not losing his heart on not taking this Court with him on the first point has nonetheless vehemently persisted in pressing the second contention. Here it must be sated that since material document in question on the basis of which impugned order of detention came to be passed was illegible and further still since no counter-affidavit has been filed controverting the same petitioners precious right to make effective representation on the said counts stand infringed and accordingly the further continued order of detention deserves to be declared unconstitutional. This view is clearly supported by the decision of this Court rendered in case of Pukhraj vs. ADM Surat (supra ). When the learned AGP Mr. Raval was confronted with this point he after carefully examining the said documents was not able to satisfy this court that the contention raised by Mr. Dave had no substance. This Court has also perused the said document. When the document in question is to be in part little hard on eye and the part of which is wholly illegible the embarassment felt by the petitioner in making an effective representation is quite understandable and cannot be ignored or under-estimated. Dave had no substance. This Court has also perused the said document. When the document in question is to be in part little hard on eye and the part of which is wholly illegible the embarassment felt by the petitioner in making an effective representation is quite understandable and cannot be ignored or under-estimated. In this view of the matter the illegibility of the document as described above clearly goes to prima facie establish that the petitioner has been denied his precious right guaranteed under Article 22 (5) of the Constitution of India to make an effective representation. Once this position is accepted the Court must declare the further and continued detention of the petitioner as illegal and unconstitutional. Nothing other an further has been urged by the learned AGP Mr. Raval disputing this legal position. In view of the aforesaid discussion this petition deserves to be allowed and is allowed accordingly. ( 8 ) IN the result this Special Civil Application is allowed. The impugned order of detention is hereby quashed and set-aside. The petitioner is ordered to be released forthwith unless his presence is so required in jail in connection with any other pending proceeding against him. Rule made absolute. Petition Allowed. .