Full Judgment Text
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PETITIONER:
MRS. HARPREET KAURHARVINDER SINGH BEDI
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT21/01/1992
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
PANDIAN, S.R. (J)
CITATION:
1992 AIR 979 1992 SCR (1) 234
1992 SCC (2) 177 JT 1992 (1) 502
1992 SCALE (1)142
ACT:
Maharashtra Prevention of Dangerous Activities of
Slumlords Bootleggers and Drug offenders Act, 1981:
Section 3(1)-Detention order-Purpose of detention-
Distinction between breach of ’law and order’ and
disturbance of "public order"-Facts of each case-Courts to
scrutinise carefully-Detention ordered for more than three
months at the first instance-Order-Whether vitiated.
HEADNOTE:
With a view to check transportation of illicit liquor,
the Police were maintaining a watch and the speeding car
driven by the detenu, husband of the appellant/petitioner
was signalled to stop. Instead,the detenu accelerated the
car and drove straight towards the Police party. They had to
jump on to the foot path to save themselves. The detenu
hurled abuses and threatened to kill the Police officers. He
kept on driving the car recklessly, dashed against a
pedestrian thereby injuring him. Ultimately the car collided
with a stationary taxi and stopped. The Police rushed to
apprehend the detenu and two others in the car, but they
jumped out of the car and escaped.
Police seized the motor car and recovered illicit
liquor therefrom. A police case was registered against the
detenu and two other unknown persons for offences under
Sections 307,324 read with Section 34 IPC. The detenu made
himself scarce and could not be arrested immediately.
However, after a few days he was arrested and he
admitted the incident including his escape. He was produced
before the Magistrate and was released on bail on the
condition that he should report to the police daily. Since
the detenu failed to carry out the condition, bail was
cancelled and he was taken into custody. The detenu then
moved the Sessions Court against the cancellation of his
bail, which was admitted and he was granted bail.
During the investigation of the case, Police could
record statements
235
from four witnesses, who deposed only on condition of
anonymity as they feared retaliation from the detenu.
The detaining authority on being satisfied that the
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detenu was likely to indulge in activities prejudicial to
the maintenance of "public order" passed an order of
detention and the grounds of detention were served on the
detenu. The said order was confirmed by the State Government
on the report of the Advisory Board. The wife of the detenu
challenged the detention order before the High Court. The
High Court having dismissed the Writ Petition she has filed
the present appeal by special leave, as also a Writ Petition
before this Court, challenging the detention order passed
against her husband.
On behalf of the appellant/petitioner, it was argued
that the activities of the detenu had no impact on the
public and therefore could not be said to have disturbed the
even tempo of the society and as such his detention for
acting in a manner prejudicial to the "public order" was
unjustified. It was further contended that Section 3(2) of
the Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers and Drug Offenders Act, 1981
prohibited the State Government to make an order of
detention in the first instance, exceeding three months, and
since in the present case the detention order was for more
than three months, it was invalid.
Dismissing the matters, this Court,
HELD: 1.1. 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 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 tranquility
there is a 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". [244E-G]
1.2 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
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objectionable activities of a detenu have, therefore,
to be judged in the totality of the circumstance to find out
whether those activities have any prejudicial affect on the
society as a whole or not. If the society. and not only and
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". An
order of detention would be valid if the activities of a
detenu affect "public order" but would not be so where the
same affect only the maintenance of "law and order".[245B-C]
Ram Manohar Lohia v. State of Bihar. AIR 1966 SC 740;
Arun Ghosh v.State of West Bengal, [1970] 1 SCC 98; Madhu
Limaye v. Ved Murti, [1970]3 SCC 738; Kanu Biswas v State of
West Bengal, [1972] 3 SCC 831; Ashok Kumar v. Delhi
Administration, [1982] 2 SCC 403; Subhash Bhandari v.
District Magistrate, Lucknow, [1987] 4 SCC 685, relied on.
State of U.P v. Hari Shankar Tewari, [1987] 2SCC 490;
Ahmedhussain Shaikhhussain v. Commissioner of Police,
Ahmedabad & Anr, [1989]4 SCC 751; T.Devaki v. Government of
Tamil Nadu & Ors. [1990] 2SCC 456; Referred to
2.1 The explanation to Section 2(a) of the Maharashtra
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Prevention of Dangerous Activities of Slumords, Bootleggers
and Drug offenders Act, 1981 brings into effect a legal
fiction as to the adverse affect on ‘public order’. It
provides that if any of the activities of a person referred
to in clauses ( (i)-(iii) of Section 2(a) directly or
indirectly causes or is calculated to cause any harm, danger
or alarm or a feeling of insecurity among the general public
or any section thereof or a grave or a wide-spread danger to
life or public health, then public order shall be deemed to
have been adversely affected. Thus, it is the fall out of
the activity of the ‘bootlegger’ which determine whether
‘public order’ has been affected within the meaning of
deeming provision or not. This legislative intent has to be
kept in view while dealing with detentions under the act.
[246-B, C]
2.2 In the instant case, the substance of the grounds
on which detention has been ordered is that the detenu is a
bootlegger and in furtherance of his activities and to
escape from the clutches of law, he even tried to run over,
by his speeding vehicle, the police party, which tried to
signal him to a stop, exhorting all the time that he would
kill anyone who would come in his way. He continued to
drive in a reckless speed and dashed against a pedestrian
causing injuries to him, where
237
again he had exhorted that anyone who would come in his
way would meet his death. Four witnesses- A, B, C, D, -who
agreed to give statements to the police on conditions of
anonymity, clearly stated that they would not depose against
the detenu for fear of retaliation as the detenu had
threatened to do away with anyone who would depose against
him. The evidence of witnesses shows that the detenu was
indulging in transporting of illicit 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’ 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 activities of the detenu, therefore, squarely
fall within the deeming provision enacted in the explanation
to Section 2(a) of the Act. It, therefore, follows that
the activities of the detenu were not merely prejudicial to
the maintenance of ‘law and order’ but were prejudicial to
the maintenance of ‘public order’. [246D-H, 247-A]
Om Prakash v. Commissioner of Police & Ors., [1989]
Supp. (2) SCC 576; Rashidmiya v. Police Commissioner,
Ahmedabad & Anr., [1989] 3 SCC 321; Piyush Kantilal Mehta v.
Commissioner of Police, Ahmedabad City and Anr., [1989]
Supp. (1) SCC 322, referred to.
3. The maximum period of detention is prescribed under
Section 13 of the Act which lays down that a person may be
detained in pursuance of any detention order made under the
Act, which has been confirmed under Section 12 of the Act.
Therefore, the order of detention in the instant case,
though it was for a period of more than three months, is not
vitiated since the order is in conformity with the said
provisions.
[248D, E]
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JUDGMENT:
CRIMINAL APPELLATE/ORIGINAL JURISDICTION: Criminal
Appeal No. 47 of 1992.
From the Judgment and Order dated 13/14.8.1991 of the
Bombay High Court in Crl. W.P.No. 597 of 1991.
WITH
Writ Petition (CRL.) No. 1247 of 1991.
238
(Under Article 32 of the Constitution of India)
Dr. Y.S. Chitale and V.B. Joshi for the
appellants/Petitioners.
Altaf Ahmed, Addl. Solicitor General, S.M. Jadhav and
A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by
Dr. A.S. ANAND, J. Leave is granted in SLP(Crl) No.
3227 of 1991. Writ Petition No. 1247 of 1991 filed under
Article 32 of the Constitution of India is also taken up for
disposal along with the aforesaid appeal, which is directed
against the judgment of the Division Bench of the Bombay
High Court in Criminal Writ Petition No. 597 of 1991, since
it is the same order of detention which has been called in
question in both the cases.
2. Both the appeal and the Writ-Petition have been
filed by the wife of on Harvinder Singh @ Kukku, who has
been detained vide order of detention, dated 26th February
1991, issued under the provisions of Section 3(1)n of the
Maharashtra Prevention of Dangerous Activities of
Slumlords, Bootleggers and Drug Offenders Act, 1981
(hereinafter referred to as the ‘Act’, The appellant had
questioned the detention of her husband through Criminal
Writ-Petition No. 597 of 1991 before the Bombay High Court
on carious grounds. The High Court, however, did not find
any merit in the challenge and being of the opinion that
there was no infirmity in the order of detention dismissed
the Writ-Petition. Appellant has filed an appeal by Special
Leave against the High Court judgment and has also
questioned the order of detention through a petition under
Article 32 of the Constitution. The facts leading to the
detention of the detenu as reflected in the grounds of
detention are as follows:
3. The Police personnel, attached to Matunga Police
Station, where maintaining a watch on vehicles passing near
the fish market with a view to check transportation of
illicit liquor. On 9th September 1991, a black Fiat Car,
bearing registration no. BLD 1674, was seen coming from the
direction of Chembur at about 0845 hrs. The police party
signalled the driver to a stop. Instead of stopping the
car, the detenu, who was driving the car, accelerated the
car and drove it straight towards the police party that they
were likely to be run over and to save themselves they
jumped on the foot-path. While so driving the car towards
the police party, the detenu also hurled abuses at them and
shouted that he would kill them. The detenu kept driving
the car recklessly
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and then dashed against a pedestrian causing him injury and
even at that time instead of stopping the car shouted that
whosoever would come in his way would be killed. The detenu
kept on driving the car recklessly and dashed the car
against a stationery taxi damaging it. As a result of the
collision the car came to a stop. As soon as the car
stopped, the police party, with a view to apprehend the
detenu and the other persons sitting in the car rushed
towards them. The detenu and two other persons sitting
inside the car jumped out and escaped. A police case came
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to be registered with the Matunga Police Station against the
detenu and two unknown persons for offences under Section
307, 324 read with Section 34 of the Indian Penal Code. The
detenu made himself scarce and could not be immediately
arrested. He was eventually traced and arrested on 13th
September, 1990, when he made a statement admitting that he
was engaged in transporting illicit liquor on 9.9.1990 and
also admitted his escape after hitting the pedestrian and
the stationery taxi after driving the car towards the police
party which signalled to stop him. The detenu was produced
before the Metropolitan Magistrate on 14.9.1990. and was
released on bail on the condition that he should attend the
police station between 6.00 to 8.00 p.m. everyday till
24.9.1990. However, the detenu failed to carry out the
condition which led to the cancellation of his bail on
24.9.1990 and he was taken into custody. The detenu then
moved the Sessions Court against cancellation of his bail.
His application was accepted and he was admitted to bail.
4. The motor car of the detenu,bearing registration no.
BLD 1674, was seized by the police and from the dicky of the
car, 12 rubber tubes and from the rear seat of the car 13
rubber tubes, each containing about 40 litres of illicit
liquor were recovered. Samples of the seized illicit liquor
were sent to the Chemical Analyst whose report, dated 10th
of January 1991, indicated that the samples contained ethyl
alcohol 34% v/v in water.
During the investigation of the case, the police
recorded statements of four witnesses who were, however,
willing to make statements only on the condition of
anonymity, fearing retaliation from the detenu in case they
deposed against him.
Keeping in view the activities of the detenu and the
fact that he had been enlarged on bail, the detaining
authority on being satisfied that unless an order of
detention was made against the detenu, he was likely to
indulge in activities prejudicial to the maintenance of
‘public order’ in future also, made an order of detention on
26th February 1991. The grounds of detention were served on
the detenu. The order of the detention was confirmed by the
State Government after considering the report of the
Advisory Board constituted under
240
Section 12(1) of the Act. The order of detention was
questioned before the High Court, as already noticed through
Criminal Writ Petition No. 597 of 1991, unsuccessfully.
5. Two basic arguments have been raised by Dr. Chitale
before us to question the order of detention.
The thrust of the first argument is that the activities
of the detenu could be said to be prejudicial only to the
maintenance of "law and order" and not prejudicial to the
maintenance of "public Order". Learned counsel stressed
that the activities, which had been attributed to the
detenu, howsoever 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 detention for acting in a manner prejudicial to
‘public order’ was unjustified.
The second argument of the learned counsel is based on
the proviso to Section 3(2) of the Act, which according to
the learned counsel, prohibited the State Government to make
an order of detention, in the first instance exceeding three
months and since the order of detention in the instant case
was for a period exceeding three months, it was categorised
as bad in law and invalid. No other contention was pressed.
6. "Public Order" or "Law and Order" are two different
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and distinct concepts and there is abundance of authority of
this Court drawing a clear distinction between the two.
With a view to determining the validity or otherwise of the
order of detention, it would be necessary to notice the
difference between the two concepts.
7. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC
740 speaking for the majority, Hidayatullah J. pointed out
the distinction in the following words:
"One has to imagine three concentric circles. Law
and order represents the largest circle within
which is the next circle representing public order
and the smallest circle represents security of
State. It is then easy to see that an act may
affect law and order but not public order just as
an act may affect public order but not security of
the State."
8. In Arun Ghosh v. State of West Bengal, [1970] 1SCC
98 again Hidayatullah J. speaking for the Court, pointed out
that what in a given
241
situation may be a matter covered by law and order, on
account of its impact on the society may really turn out to
be one of ‘public order’. It was observed:
"Take the case of assault on girls. A guest at a
hotel may kiss or make advances to half a dozen
chambermaids. He may annoy them and also the
management but he does not cause disturbance of
public order. He may even have a fracas with the
friends of one of the girls but even then it would
be a case of breach of law and order only. Take
another case of a man who molests women in lonely
places. As a result of his activities girls going
to colleges and schools are in constant danger and
fear. Women going for their ordinary business are
afraid of being waylaid and assaulted. The
activity of this man in its essential quality is
not different from the act of the other man but in
its potentiality and in its effect upon the public
tranquility there is a vast difference. The act of
the man who molests the girls in lonely places
causes a disturbance in the even tempo of living
which is the first requirement of public order. He
disturbs the society and the community. His act
makes all the women apprehensive of their honour
and he can be said to be causing disturbance of
public order and not merely committing individual
actions which may be taken note of by the criminal
prosecution agencies." [p.100]
9. A Constitution Bench in Madhu Limaye v. Ved Murti,
[1970] 3 SCC 738 again dealt with the question and it was
observed:
"In our judgment, the expression ‘in the interest
of public order’ in the Constitution is capable of
taking within itself not only those acts which
disturb the security of the State or act within
order publique as described but also certain acts
which disturb public transquillity or are breaches
of the peace. It is not necessary to give the
expression a narrow meaning because, as has been
observed, the expression ‘in the interest of public
order’ is very wide."
[p. 756]
10. In Kanu Biswas v. State of West Bengal, [1972] 3
SCC [p.756] 831, this Court opined:
"The question whether a man has only committed a
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breach of law and order or has acted in a manner
likely to cause a disturbance of the public
order,... is a question of degree and the extent of
the reach of the act upon the society . Public
order is what the French
242
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, as laid down in the
above case, is: Does it lead to disturbance of the
current of 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
society undisturbed?"
[p. 834]
11. In Ashok Kumar v. Delhi Administration, [1982] 2
SCC 403 this Court re-examined the question and observed:
"The true distinction between the areas of ‘public
order’ and ‘law and order’ lies not in the nature
of quality of the act, but in the degree and extent
of its reach upon society. The distinction between
the two concepts of ‘law and order’ and ‘public
order’ is a fine one but this does not mean that
there can be no overlapping. 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 touch the problem of law and order,
while in another it might affect public order. The
act by itself therefore is not determinant of its
own gravity. It is the potentiality of the act to
disturb the even tempo of the life of the community
which makes it prejudicial to the maintenance of
public order."
[pp. 409-10]
12. In Subhash Bhandari v. District Magistrate,
Lucknow, [1987] 4 SCC 685, a Division Bench of this Court
has held:
"A solitary act of omission or commission can be
taken into consideration for being subjectively
satisfied, by the detaining authority to pass an
order of detention if the reach, effect and
potentiality of the act is such that it disturbs
public tranquility by creating terror and panic in
the society or a considerable number of the people
in a specified locality where the act is alleged to
have been committed. Thus it is the degree and
extent of the reach of the act upon the society
which is vital for considering 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."
[pp. 686-87]
243
13. It is not necessary to multiply the authorities on
this point.
14. From the law laid by this Court, as noticed above,
it follows that it is the degree and extent of the each of
the objectionable activity upon the society which is vital
for considering 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’. It is the
potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the maintenance
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of ‘public order’. Whenever an order of detention is
questioned, the courts apply these tests to find out whether
the objectionable activities upon which the order of
detention is grounded fall under the classification of being
prejudicial to "public order" or belong to the category of
being prejudicial only to ‘law and order’. An order of
detention under the Act would be valid if the activities of
a detenu affect ‘public order’ but would not be so where the
same affect only the maintenance of ‘law and order’. Facts
of each case have, therefore, to be carefully scrutinised to
test the validity of an order of detention.
15. Dr. Chitale did not dispute that if the activities
of the detenu have the potential of disturbing the even
tempo of the society or community, those activities would be
prejudicial to maintenance of ‘public order’, he however,
relied upon certain judgment to urge that "bootlegging"
activity of the detenu in the instant case, could not affect
public tranquillity and did not have any potential of
affecting public order to justify his detention.
Reliance was placed on Om Prakash v. Commissioner of
Police & Ors., [1989] Supp. 2 SCC 576; Rashidmiya v. Police
Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321 and Piyush
Kantilal Mehta v. Commissioner of Police, Ahmedabad City and
Anr., [1989] Supp. 1 SCC 322 and it was urged that in these
cases an activity of "bootlegging" was not held to fall
within the mischief of being prejudicial to ‘public order’.
16. Indeed, in Piyush Kantilal Mehta, Om Prakash and
Rashidmiya cases (supra), the Court found that the
activities of the detenu, a bootlegger in those cases, as
detailed in the grounds of detention, were of a general and
vague nature and those activities did not adversely affect
the maintenance of ‘public order’ under Section 3(4) of the
Gujarat Prevention of Anti-Social Activities’ Act, 1985.
The Bench in Rashidmiya and Om Prakash’s cases (supra)
relied upon the judgment in Piyush Kantilal Mehta’s case and
on the facts of those cases quashed the order of detention.
In Piyush Kantilal Mehta’s case (supra), the
allegations, in the ground of detention, were that the
detenu was a bootlegger, who was indulging in the
244
sale of foreign liquor and that he and his associates were
also using force and violence and beating innocent citizens
creating a sense of terror. The detenu was caught
possessing English liquor with foreign markings as well as
foreign liquor. The Court found that the detenu was only a
bootlegger and he could not be preventively detained under
the provisions of the Gujarat Prevention of Anti-Social
Activities’ Act, 1985 unless as laid down in sub-Section (4)
of Section 3 of that Act, his activities as a bootlegger had
the potential of affecting adversely or were likely to
affect adversely, the maintenance of ‘public order’ and on
the peculiar facts of the case, it was found that the
alleged activities of the detenu did not affect ‘public
order’ but created only a law and order problem.
Dr. Chitale then placed reliance on State of U.P. v.
Hari Shankar Tewari, [1987] 2 SCC 490; Ahmedhussain
Shaikhhussain v. Commissioner of Police, Ahmedabad and Anr.
[1989] 4 SCC 751; T. Devaki v. Government of Tamil Nadu &
Ors., [1990] 2 SCC 456; Ashok Kumar v. Delhi Administration
and Ors., [1982] 2 SCC 403; but none of these judgments lay
down tests different than the ones which we have culled out
from the judgments of this court referred to earlier. Those
cases were decided on their peculiar facts. The courts were
very much alive to the conceptual difference between
activities prejudicial to law and order and those
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prejudicial to public order and since on facts it was found
that the activities of the detenu were not prejudicial to
‘public order’, the orders of detention were quashed.
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 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
affects ‘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 tranquility
there is a vast difference. In each case, therefore, the
courts have to see the length, magnitude and intensity of
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. Where the
245
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 activities of a detenu have,
therefore, to be judged in the totality of the circumstances
to find out whether those activities have any prejudicial
affect 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’.
19. The Maharashtra Prevention of Dangerous Activities
of Slumlords, Bootleggers and Drug-Offenders Act, 1981 was
enacted to provide for preventive detention of slumlords,
bootleggers and drug-offenders for preventing their
dangerous activities prejudicial to the maintenance of
‘public order’.
Section 2(a) defines the meaning of the expression
"acting in any manner prejudicial to the maintenance of
public order" and reads as follows:
"acting in any manner prejudicial to the
maintenance of public order" means
(i) in the case of a slumlord, when he is engaged,
or is making preparations for engaging, in any of
his activities as a slumlord, which affect
adversely, or are likely to affect adversely, the
maintenance of public order;
(ii) in the case of a bootlegger, when he is
engaged, or is making preparations for engaging, in
any of his activities as a bootlegger, which affect
adversely, or are likely to affect adversely, the
maintenance of public order;
(iii) in the case of drug-offender, when he is
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engaged or is making preparations for engaging, in
any of his activities as drug-offender, which
affect adversely, or are likely to affect
adversely, the maintenance of public order;
Explanation: For the purpose of this clause (a),
public order shall be deemed to have been affected
adversely, or shall be deemed
246
likely to be affected adversely, inter alia, if
any of the activities of any of the persons
referred to in this clause, directly or indirectly,
is causing or calculated to cause any harm, danger
or alarm of a feeling of insecurity, among the
general public or any section thereof or a grave or
widespread danger to life or public health;"
20. The explanation to Section 2(a) (supra) brings into
effect a legal fiction as to the adverse affect on ‘public
order’. It provides that if any of the activities of a
person referred to in clause [ (i)-(iii) ] of Section 2(a)
directly or indirectly causes or is calculated to cause any
harm, danger or alarm or a feeling of insecurity among the
general public or any Section thereof or a grave or a wide-
spread danger to life or public health, then public order
shall be deemed to have been adversely affected. Thus, it
is the fall out of the activity of the "bootlegger" which
determines whether ‘public order’ has been affected within
the meaning of this deeming provision or not. This
legislative intent has to be kept in view while dealing with
detentions under the Act.
21. Let us now consider the facts of the instant case.
The substance of the grounds on which detention has
been ordered is that the detenu is bootlegger and in
furtherance of his activities and to escape from the
clutches of law, he even tried to run over, by his speeding
vehicle, the police party, which tried to signal him to a
stop, exhorting all the time that he would kill anyone who
would come in his way. He continued to drive in a reckless
speed and dashed against a pedestrian causing injuries to
him, where again he had exhorted that anyone who would come
in his way would meet his death. Four witnesses-A,B,C,D,-
who agreed to give statements to the police on conditions of
anonymity, clearly stated that they would not depose against
the detenu for fear of retaliation as the detenu had
threatened to do away with anyone who would depose against
him. The evidence of these witnesses show that the detenu
was indulging in transporting of illicit liquor and
distributing the same in the locality and was keeping arms
with him while transporting liquor. The activities of the
detenue, therefore, were not merely "bootlegging" as was the
position in Om Prakash, Rashidmiya and Piyush Kantilal
Mehta’s cases (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
activities 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
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the detenu were not merely prejudicial to the maintenance of
‘law and order’ but were prejudicial to the maintenance of
"public order". The first argument raised by Dr. Chitale
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against the order of detention, therefore, fails.
22. Coming now to the second argument of Dr. Chitale to
the effect that proviso to Section 3(2) of the Act,
prohibited the State Government to make an order of
detention in the first instance, exceeding three months, and
since the order of detention in the instant case had been
made for a period exceeding three months, it was vitiated.
Section 3 reads as follows:
"Power to make orders detaining certain persons.
(1) The State Government may, if satisfied with
respect to any person that with a view to
preventing him from acting in any manner
prejudicial to the maintenance of public order, it
is necessary so to do, make an order directing that
such person is detained.
(2) If, having regard to the circumstances
prevailing or likely to prevail in any area within
the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State
Government is satisfied that it is necessary so to
do, it may, by order in writing, direct, that
during such period as may be specified in the order
such District Magistrate or Commissioner of Police
may also, if satisfied as provided in sub-section
(1), exercise the powers conferred by the said sub-
section:
Provided that the period specified in the order
made by the State Government under this sub-section
shall not, in the first instance, exceed three
months but the State Government may, if satisfied
as aforesaid that it is necessary so to do, amend
such order to extend such period from time to time
by any period not exceeding three months at any one
time.
(3) When any order is made under this section by an
officer mentioned in sub-section (2), he shall
forthwith report that fact to the State Government,
together with the grounds on which the order has
been made and such other particulars as, in his
opinion, have a bearing on the matter, and no such
order shall remain in force for more than twelve
days after the making thereof, unless in the
meantime, it has been approved by the State
Government."
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A plain reading of the Section shows that the State
Government under Section 3(1), if satisfied, with respect to
any person that with a view to preventing him from acting in
a manner prejudicial to the maintenance of "public order",
it is necessary so to do , make an order of detention
against the person concerned. Sub-section (2) of Section 3
deals with the delegation of powers by the State Government
and provides that if the State Government is satisfied,
having regard to the circumstances prevailing in any area
within the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, it is necessary to
empower District Magistrate or the Commissioner of Police,
as the case may be to exercise the powers of the State
Government to order detention of a person as provided by
sub-Section (1), then the State Government may, by an order
in writing direct that during such period as may be
specified in the order, the District Magistrate or the
Commissioner of Police may also if satisfied as provided in
sub-section (1), exercise the powers of the State Government
as conferred by sub-Section (1). The proviso to sub-Section
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(2), only lays down that the period of delegation of powers,
specified in the order to be made by the State Government
under sub-section (2), delegating to the District Magistrate
or the Commissioner of Police the powers under sub-section
(1) shall not in the first instance exceed three months.
The proviso, therefore, has nothing to do with the period of
detention of a detenu. The maximum period of detention is
prescribed under Section 13 of the Act which lays down that
a person may be detained in pursuance of any detention order
made under the Act, which has been confirmed under Section
12 of the Act. It is, therefore, futile to contend that the
order of detention in the instant case was vitiated because
it was for a period of more than three months. The second
argument, therefore, also fails.
24. We are, in the facts and circumstances of the case,
satisfied that the Division Bench of the Bombay High Court
rightly dismissed the Criminal Writ Petition No. 597 of 1991
and that order does not call for any interference. The
Appeal fails and is dismissed.
25. Writ Petition No. 1247 of 1991 also fails and is
hereby dismissed since the order of detention does not
suffer from any infirmity.
G.N. Appeal/Petition dismissed.