Rakesh Saksena, J:

1. By this petition under Article 226 of the Constitution of India, the petitioner prays for quashment of order dated 9th December, 2009 (Annexure P/4), passed by respondent No. 2/State of M.P. and to quash the order dated 30-9-2009, passed by respondent No. 3/District Magistrate, Bhopal and to revoke the detention order of petitioner's husband Mukhtar Malik-detenu.

2. The facts as borne out from the petition as well as from the return submitted by the respondents, in brief, are that the petitioner's husband Mukhtar Malik son of Annu Malik has been detained by virtue of the order dated 30-9-2009, passed by respondent No. 2/District Magistrate, Bhopal in exercise of powers conferred by sub-section (2) of section 3 of the National Security Act (hereinafter referred to as the 'Act' for short). This order was confirmed by order Annexure P/4 passed by respondent No. 2/State Government as per provision of under section 12(l) of the Act.

3. The detention of the detenu Mukhtar Malik is based on the grounds referred to in Annexure P/3 which are as follows :

HINDI MATTER 271614

4. It has also been mentioned in the detention order that the detention of the detenu is necessary for preventing his criminal activities, affecting the maintenance of public order and peace and tranquility of public at large.

5. Amongst other grounds, petitioner has challenged his detention mainly on two grounds; firstly that the grounds from number 1 to 26 were stale as they pertained to the offences alleged to have been committed by him since 7-6-1982 to 8-1-1997. They ought not to have been taken into consideration by the Detaining Authority for forming his subjective satisfaction for detention of the petitioner in the month of September, 2009 and, secondly that the grounds No. 27 and 28 were not of such nature as to disturb the public tranquility or affect the public at large. They merely pertained to the maintenance of law and order and not the public order, therefore, the detention of detenu was not valid.

6. Learned counsel for the petitioner submitted that there was no material on record from which it could be inferred that the District Magistrate or the State Govt. considered the material on record that the case against the detenu was such in which ordinarily penal law or the Criminal Procedure Code could not be exercised and that it was imperative to use the provision of the Act. He submitted that the registration of two offences of the incident dated 27-9-2009 and 29-9- 2009 was in fact because of business rivalry between detenu and the brother of two complainants namely Smt. Roshni and Ku. Shalini Mihani, Brother of these complainants is hardened criminal and had encroached upon the land belonging to detenu while he was in jail in connection with a case under section 302 of the Indian Penal Code. When the talks were going on for getting the said land vacated, false report was lodged.

7. Per contra, in a joint return, respondent Nos. 2, 3 and 4 submitted that the order of detention was passed by the District Magistrate, Bhopal after being satisfied that his detention under the provision of the Act was essential. The Advisory Board as well as the Govt. of M. P. Home Department confirmed the detention of detenu after appreciating the facts. Out of 28 cases, in six cases detenu has been acquitted and two cases have been compromised, but 20 cases were still pending before the Courts. From the pendency of most of the cases, it was apparent that public was afraid of either giving evidence against the detenu or was terrorized. The progress of disposal of these cases was slow.

8. It was contended on behalf of the State that it is common knowledge and experience that the detenu was engaged in extortion, rape, rioting, armed with deadly weapons, formation of unlawful assembly, obstructing the public servants in discharge of public function, murder, attempt to murder etc. which are serious offences against the public order and disturbance of peace and tranquility. Last two cases were under sections 384, 294, 323, 506, 341, 385 and 386 read with section 341 of the Indian Penal Code. These offences were relating to extortion by putting a person in fear of death or grievous hurt and by no stretch of imagination, these cases can be said to have resulted out of simple business rivalry. Since from the grounds, it was apparent that the detention of detenu was essential for preventing him from acting in any manner prejudicial to the maintenance of public order, therefore, petition filed on behalf of detenu deserved to be dismissed.

9. In a rejoinder to the return of respondents, it was mentioned that out of 28 cases narrated in the grounds of detention, 26 cases were till the year 1997 and thereafter, from 1997 to 2009, there have been no instances of criminal cases being registered against detenu. Two cases registered in the year 2009 i.e. on 27- 9-2009 and 29-9-2009 were got registered by sisters of one person namely Babloo @ Surendra Kumar Mehani, who is on inimical terms with detenu. As against Babloo @ Surendra Kumar Mehani, there were as many as 34 cases registered and an order of externment had also been passed. A copy of externment order has been filed as Annexure P/5.

10. Learned counsel for the petitioner submitted that the registration of two offences on 27-9-2009 and 29-9-2009 was in fact because of business rivalry between the husband of petitioner and the brother of two complainants namely Smt. Roshani and Ku. Shalini Mihani. From the facts as narrated in the grounds and also the first information reports of the aforesaid incident, it is apparent that these reports were false and concocted with some ulterior purpose and even if, they be taken as true, it could not be held that the act of detenu in any manner affected the maintenance of public order or disturbed the public tranquility at large, therefore, this petition deserved to be allowed and detention orders deserved to be quashed.

11. We have heard the learned counsel for the petitioner as well as learned counsel for the State and perused grounds and material on record.

12. In Kamlakar Prasad Chaturvedi v. State of M. P., (1983) 4 SCC 443, the Apex Court held :

"It is not open to the Detaining Authority to pick up an old and stale incident and hold it as the basis of an order of detention under section 3(2) of the Act. Nor is it open to the Detaining Authority to contend that it has been mentioned only to show that the detenu has a tendency to create problems resulting in disturbance to public order, or as a matter of fact it has been mentioned as a ground of detention."

13. In case of Ajay Dixit v. State of U. P. and others. AIR 1985 SC 18, the Apex Court held:

"When a challenge is made to a detention on the grounds that the stale and irrelevant grounds were the basis for detention then the detenu is entitled to be released and to that extent the order is subject to judicial review not on the ground of sufficiency of the grounds nor the truth of the grounds but only about the relevancy of the grounds which would come under judicial scrutiny."

14. From the above proposition, it is evident that an incident formulated as a ground cannot be made use of by Detaining Authority, if it has become stale. According to 21st Century Chambers Dictionary, the word "stale" means not fresh and, therefore, unpalatable, overused and no longer interesting or original, lacking in energy and out of date etc. It reflects the lack of proximity and relevancy of the ground as a requirement for the use of provisions of the Act for detaining a person for preventing him from acting in any manner prejudicial to the maintenance of public order. If a ground is stale, it does not remain relevant for forming the subjective satisfaction of the Detaining Authority. In the instant case, when the detention order has been passed by the Detaining Authority on 30-9-2009, the instances of criminal activities of the detenu from 7-6-1982 to 8-1-1997 cannot be held to be relevant for reaching the subjective satisfaction by the District Magistrate. A gap of 12 years intervening between 26th and 27th- 28th grounds renders all the grounds pertaining to instances forming the subject-matter of ground No. I to ground No. 26, stale. There appears no rhyme or reason why such stale grounds should have been taken into consideration by the Detaining Authority for reaching the subjective satisfaction for passing the detention order against detenu, which by efflux of time have become stale. No material was adduced by the Govt. to show any proximity of these stale grounds with the grounds No. 27 and 28, the crimes registered against detenu on 27-9-2009 and 29-9-2009. Thus, we hold that the District Magistrate was not justified to pass the detention order on the basis of aforesaid stale grounds.

15. However, in view of the provision of section 5-A of the Act, the detention order passed by the District Magistrate cannot be quashed merely on failure the aforesaid grounds as the order of detention shall be deemed to have been made separately on each of the grounds on which the detention order was passed. Now the question before us is whether the grounds No. 27 and 28 were sufficient and valid for making the order of detention.

16. It has now been well settled by several decisions by the Apex Court that public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order or it affects public order. In Gulab Mehra v. State of U. P., AIR 1987 SC 2332 it was held that :

"Act by itself is not determinant of its own gravity. In its quality it may not differ from another but its potentiality it may be very different. Therefore it is the impact, reach and potentiality of the act which in certain circumstances affect the even tempo of life of the community and thereby public order is jeopardized. Such an individual act can be taken into consideration by the detaining authority while passing an order of detention against the persons alleged to have committed the act."

17. Ground No. 27 in the instant case pertains to a report lodged by Smt. Roshani on 27-9-2009 that detenu threatened her on mobile phone that he had purchased her land and demanded Rs. 10 lakhs from her and also threatened her that on not making the payment, she would be killed. It has been added in the ground that because of his holding out threat, a panic and terror was caused in the area. On bare reading of this ground, it is apparent that in no way the aforesaid incident could have created any terror or panic in the people of locality nor it could have affected in any manner the even tempo of life of the community. Similarly the ground No. 28 pertains to a report lodged by Ku. Shalini Mihani on 29-9-2009, who happens to be the sister of the complainant, who lodged the report on 27-9-2009. The residential address of both the complainants was House No. 211, Prabhu Nagar, Idgah Hills, Shahjahnabad. In this report also the allegation was that the detenu along with his associates stopped Ku. Shalini and by putting revolver on her head, demanded Rs. 10 lakhs and on not making the payment threatened to kill her. Again, it was added in the ground that by this act of detenu, a panic and terror was created in the locality. For appreciating the nature of the aforesaid incidents, it would be relevant to advert to the rejoinder to the return of the respondents wherein petitioner contended that the aforesaid two cases were got registered by sisters of one person namely Babloo @ Surendra Kumar Mehani, who is on inimical terms with him. As against Surendra Kumar Mehani, there were as many as 34 cases registered by the police including an order of externment passed in the year 2008. A copy of the said externment order has been filed as Annexure P/5.

18. Be that as it may, perusal of the aforesaid grounds clearly indicates that the aforesaid criminal acts of the detenu had nexus with some dispute about land between the complainants and the detenu. Since the act of detenu affected only the complainant and had no affect on the public or community at large, in our opinion, the aforesaid grounds cannot be held to have disturbed the public order. As such, the Detaining Authority was not justified to form these grounds the basis of detention order.

19. In Subhash Bhandari v. District Magistrate, Lucknow and others, AIR 1988 SC 74 on the facts of the case it was held that :

"In the instant case the alleged act of assault by fire-arms is confined to the complainant Surya Kumar and not to others. It is an act infringing law and order and the reach and effect of the act is not so extensive as to affect considerable members of the society. In other words, this act does not disturb public tranquility nor does it create any terror or panic in the minds of the people of the locality nor does it affect in any manner the even tempo of the life of the community. This criminal act emanates from business rivalry between the detenus and the complainant, therefore, such an act cannot be the basis for subjective satisfaction of the detaining authority to pass an order of detention on the ground that the impugned act purports to affect public order i.e. the even tempo of the life of the community which is the sole basis for clamping the order of detention......... Thus it is the degree and extent of the reach of the act of, upon the society which is vital for conside

ring the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." 20. Similarly it was observed in Golam Hussain @ Gama v. The Commissioner of Police, Calcutta and others, (1974) 4 SCC 530 that the nature of the act, the circumstances of its commission, the impact on people around and such like factors constitute the pathology of public disorder. The act cannot be isolated from its public setting but is to be taken with its total effect on the flow of orderly life. It may be a question of the degree and quality of activity of the sensitivity of the situation and the psychic response of the involved people. 21. When the facts and circumstances of the instant case are viewed, in perspective of the above proposition of law, it would appear that the acts of the detenu do not amount to causing disturbance of the public order as the degree and extent thereof do neither result in panic and terror to the persons of the locality nor affect the public at large. 22. After scanning the factual and legal aspects, we are of the view that this petition deserves to be allowed. The detention order passed against the detenu Mukhtar Malik on 30-9-2009 by the District Magistrate, Bhopal and the confirmation order dated 9th December, 2009, issued by the State Government are hereby quashed. Detenu-Mukhtar Malik is ordered to be set free unless required in connection with any other case. 23. Petition allowed. Petition allowed.