JUDGMENT I. MAHANTY, J. — In this writ petition, the petitioner has sought to challenge the detention order No.83/C dated 17.04.2010 passed by the Collector and District Magistrate, Keonjhar-opposite party No.2 (hereinafter referred to as the “Detaining Authority”) in exercise of power under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as ‘the Act’) directing his detention in jail custody. 2. The facts and circumstances giving rise to the present writ petition are that the petitioner is facing trial in eight criminal cases registered as Joda P.S. Case Nos. 135 dated 19.09.2003, 181 dated 20.11.2003, 166 dated 17.09.2008, 234 dated 19.12.2008, 17 dated 23.01.2009, 16 dated 05.02.2010, 23 dated 14.02.2010 and 31 dated 04.3.2010 apart from two station diary entry Nos.136 dated 06.03.2010 and 138 dated 06.03.2010. 3. Mr. U.C. Pattnaik, learned counsel appearing for the petitioner-detenu, inter alia, raised the following contentions :- (i) That the Detaining Authority while passing the impugned order of detention dated 17.4.2010 has not recorded her subjec¬tive satisfaction with cogent material to the effect that the petitioner was likely to be released on bail in connection with Joda P.S. Case No.23 dated 14.2.2010 while the application for bail was pending consideration before the learned Additional Sessions Judge (FTC), Champua and the bail applications in other cases had not been considered. (ii) (a) That the Detaining Authority has not recorded her sub¬jective satisfaction with regard to the maintenance of public order vis-a-vis the alleged criminal activities cited in the Grounds of Detention since it is contended that the same was not relevant to the maintenance of ‘public order’. (b) That in the case of Magan Gope v. State of West Bengal, reported in AIR 1975 SC 953 , the Hon’ble Supreme Court while dealing with the case of a smuggler came to hold that the smug¬gling activity attributed to the detenu was not an activity which was prejudicial to the maintenance of ‘public order’. 4. Mr. R.K. Mohapatra, learned Government Advocate appear¬ing on behalf of the State on the other hand submitted that no fault can be found with the order of detention, since the said order has been confirmed by the Government of Orissa in exercise of its power under Section 12(1) of the Act on reaching a subjective finding that there was sufficient cause for detention of the petitioner, the petition is liable to be dismissed. 5. Mr. 5. Mr. Mohapatra, highlighting the facts of the criminal cases referred to in the grounds of detention, inter alia, stated that the petitioner-detenu had become a menace to the society, particularly in the district of Keonjhar and it is due to leader¬ship given by the petitioner there were rampant illegal mining activities occurring within the State of Orissa and in particular in the district of Keonjhar and the petitioner was one of the gang leaders under whose instruction, advice and support such rampant illegal mining and transportation of ore were occurring and the people in the locality were in fear of the petitioner, who was threatening to such an extent that no one was willing to come forward to give evidence against him. Further the activities of the petitioner and his gang men in threatening and attacking the officers of the mining department as well as the police officials led to such a situation that there were chaos and panic in the minds of the people of the district of Keonjhar and there¬fore there was necessity of passing of the detention order against the petitioner under the National Security Act, 1980. 6. So far as first contention is concerned, we are of the considered view that clearly in the order of the detention dated 17.4.2010 the Detaining Authority has recorded her subjective satisfaction with cogent material to the effect that the peti¬tioner was likely to be released on bail. In this respect it becomes relevant herein to take note of the finding of the De¬taining Authority in the grounds of detention, which reads thus :- “You were arrested with much difficulty by the Police on 21.03.2010 at 7.30 P.M. in connection with Joda P.S. Case No.23 dt. 14.02.10 U/s. 379/411/427/307 IPC, 21 MMDR Act and forwarded to the Court of JMFC, Barbil on 22.03.10. As per the orders of the learned JMFC, Barbil you were put into Sub-jail, Barbil i.e. the intermediate judicial custody. You tried your level best to go out on bail but the same was rejected by the Hon’ble Court. Subsequently, you have filed bail application for your release on bail in the Hon’ble Court of Addl. Sessions Judge, FTC, Champua and the Hon’ble Court has passed order for hearing bail applica¬tion on 07.04.10. The Hon’ble Court is competent enough to grant him bail. There is possibility of your release on bail.” 7. Subsequently, you have filed bail application for your release on bail in the Hon’ble Court of Addl. Sessions Judge, FTC, Champua and the Hon’ble Court has passed order for hearing bail applica¬tion on 07.04.10. The Hon’ble Court is competent enough to grant him bail. There is possibility of your release on bail.” 7. In the case of Union of India v. Paul Manickam and Anr. AIR 2003 SC 4622 the Hon’ble Supreme Court considered the ques¬tion whether a person who is already in jail can be detained under the National Security Act. This issue has already been dealt with by the Hon’ble Supreme Court in various earlier judgments and after considering the same the Hon’ble Supreme Court in the aforesaid case held as under :- “Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision in this regard must depend on the facts of the particular case.. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into ac¬count while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likeli¬hood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activi¬ties, the detention order can be validly made. Where the deten¬tion order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated .... Where the deten¬tion order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated .... The principles were set out as follows : even in the case of a person in custody, a detention order can be validly passed : (1) if the authority passing the order is aware of the fact that he is actually in custody, (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would valid.” 8. The same proposition was dealt with by a Division Bench of this Court presided by Hon’ble Dr. B.S. Chauhan, C.J. (as his Lordship then was) in the case of Subrat Kumar Naik v. State of Orissa and others, reported in 2009 Cri. LJ 538 and after dis¬cussing all the various judgments of the Hon’ble Supreme Court on this issue came to conclude in Para-27 as follows :- “Considering the aforesaid facts, we are of the view that while passing the detention order, the Detaining Authority was fully aware of the fact that detenu was actually in custody. There was relevant material before the said Authority, on the basis of which he had reasons to believe that petitioner was likely to be released on bail or there was possibility of his being released on bail and on being released, he would indulge himself in the activities prejudicial to the public order and therefore, it was necessary to detain him in order to prevent him from indulging in such activities. Thus, passing the detention order was necessary in such circumstances” 9. Considering the aforesaid case laws and the facts emanated in the present case, we are of the view that the first contention of the petitioner stands to be rejected having no merit. 10. Thus, passing the detention order was necessary in such circumstances” 9. Considering the aforesaid case laws and the facts emanated in the present case, we are of the view that the first contention of the petitioner stands to be rejected having no merit. 10. In so far as the second contention is concerned, vis-a-vis the distinction between ‘public order’ and ‘law and order’ it is well settled in law that both the aforesaid terms have different and distinct concepts and there are number of authori¬ties of the Supreme Court drawing a clear distinction between the two. It would be appropriate at this stage to refer to a judgment of the Hon’ble Supreme Court in the case of Mrs. Harpreet Kaur Harvinder Singh Bedi v. State of Maharashtra and another, report¬ed in 1992 SC 979. In the aforesaid judgment the Hon’ble Supreme Court while considering such a contention held that the activi¬ties of the detenu could be said to be prejudicial only to the maintenance of “law and order” and not prejudicial to the mainte¬nance of “public order”. It was stressed by the learned counsel appearing for the detenu that the activities alleged against the detenu, however, reprehensible they may be, had no impact on the general members of the community and therefore could not be said to disturb the even tempo of the society and as such his deten¬tion from acting in a manner prejudicial to ‘public order’ was unjustified. 11. The Hon’ble Supreme Court in the aforesaid case led by Hon’ble Justice Dr. A.S. Anand, Judge (as his Lordship the then was) discussed various judgments rendered by it by the said date and came to conclude in paragraphs 17 and 18, as follows :- “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 organized civilized society and any attempt to disturb that order affects the society and the community. The distinction between breach of ‘law and order’ and disturbance of ‘public order’ is one of degree and the extent of reach of the activity in question upon the society. In their 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 a vast difference. In their 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 a vast difference. In each case, therefore, the Courts have to see the length, magnitude and intensity of the question¬able activities of persons 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. 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 un-punished 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 activities of a detenu have, therefore, to be judged in the totality of the cir¬cumstances to find out whether those activities have any prejudi¬cial effect on the society as a whole or not. If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of ‘public order’ and are not merely prejudicial to the maintenance of ‘law and order.” After laying down the principles of law to distinguish the term ‘public order’ from ‘law and order’, their Lordships consid¬ered the facts of the said case and came to its conclusion in Para-21. The relevant portion thereof reads as follows :- “....... The evidence of these witnesses shows that the detenu was indulging in transporting of illicitly liquor and distributing the same in the locality and was keeping arms with him while transporting liquor. The relevant portion thereof reads as follows :- “....... The evidence of these witnesses shows that the detenu was indulging in transporting of illicitly liquor and distributing the same in the locality and was keeping arms with him while transporting liquor. The activities of the detenu, therefore, were not merely “bootlegging” as was the position in Om Prakash, ( AIR 1990 SC 496 ), Rashidmiya, ( AIR 1989 SC 1703 ) and Piyush Kantilal Mehta’s cases, ( AIR 1989 SC 491 ) (supra) but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies. The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer. The activi¬ties of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation of Section 2(a) of the Act and it therefore, follows as a logical consequence that the activities of the detenu were not merely prejudicial to the main¬tenance of ‘law and order’, but were prejudicial to the mainte¬nance of “public order”. The first argument raised by the Dr. Chitale against the order of detention, therefore, fails.” 12. The next contention raised by the petitioner was based placing reliance on the judgment in the case of Magan Gope (supra). Reliance was placed by the learned counsel for the detenu on the aforesaid judgment in order to contend that an act of smuggling by itself could at best amount to an act affecting public order but not prejudicial to the maintenance of law and order. 13. Upon perusing the judgment as stated herein above in Para-12, the Hon’ble Supreme Court presided by Hon’ble Shri Justice R.S. Sarkaria, J. came to conclude, as follows :- “..... There is absolutely no mention that any scare was caused in the locality. Nor is it alleged that the detenu or his associates were armed with any deadly weapons or that their acts had caused panic and terror among the people of the locality. The incident was confined to the detenu and his associates on one hand and the Home guards who checked them on the other. Clearly therefore, it was not an activity which was prejudicial to the maintenance of public order. The incident was confined to the detenu and his associates on one hand and the Home guards who checked them on the other. Clearly therefore, it was not an activity which was prejudicial to the maintenance of public order. At the most it could be said to be an activity affecting law and order....” 14. While arriving at the aforesaid conclusion on the facts as noted herein above, the Hon’ble Supreme Court hastened to add a warning to the following effect :- “.... We will, however, hasten to add that this broad propo¬sition as to the distinction between an act of ‘smuggling’ and an act affecting the ‘public order’ is not an abstract or absolute proposition of law. Cases are conceivable where the act of smug¬gling may be accompanied by such violence and disorder that it throws out of gear the even tempo of the life of the community in the locality or disturbs public tranquillity”. 15. Now it becomes relevant to deal with the basis facts of this case. In the ground of detention served on the detenu, the Detaining Authority has noted the following :- GROUNDS OF DETENTION It has been brought to my notice that your criminal and antisocial activities have assumed an alarming proportion due to which the public order in Joda Police Station has been adversely affected and your presence in the locality is likely to endanger the lives and property of the general public. Hence, I Debjani Chakrabarti, I.A.S., District Magistrate, Keonjhar, am satisfied on the basis of the grounds mentioned below that with a view to preventing you from acting in a manner prejudicial for mainte¬nance of public order, it is necessary to make your detention under National Security Act, 1980 since the ordinary laws of the land are not sufficient to curb your antisocial activities. You are a die hard anti-social and smuggler of Iron and Manganese ores from Mining areas/Reserve Forests of Keonjhar district. Earlier you have indulged yourself in a series of vio¬lent incidents to terrorize the local people in order to continue your operation in the area without any hindrance. Due to fear of life, the public did not dare to report against your illegal activities or adduce evidence against you. You have tried to establish your hegemony in the area, in order to run your illegal business by means of armed encounters. Due to fear of life, the public did not dare to report against your illegal activities or adduce evidence against you. You have tried to establish your hegemony in the area, in order to run your illegal business by means of armed encounters. The people of the area are so panic stricken that no one dares to raise their finger against your activities or come forward to allege against you before police. Taking advantage of the availability of iron ore abundantly on the surface of Joda area, you have organized the poor villag¬ers who are staying in the vicinity to raise mineral ores. Over a period of time you have became a iron/manganese mafia and started physically opposing the mine owners and the security staff in order to carry on your illegal transportation of iron/manganese ores from the lease areas as well. In order to carry out your illegal mining you along with your associates are terrorizing the poor villagers, to take up hazardous works like blasting by using illegal explosives. Because of your previous antisocial and criminal activities you have taken advantage of it and became actively associated in the iron/manganese smuggling business. Due to your previous criminal record you did not come to the fore¬front and organized the smuggling as a mafia don. From the year 1998 to 2001, you and your associates were involved in gang war with that of your opponent group, Sambhu Giri and his associates. To monopolize the smuggling racket you have indulged in open confrontation with your opponents armed with lethal weapons in the busy areas of the Joda town and there¬by affecting public order seriously. Your activities have now reached to such a climax that you were determined to eliminate your rivals to establish your supremacy over them. However, because of timely police action, a major clash involving loss of lives has been averted. But due to such violent incidents, panic and chaos has prevailed in the area. The peace loving citizens of the area have suffered immensely due to your criminal activities. In the past you have been booked in a series of criminal cases and due to continuous incidents of breach of peace, public order was complexly disrupted in Joda and its neighbouring areas and to curb down your criminal activities, you were booked under Nation¬al Security Act, 1980 in the year 2001. In the past you have been booked in a series of criminal cases and due to continuous incidents of breach of peace, public order was complexly disrupted in Joda and its neighbouring areas and to curb down your criminal activities, you were booked under Nation¬al Security Act, 1980 in the year 2001. However, on being released from the detention, you again started your criminal activities of running illegal iron/manga¬nese business by terrorizing the local people and to gain suprem¬acy over your rivals. Despite getting opportunity for earnings livelihood in a bonafide way, you have actively associated yourself with antiso¬cial and goondas of Joda town and tried to earn illegally and by using unlawful means. Day by day, you have become a noted mineral smuggler in Joda and were able to earn a lot. You encircled yourself with the antisocial, minerals mafias of Joda town in a very inspired manner. There are a number of such instances in which, you have jeopardized the public tranquillity in Joda town area. You pose yourself as the “DADA” of the area and create sense of terror by your high-handedness and you are in the habits of committing crimes at public places. You have become the leader of a group of antisocial elements. Your other associates are namely, Dillip Ghose, Mata Jaiswal, Bapi Mohanty, Sailendra Jora, Ashok @ Sajan Das, Rajesh Munda and others who are also involved in various criminal cases. You possess a menacing personality and plan your acts of terror with ease great and use of arms like Bhujali, Lathi, Iron roads etc at public places to hack people quite blatantly and this has greatly disturbed the normal tempo of public life of the community and most definitely jeopardized public order and public tranquillity. You are known in the area for your nefarious activities. You do not hesitate to hurt people brutally, whosoever comes on the way of your work by attacking them with an intention to eliminate the person. From the year 2003 to 2010 you were involved in as many as eight criminal cases in which three cases are subjudice in the Court of law and five cases are pending for investigation. Besides, there are Station Diary Entries against you in Joda Police Station which speaks about your activities leading to serious disruption of public order.” 16. From the year 2003 to 2010 you were involved in as many as eight criminal cases in which three cases are subjudice in the Court of law and five cases are pending for investigation. Besides, there are Station Diary Entries against you in Joda Police Station which speaks about your activities leading to serious disruption of public order.” 16. From amongst various cases taken into consideration by the Detaining Authority, the cases at Serial Nos. 2, 4, 5, 6, 7 and 8 of the grounds of detention are taken into consideration. Basing on the materials available on record, it is quite evident there from that the petitioner-detenu is alleged to have been actively involved in illegal mining as well as transportation of iron ore. It also appears there from that the petitioner’s activ¬ities have been increased from time to time and the same has led to gang war as well as encouragement to the people living in remote villages through out the district of Keonjhar to indulge in rampant illegal mining/extraction of iron ore and Manganese ore. Apart from the same, there have been instances that the petitioner himself has been present at the spot where illegal extraction and loading of the iron ore and Manganese ore have been made on the vehicles arranged for and/or hired by the peti¬tioner. The record of the present case further indicates that the petitioner had no respect to the public order and also put the lives of police personnel as well as the personnel of the Mining department at great risk and that the petitioner was heavily armed while carrying out such activities. In present case at hand the activities of the detenu were not merely illegal mining/extraction/transportation of ore, but went, further clear¬ly adversely affected the tempo of the society by creating feel¬ing of insecurity amongst those who are likely to depose against him as also the law enforcement agencies. 17. Considering the aforesaid facts, we are of the view that the fear psychosis created by the detenu to various witness¬es is aimed at letting the crime go un-punished. Therefore, the activities of the petitioner squarely fall within the definition of the term “activities prejudicial to the public order” and therefore, we are of the considered view that it was necessary to detain him in order to prevent him from indulging in such activi¬ties. Therefore, the activities of the petitioner squarely fall within the definition of the term “activities prejudicial to the public order” and therefore, we are of the considered view that it was necessary to detain him in order to prevent him from indulging in such activi¬ties. Thus, passing of the detention order was necessary in such circumstances. 18. Accordingly, the writ petition stands dismissed. V. GOPALA GOWDA, C.J. I agree. Petition dismissed.