B.L Yadav, J.:— The petitioner has filed the present habeas corpus petition under Art. 226 of the Constitution against the detention order dt. 16-11-1984 (Annex. ‘1’ to the petition) passed under S. 3(2) of the National Security Act (for short the Act) and the order dt. 26-11-84 (Annex. ‘9’) confirming the order of detention.

2. The facts of the case need not detain much. According to the case of the State the petitioner, immediately after passing the order of detention dt. 16-11-1984, absconded and could not be arrested till 22-5-86, when the detention order was served on him along with nine grounds of detention coupled with other materials on which reliance was placed. The Advisory Board's opinion was received under S. 10 to this effect that there was sufficient cause for detention of the petitioner. Thereafter the detention order was confirmed by the State Government vide its order dt. 26-11-84 (Annex. ‘9’). The petitioner has challenged these two orders dt. 16-11-84 and 26-11-84. Sri D.S Misra, the learned counsel for the petitioner, urged before us that even though the order of detention was passed on 16-11-84 but the petitioner was actually arrested on 21/22-5-86 and before that according to the case set up by the State, the petitioner was absconding. In that event the procedure prescribed for a person who has absconded, as provided under S. 7 of the Act ought to have been followed, and a report must have been made to the Metropolitan Magistrate or the Judicial Magistrate First Class, having jurisdiction over the place, where the petitioner ordinarily resided and the order must have been published in the Official Gazette and the provisions of Ss. 82, 83, 84 and 85 of the Criminal P.C, 1973 must have been complied with. But no such report was made. There is no explanation as to why the order of detention passed on 16-11-1984 could not be served on the petitioner till 21/22-5-1986, particularly when he was Pradhan and also a Block Pramukh of Pahari. During that period he has presided or attended a number of meetings which were attended by some Govt. Officials or the other (vide para 5 and Annexures ‘1 to 17’ of Rejoinder Affidavit). The grounds disclosed have no nexus to the order of detention and a number of grounds are stale, and the remaining grounds do not raise a question of Public Order. The First Information Reports and other materials forming the basis of the grounds were not supplied to the petitioner and he was deprived of the right of hearing. The proceedings before the Advisory Board were held in violation of the principles of natural justice. The petitioner fell seriously ill as he has serious angina pectoris pain. According to Jail Doctor he was unable to undertake journey. He wanted to be represented through his next friend Sri Ram Nath Dubey, Advocate. But on 7th July, 1986, on the date fixed for hearing before the Advisory Board at Lucknow, neither the petitioner was present nor heard. His next friend Sri Dubey was not heard on the ground that he was a practising lawyer. Sri Dubey did not represent the petitioner as a lawyer but as a next friend.

3. Sri Surendra Nath Singh, the learned Asstt. Govt. Advocate appearing for the State, refuted the contentions raised by the learned counsel for the petitioner and supported the order of detention. He urged that the publication was made in the gazette about the fact that the petitioner had absconded. This was sufficient compliance of S. 7. The grounds served on the petitioner were relevant and were the grounds pertaining to the Public Order and not Law and Order. The petitioner was afforded sufficient opportunity of hearing as required by S. 11(1) and (4) of the Act but he did not avail it. Sri R.N Dubey, the alleged next friend of the petitioner was a legal practitioner, hence he could not represent the petitioner. Consequently, the Advisory Board was justified in not hearing the petitioner. The grounds along with materials were supplied. In any case, the material forming the basis were not necessary at all to be supplied.

4. Having heard the learned counsel for the parties, the first point for our determination is that as the detention order was passed on 16-11-84 and the petitioner was arrested on 21/22-5-86, whether the detention order passed about one and half year earlier can be said to have any proximity with the actual arrest of the petitioner or whether the delay in arrest could be made a ground for doubting the subjective satisfaction of the detaining authority? The next question connected with it is that in case the petitioner absconded after passing of the order of detention, whether the proceedings under S. 7 of the Act were initiated and if so, its effect. There is no denying the fact that the petitioner was arrested about one and half year after the order of detention. It was the case of the State that the petitioner absconded. The petitioner, however, as Block Pramukh of Block Pahari and as Pradhan of Gaon Sabha, Pahari, has attended or presided a number of meetings on 7-4-85, 7-5-85 etc. The details about these meetings have been given under para 5 of the rejoinder affidavit. Annexures R.A 1 to R.A 12 are details of Gaon Sabha meetings. Annexures R.A 13 to R.A 17 are details of meetings of the Block Pramukh. In any event, the procedure under S. 7 ought to have been followed. Section 7 enacts that where any person against whom an order of detention has been passed, has absconded or is concealing himself so that the order of detention cannot be executed, the State Government or the officers concerned may make a report in writing of the fact to the Metropolitan Magistrate or the Judicial Magistrate of the First Class and by an order notify in the Official Gazette directing such person to appear before such officer at such place and within such period as may be specified in the order.

5. After the First Information Report under S. 7 having been lodged the provisions of Ss. 82, 83, 84 and 85 of the Criminal P.C, 1973 would apply. In this way it was open to the State Government and its officers to have initiated the proceedings for attachment and to adopt similar coercive measures to secure the presence of the detenu. It is, however, not the case of the State that any report was made to any Magistrate about the fact that the petitioner has absconded. But it appears that a publication was made in the Gazette. But this itself was not sufficient as the comprehensive procedure provided to secure attendance of a person who has absconded, must have been followed. Sub-sec. (3) of S. 7 provides for punishment with imprisonment for a term which may extend to one year, or with fine, or with both. Under these circumstances, we are of the opinion that the State or its officers, entrusted with the responsibility of securing the presence of the petitioner, who was alleged to have absconded after passing the detention order, did not act sincerely and enthusiastically nor evinced any interest so as to procure the attendance of the petitioner by following the procedure provided under S. 7. Just publication in the Gazette was not sufficient compliance of the comprehensive procedure provided under S. 7. Even no copy of Gazette publication has been filed along with the counter-affidavit we are of the view that inordinate delay of more than a year in passing the order of detention and the actual arrest of the petitioner specially when as Pradhan, Block Pramukh he attended a number of meetings certainly throws considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate in passing the impugned order of detention. It could be reasonably assumed that if the District Magistrate, Banda was, as a matter of fact, genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to prevent him from acting in a prejudicial manner, he would have acted with a considerable amount of promptitude both in making the order of detention as also in securing the arrest of the petitioner. In case the said Dist. Magistrate could have acted with great promptitude the petitioner would not have been allowed to carry on his alleged nefarious activities for such a considerable period of time. We would, however, like to add an appendage that every case must depend on its own particular facts. This is not a fact that delay in every case in making an order of detention or in arrest of the detenu pursuant to the order of detention, would lead to an inference that the subjective satisfaction of the detaining authority was not genuine or that it was colourable. (See Sk. Serajul v. State Of West Bengal., (1975) 2 SCC 78 : AIR 1975 SC 1517; Jagannath v. State Of West Bengal., (1975) 4 SCC 115 : AIR 1975 SC 1516; Habeas Corpus Petn. No. 6311 of 1983, Shahzada v. Superintendent, Dist. Jail, Moradabad, decided by a Division Bench, to which one of us (Hon. R.K Shukla, J.) was a member, on 28-7-83: (reported in 1984 Cri LJ NOC 1)).

6. This can be viewed from another angle. It may be that the subjective satisfaction of the detaining authority cannot be so tangible as to be perceived by this Court in a proceeding where the detention order has been challenged. But at the same time it is also true that the grounds of detention can certainly be scrutinised and looked into by the Court to ascertain whether they have any nexus in passing the order of detention. In the instant case the order of detention was passed one and half year prior to the actual date of arrest of the petitioner. It is also possible that by the time the petitioner was actually arrested, the circumstances might have undergone some change and the grounds which were genuine at the time when the detention order was passed, may not be so genuine after such a long period since the detention order was passed. There was delay apparent at both stages. The delay, unless satisfactorily explained, would throw considerable doubt on the subjective satisfaction of the District Magistrate. The incidents may appear serious in themselves but at the same time they appear to be stale, having regard to the long gap between the occurrence and the order of detention as also the actual arrest of the detenu, particularly when during this period he, as Pradhan or Block Pramukh, either attended or presided over the meetings. We can expect some proximity in time to provide a rational nexus between the incidents relied upon and the satisfaction arrived at. Unexplained long delay would be fatal to the plea of subjective satisfaction. In the alternative, the proper course could have been to pass a fresh order of detention taking into account the detrimental activities, if any, of the petitioner in the past, which could lead to the satisfaction of the District Magistrate that the petitioner was acting in any manner prejudicial to the maintenance of Public Order. (See Shaikh Nizamuddin v. State of West Bengal, AIR 1974 SC 2553, para 3).

7. The next point for determination is as to whether the grounds served on the petitioner have any proximity in time to provide a rational nexus between the incidents relied on and satisfaction arrived at in respect of Public Order. There are nine grounds for detention served on the petitioner (vide Annex. ‘2’). Out of them Ground No. 1 is in respect of an incident dt. 10-6-79. Ground No. 2 is in respect of an incident dt. 19-10-80. Grounds Nos. 3 and 4 are in respect of an incident dt. 2-11-82 and 13-11-82. Grounds Nos. 5 to 9 are in respect of an incident dt. 28-06-83, 3-4-84, 1-9-84, 3-9-84, 11-9-84 and 16-9-84. These grounds are more than one and half year old when he was arrested. In our opinion considering the date of incidents and the detention order dt. 16-11-86, we find no proximity in time to provide a rational nexus between the incidents relied upon and the satisfaction arrived at. There was no satisfactory explanation at all as to why there was such a long delay.

8. This can be stated by us that there are catena of decisions explaining the distinction between the grounds pertaining to Public Order and those pertaining to Law and Order. The substance of the said ratio is that whenever a challenge is made to an order of detention on the ground that stale and irrelevant grounds were the basis for detention, to that extent the order is subject to judicial review, certainly not on the ground of the sufficiency of grounds nor truth of the grounds, but only about the relevancy of the grounds to the order of detention passed. This could certainly be subject-matter of judicial scrutiny. In other words, to put it differently, it becomes imperative to examine the facts of each case not with a view to ascertain the sufficiency of grounds nor the particulars of the grounds, but just the nature of the grounds alleged and it must be seen as to whether those grounds are not relevant in passing the order of detention and whether such detention order was necessary for maintenance of Public Order. Before S. 5-A was brought on the Statute Book on 31-8-84, even if some grounds were irrelevant and some were relevant, in that event the order of detention was held to be illegal. But after the enactment of S. 5-A the order of detention was not to be deemed to be invalid merely because some or one of the grounds are vague, non-existent, non-relevant or-not connected with the order of detention. Only ope ground can be sufficient for maintaining the order of detention. But in the instant case, having perused the grounds and their contents coupled with the materials on which they are alleged to be based, we are satisfied that none of the grounds is in respect of Public Order. A ground pertaining to Public Order, must affect the even tempo of public tranquility. Consequently, the public at larger must be affected and not as an isolated incident affecting only few individuals. After discussing the relevant case law this point has been clarified in a Division Bench case in R.K Singh v. State of U.P, 1986 All WC 652 at p. 654 : (1986 Cri LJ 1437 at pp. 1439-40), (para 10). See Ajai Dixit v. State of Uttar Pradesh, (1984) 4 SCC 400 : AIR 1985 SC 18, Kamla Pd. Chaturvedi v. State of M.P, (1985) 1 SCC 151 : AIR 1985 SC 211, and the Full Bench case of this Court in Ashok Dixit v. Union of India, (Habeas Corpus Petition No. 11151 of 1984, decided on 1-8-85: (reported in 1985 All LJ 1222).

9. Now coming to the point as to whether the grounds of detention can be said to be complete without being accompanied by the materials forming the basis of the grounds. We are of the view that on a proper construction of Art. 22(5) of the Constitution and S. 8(1) of the National Security Act, 1980, it is abundantly clear that the grounds of detention to be served on the detenu cannot be complete unless they are accompanied by the materials (i.e F.I.R or judgment and order etc. in some case), on the basis of which grounds were based and opinion was formed. The materials are the integral part of the grounds. (See also S. Gurdip Singh v. Union of India, (1981) 1 SCC 419 : AIR 1981 SC 362; Smt. Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 : AIR 1980 SC 1983; Smt. Shalini Soni v. Union of India, 1980 Cri LJ 1487 : ((1980) 4 SCC 544 : AIR 1981 SC 431)).

10. As to whether the materials in support of grounds were actually served on the detenu. It was the case of the petitioner that apart from the grounds of detention he was not supplied any other materials which were the basis of the grounds. In para 4 of the counter-affidavit filed by Sri Rama Shankar Singh, Inspector-in-charge of P.S Karvi, District Banda, it has been stated that the petitioner was served copies of grounds and other materials including F.I.R etc. In para 5 of the counter-affidavit of Sri Ashok Kumar Khurana, the District Magistrate, it has been stated that the petitioner has signed in token of having received the order of detention, grounds and other materials. Whereas a contradictory version has come under para 3 of the supplementary counter-affidavit by Sri Rama Shankar Singh, the Inspector-in-charge, that the petitioner has not signed each page of each paper given to him. From the extract of the Case Diary (Annex. ‘1’ to the Supplementary Rejoinder Affidavit dt. 22-5-86), it is clear that only a copy of notice and a warrant was given to the petitioner. There was no mention of even grounds, order of detention or materials in support of the grounds. We are, accordingly, of the opinion that the materials in support of the grounds were not served on the petitioner.

11. The last point for determination is as to whether the petitioner was given opportunity of hearing before the Advisory Board as contemplated by S. 11 of the Act. The petitioner has made a prayer in his representation that he may be permitted to be heard in person before the Advisory Board (vide paras 5 and 6 of the Supplementary Rejoinder Affidavit). Even in the affidavit filed by the Personal Assistant to Registrar, U.P Advisory Board (Detentions), on behalf of the Advisory Board this fact was admitted in para 5 that the petitioner has requested his personal hearing before the Advisory Board and on the next date fixed on 7-7-86, the petitioner's next friend Sri R.N Dubey, Advocate, appeared before the Advisory Board and the Board put a question to him as to whether he was an Advocate. He replied in affirmative and then he was not permitted to appear on behalf of the petitioner. The petitioner did not appear in person as he was suffering from Chronic Inefficiency Angina on the left side of the chest and on account of his ailment he has authorised Sri R.N Dubey, who was an Advocate, as his next friend. The petitioner's application for permitting Sri R.N Dubey as his next friend was actually partly accepted, inasmuch as Sri Dubey was informed by the Superintendent of Jail, Banda on 5-7-86 (vide Annex. ‘1’ to the Second Supp. Rejoinder Affidvit). Sri R.N Dubey even though an Advocate, was permitted by the Jail authorities to represent the case of the petitioner and he went there, but was not afforded opportunity of hearing as he was an Advocate. Under these circumstances it cannot be said that the petitioner was afforded reasonable opportunity of hearing, particularly in view of the fact, that on behalf of the State of U.P the detaining authority was represented by persons well versed in law, particularly in proceedings under the National Security Act and before the Advisory Board.

12. As regards the representation through an Advocate is concerned, it is clear that Sri Ram Nath Dubey, Advocate, was informed by the Superintendent of the District Jail, Banda that the petitioner has engaged him as his next friend and on account of his illness he could not appear before the Advisory Board and hence his (Sri Ram Nath Dubey) opinion was being sought as to whether he was willing to represent the case of the petitioner as his next friend (vide letter dt. 5-7-86, Annex. ‘1’ to the Supp. Rejoinder Affidavit). Sri Ram Nath Dubey expressed his willingness to represent the case of the petitioner. In this view of the matter the acceptance of Sri Dubey as next friend representing the petitioner before the Advisory Board was partly accepted. In case Sri Dubey was a Legal Practitioner, would that itself be a ground sufficient in a peculiar situation of detenu suffering from angina pectoris pain, not to permit him to represent the petitioner as his next friend? As Sri Dubey was directed to express his willingness by the Supdt. of the Jail, it means that the jail authorities accepted him to be a competent person to represent the petitioner as his next friend. Simply because Sri Dubey was an Advocate would not disentitle him to represent the petitioner as his next friend, in a pressing circumstance. He was not appearing before the Board in the capacity of a Legal Practitioner, but just in his private capacity being a well wisher of the detenu being closely acquainted with the facts of the case. We have to ascertain the intention of the Legislature in the concept of representation and hearing of a detenu under S. 11 of the Act. Can it be the intention of the Legislature that the personal hearing is a must, but in case the detenu is unable to attend on account of his serious ailment pertaining to Chronic Inefficiency Angina on the left side of the Chest, his next friend cannot be heard on his behalf simply because he is a practicing lawyer. The practicing lawyer has two capacities, one appearing before a Court or Tribunal as an Advocate and the other is appearing in his personal capacity. The Court in a particular set of facts has to take a rational and reasonable view which can advance the concept of justice. The procedure is provided and laws are enacted to secure the ends of justice and not to scuttle the same. There is a maxim “APPICES JURIS NON SUNT JURA”, which means that the legal principles must not be carried to a very extreme consequence regardless of justice, equity and good conscience. There is another maxim “EAST BONI JUDICIS AMPLIARE JUSTICIAM NON JURISDICTOM”, which connotes that it is the duty of the Court to explain and amplify the concept of justice, but the jurisdiction of the Court, however, cannot be extended which has not been provided. It goes without saying that the concept of justice is supreme. It is prior to liberty (i.e “JUSTITIA EST LIBERT ATE PRIOR”). Further the provisions of Ss. 11(1) and 11(4) of the Act have to be interpreted according to the intention of the Legislature. The duty of the Judicature is to act according to the true intention of the Legislature, i.e ‘MENS’ or “SENTENTAI LEGIS”. The Legislature has deliberately provided the right of hearing to a detenu. In the present case as the detenu was incapable to attend the date of hearing as he was suffering from angina pectoris pains in left chest, hence the authorisation in favour of a person, who was of his confidence, was inevitable. While interpreting particular statutory provision of law, we must look to the substance rather than the form.

13. The Personal Assistant to Registrar, U.P Advisory Board (Detentions), in his reply under para 5 of the Suppl. Rejoinder Affidavit, admitted that the petitioner was suffering from Chronic Inefficiency Angina on left side of the chest and was advised complete rest and he expressed his willingness to be represented by his next friend Sri Ram Nath Dubey, who was directed by the Supdt. Jail, Banda to express his willingness. Sri Dubey expressed his willingness and thereafter he was directed to attend the hearing before the Advisory Board on 7-7-1986. But on that date he replied a question in affirmative that he was an Advocate, the Advisory Board, however, refused to hear him as he was a legal practitioner. In this situation the petitioner was personally unable to be heard in person and simply because he authorised an Advocate, he could not have been denied right of hearing. In any case he could have been afforded another opportunity to nominate another next friend who was not an Advocate. Sri Dubey was not appearing there in capacity of a Legal Practitioner, but just in, his private capacity as a well wisher and a friend. We do not think it advisable to take the principle of legal practitioner to its extreme and irrespective of concent of justice.

14. Even if ‘POSTERIORI’ or ‘PRIORI’ principles are applied to analyse the reasons adopted by the Advisory Board it comes to this that if a legal practitioner is detained under S. 3(3) of the Act, then he could not be permitted to be heard in person because he happens to be a legal practitioner. But this could not be the intention of the Legislature in enacting S. 11(4) of the Act. Further the concept of hearing is inherent in the concept of justice, particularly when the life and liberty of a person is involved, which is a fundamental right in view of Arts. 21 and 22 of the Constitution. The consultations and being defended by a legal practitioner has been recognised as a fundamental right under Art. 22 in a case other than a Preventive Detention.

15. There is another aspect of the matter. The State or the District Magistrate is represented by the persons well versed in law, whereas, if a simple and innocent man or may be some educated man is detained and 1 he is not conversant with the proceedings in a Court of law or the provisions of the Act or the procedure before the Advisory Board, can he not be permitted assistance of a person to act just as a next friend and not as Legal Practitioner. In view of Art. 14 of the Constitution, right to equality has been recognised and the State shall not deny to any person equality before law or the equal protection of the laws within the territory of India. It is better to refer to an observation of their Lordships of the Supreme Court in A.K Roy v. Union of India, (1982) 1 SCC 271 : AIR 1982 SC 710, at p. 747, para 94, as follows:—

“Permitting the detaining authority or the Government to appear before the Advisory Board with the and of a legal practitioner or a legal adviser would be in breach of Art. 14, if a similar facility is denied to the detenu. We must, therefore, make it clear that if the detaining authority or the Govt. takes the and of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly, and no one should be enabled to take shelter behind the excuse that such officers are not “Legal Practitioners” or legal advisers. Regard must be had to the substance and not the form since, specially in matters like proceedings of Advisory Boards, whosoever assists or advises on facts and law must be deemed to be in the position of a legal adviser. We do hope that Advisory Board will take care to ensure that the provisions of Arts. 14 are not violated in any manner in the proceedings before them.”

16. In the instant case it was clearly stated at page 5, para 3 of the second supplementary rejoinder affidavit that the State of U.P and the District Magistrate were represented by legal advisers as well as Law Officers before the Advisory Board. But these averments were not denied on behalf of the State of U.P It is a matter of common knowledge that the detaining authority is represented by the officers of the State Government well conversant in law. But the same facility is not afforded to the detenu. Consequently it cannot be said that reasonable opportunity of hearing was granted to the petitioner.

17. We would, therefore, like to emphasise that fundamental principles of natural justice are commonly recognised in this way that the Court or adjudication must be disinterested and unbiased, that the parties must be given adequate notice and opportunity of hearing (AUDI ALTERAM PARTEM). However, it cannot be said that there is any certain standard of natural justice, substantial or procedural. It has aptly been stated to be a principle sadly lacking in precision. (See also (1914) 1 KB 160 and Local Government Board v. Arlidge, ((1915) AC 120 at p. 138). In this view of the matter we are of the opinion that the petitioner was denied the right of hearing before the Advisory Board and the principles of natural justice were violated.

18. In view of the discussions made hereinbefore, the order of detention cannot be sustained. In the result, the petition succeeds and is allowed. The orders of detention dated 16-11-1984 and 26-11-1984 are hereby quashed. The petitioner is directed to be se at liberty forthwith unless required in any other case. Under the circumstances, however, we refrain from making any order as to costs.

19. Petition allowed.