Full Judgment Text
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CASE NO.:
Appeal (crl.) 567 of 2008
PETITIONER:
Collector & Dist. Magistrate & Ors
RESPONDENT:
S. Sultan
DATE OF JUDGMENT: 31/03/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 567 OF 2008
(Arising out of SLP (Crl.) No. 993 of 2007)
With
CRIMINAL APPEAL NO. 568 OF 2008
(Arising out of SLP (Crl.) No.1308 of 2007)
With
CRIMINAL APPEAL NO. 570 OF 2008
(Arising out of SLP (Crl.) No.2089 of 2007)
With
CRIMINAL APPEAL NO. 569 OF 2008
(Arising out of SLP (Crl.) No.2090 of 2007)
With
CRIMINAL APPEAL NO. 571 OF 2008
(Arising out of SLP (Crl.) No.2091 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted in each case.
2. Challenge in these appeals is to the order passed in each
case by a Division Bench of the Andhra Pradesh High Court in
writ petitions filed for quashing the order of detention passed
by the Collector and District Magistrate, Nellore, under
Sections 3(1), 3(2) read with Section 2(a) and (g) of A.P.
Prevention of Dangerous Activities of Bootleggers, Dacoits,
Drug Offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986 (in short the ’Act’) in respect of Shri
Pralayakaveri Bhaskar. Sri Pamanji Chenna Reddy, Sri
Pralayakaveri Gnanaiah, Sri Voila Babu and Sri Pamanji Babu
(each described as ’detenu’ hereinafter)
3. Respondent claiming to be a friend of the detenu
challenged the validity of the order stating it to be illegal,
arbitrary, unconstitutional and violative of Article 22 of the
Constitution of India, 1950 (in short the ’Constitution’). The
main ground of challenge was that the grounds of detention
referred to certain acts which are punishable under the Indian
Penal Code, 1860 (in short ’IPC’), as well as the Explosive
Substances Act, 1908 (in short ’Explosive Act’) and, therefore,
shows non-application of mind.
4. It was the stand of the writ petitioner who had filed the
Habeas Corpus Petition that the instances referred to do not
affect the public order at all and in any event since some of the
grounds related to offences punishable under the Explosive
Act, the detention under the Act was impermissible. The High
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Court accepted the stand and quashed the order of detention.
5. In support of the appeals, learned counsel for the
appellants submitted that Section 2(g) of the Act defines a
’goonda’. Undisputedly, all the instances detailed in the order
of detention related to offences punishable under IPC and also
under some of the provisions of the Explosive Act. Therefore,
the impugned judgment of the High Court is indefensible.
6. In response, learned counsel for the respondent
submitted that some of the instances are not relatable to
offences punishable under IPC and, therefore, Section 2(g) of
the Act has no application. In any event, it is submitted that
most of the incidents highlighted are stale incidents and do
not in any manner constitute violation of public order.
7. Section 2(g) of the Act reads as follows:
"Goondas means a person, who either by
himself or as a member of or leader of a gang,
habitually commits, or attempts to commit or
abets the commission of offences punishable
under Chapter XVI or Chapter XVII or Chapter
XXII of the Indian Penal Code."
8. Undisputedly, in all the instances given in the grounds of
detention, the indicated offences are punishable under either
Chapters XVI or XVII and/or XXII. In addition, in certain
instances reference has been made to offences punishable
under the Explosive Act.
9. Therefore, it is not correct as observed by the High Court
that some of the grounds related to offences punishable under
Sections 3 and 5 of the Explosive Act only. It is really not so.
Even otherwise, all instances indicated are in respect of
offences covered by the definition of the expression ’goonda’.
The test is whether the detenu is a "goonda" in terms of
Section 2(g) of the Act. Reference to other provisions does not
affect that conclusion. There may be cases where offences may
be punishable under different statutes. Inevitably, therefore,
reference has to be made to them when giving details of an
incident. That will not be a factor to render detention invalid.
10. So far as the stand that incidents were stale incidents, it
is to be noted that most of the incidents highlighted are of
November 2005. The order of detention was passed on
20.3.2006. The State Government approved the order of
detention on 28.3.2006. The Advisory Board confirmed the
order of detention and based on the recommendation of the
Advisory Board, the Government confirmed the order of
detention for a period of 12 months from the date of detention.
That being so, it cannot be said that the order of detention was
based on stale incidents.
11. So far as the question as to whether the public order was
involved, the grounds of detention elaborately described the
acts which created dangerous and terrorized situations in the
village and frequently disturbed public peace and public order
because of the acts of violence and danger was caused to the
lives of the villagers. In all these instances deadly weapons
were used causing injuries to various persons.
12. The crucial issue, therefore, is whether the activities of
the detenu were prejudicial to public order. While the
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expression ’law and order’ is wider in scope inasmuch as
contravention of law always affects order. ’Public order’ has a
narrower ambit, and public order could be affected by only
such contravention which affects the community or the public
at large. Public order is the even tempo of life of the
community taking the country as a whole or even a specified
locality. The distinction between the areas of ’law and order’
and ’public order’ is one of the degree and extent of the reach
of the act in question on society. It is the potentiality of the act
to disturb the even tempo of life of the community which
makes it prejudicial to the maintenance of the public order. If
a contravention in its effect is confined only to a few
individuals directly involved as distinct from a wide spectrum
of public, it could raise problem of law and order only. It is the
length, magnitude and intensity of the terror wave unleashed
by a particular eruption of disorder that helps to distinguish it
as an act affecting ’public order’ from that concerning ’law and
order’. The question to ask 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 the society undisturbed"?
This question has to be faced in every case on its facts.
13. "Public order" is what the French call ’ordre 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, is: Does it lead to
disturbance of the current life of the community so as to
amount to disturbance of the public order or does it affect
merely an individual leaving the tranquility of the society
undisturbed? (See Kanu Biswas v. State of West Bengal (AIR
1972 SC 1656).
14. "Public order" is synonymous with public safety and
tranquility: "it is the absence of disorder involving breaches of
local significance in contradistinction to national upheavals,
such as revolution, civil strife, war, affecting the security of the
State". Public order if disturbed, must lead to public disorder.
Every breach of the peace does not lead to public disorder.
When two drunkards quarrel and fight there is disorder but
not public disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained on the
ground that they were disturbing public order. Disorder is no
doubt prevented by the maintenance of law and order also but
disorder is a broad spectrum, which includes at one end small
disturbances and at the other the most serious and
cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State
of Bihar and Ors. (1966 (1) SCR 709)
15. ’Public Order’, ’law and order’ and the ’security of the
State’ fictionally draw three concentric circles, the largest
representing law and order, the next representing public order
and the smallest representing security of the State. Every
infraction of law must necessarily affect order, but an act
affecting law and order may not necessarily also affect the
public order. Likewise, an act may affect public order, but not
necessarily the security of the State. The true test is not the
kind, but the potentiality of the act in question. One act may
affect only individuals while the other, though of a similar
kind, may have such an impact that it would disturb the even
tempo of the life of the community. This does not mean that
there can be no overlapping, in the sense that an act cannot
fall under two concepts at the same time. An act, for instance,
affecting public order may have an impact that it would affect
both public order and the security of the State. [See Kishori
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Mohan Bera v. The State of West Bengal (1972 (3) SCC 845);
Pushkar Mukherjee v. State of West Bengal (1969 (2) SCR
635); Arun Ghosh v. State of West Bengal (1970 (3) SCR 288);
Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC
498).
16. The distinction between ’law and order’ and ’public order’
has been pointed out succinctly in Arun Ghosh’s case (supra).
According to that decision the true distinction between the
areas of ’law and order’ and ’public order’ is "one of degree and
extent of the reach of the act in question upon society". The
Court pointed out that "the act by itself is not determinant of
its own gravity. In its quality it may not differ but in its
potentiality it may be very different". (See Babul Mitra alias
Anil Mitra v. State of West Bengal and Ors. (1973 (1) SCC 393,
Milan Banik v. State of West Bengal (1974 (4) SCC 504).
17. The true distinction between the areas of law and order
and public order lies not merely in the nature or quality of the
act, but in the degree and extent of its reach upon society.
Acts similar in nature, but committed in different contexts and
circumstances, might cause different reactions. In one case it
might affect specific individuals only, and therefore touches
the problem of law and order only, while in another it might
affect public order. The act by itself, therefore, is not
determinant of its own gravity. In its quality it may not differ
from other similar acts, but in its potentiality, that is, in its
impact on society, it may be very different.
18. The two concepts have well defined contours, it being
well established that stray and unorganized crimes of theft
and assault are not matters of public order since they do not
tend to affect the even flow of public life. Infractions of law are
bound in some measure to lead to disorder but every
infraction of law does not necessarily result in public disorder.
Law and order represents the largest scale within which is the
next circle representing public order and the smallest circle
represents the security of State. "Law and order" comprehends
disorders of less gravity than those affecting "public order" just
as "public order" comprehends disorders of less gravity than
those affecting "security of State". [See Kuso Sah v. The State
of Bihar and Ors. (1974 (1) SCC 185, Harpreet Kaur v. State
of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of
Karnataka (2000 (6) SCC 168, State of Maharashtra v. Mohd.
Yakub (1980 (2) SCR 1158)]. In the instant case, the incidents
related to public order situations.
19. Looked at from any angle, the impugned judgment of the
High Court cannot be sustained and is set aside. However, the
period of detention as fixed in the detention order is already
over. It would be open to the State Government to consider
whether there is a need for detaining the detenu for the
balance period covered by the original order of detention.
20. The appeals are allowed.