ARJUN S/O RATAN GAIKWADversusTHE STATE OF MAHARASHTRA AND OTHERS

                 [2024] 12 S.C.R. 637 : 2024 INSC 968

                     Arjun S/o Ratan Gaikwad
                                 v.
                The State of Maharashtra and Others
                     (Criminal Appeal No. 5204 of 2024)
                               11 December 2024
               [B.R. Gavai* and K.V. Viswanathan, JJ.]


                            Issue for Consideration
       Appellant was detained under s.3(2) of the Maharashtra Prevention
       of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,
       Dangerous Persons, Video Pirates, Sand Smugglers and Persons
       Engaged in Black-Marketing of Essential Commodities Act, 1981 to
       prevent him from indulging in the activities of bootlegging thereby
       preventing the maintenance of peace. High Court dismissed the
       writ petition filed by the appellant.

                                   Headnotes†
       Maharashtra Prevention of Dangerous Activities of Slumlords,
       Bootleggers, Drug Offenders, Dangerous Persons, Video
       Pirates, Sand Smugglers and Persons Engaged in Black-
       Marketing of Essential Commodities Act, 1981 (MPDA Act) –
       Appellant was detained to prevent him from indulging in the
       activities of bootlegging thereby preventing the maintenance
       of peace – Subjective satisfaction of the detaining authority
       that the activities of the appellant were prejudicial to the
       maintenance of public order, if were substantiated:
       Held: No – None of the activities which form the basis of the
       detention order can be said to be affecting public order – All the
       six cases on the basis of which the proposal for detention was
       passed were with regard to selling of illicit liquor – Though six cases
       were registered, the Excise Authority did not find it necessary to
       arrest the appellant even on a single occasion – Every breach of
       peace does not lead to public disorder – When a person can be
       dealt with in exercise of powers to maintain the law and order,
       unless the acts of the proposed detainee are the ones which have
       the tendency of disturbing the public order a resort to preventive
       detention which is a harsh measure would not be permissible –
       As to whether a case would amount to threat to the public order

* Author
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       or as to whether it would be such which can be dealt with by the
       ordinary machinery in exercise of its powers of maintaining law
       and order would depend upon the facts and circumstances of each
       case – Impugned judgment of the High Court as also the order
       of detention passed by the detaining authority and the order of
       confirmation, quashed and set aside. [Paras 6, 13, 15, 20]

                                Case Law Cited
       Ram Manohar Lohia v. State of Bihar and Another [1966] 1 SCR
       709 : 1965 INSC 175; Ameena Begum v. State of Telangana and
       Others [2023] 11 SCR 958 : (2023) 9 SCC 587 – relied on.

                                  List of Acts
       Maharashtra Prevention of Dangerous Activities of Slumlords,
       Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates,
       Sand Smugglers and Persons Engaged in Black-Marketing of
       Essential Commodities Act, 1981.

                               List of Keywords
       Preventive detention; Detention order; Detained; Detaining
       authority; Bootlegging; Preventing the maintenance of peace;
       Selling of illicit liquor; Excise Authority; Breach of peace; Public
       disorder; Proposed detainee; Harsh measure; Public order; Law
       and order; Threat to the public order; Ordinary machinery; Powers
       of maintaining law and order; Subjective satisfaction; Activities
       prejudicial to the maintenance of public order.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       5204 of 2024
       From the Judgment and Order dated 20.08.2024 of the High Court
       of Judicature at Bombay at Aurangabad in CRWP No. 698 of 2024

                           Appearances for Parties
       Nachiketa Joshi, Sr. Adv., Sandeep Sudhakar Deshmukh, Nishant
       Sharma, Ankur S. Savadikar, Advs. for the Appellant.
       Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,
       Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Advs. for the
       Respondents.
[2024] 12 S.C.R.                                                         639

     Arjun S/o Ratan Gaikwad v. The State of Maharashtra and Others


                 Judgment / Order of the Supreme Court

                                    Judgment

      B.R. Gavai, J.

1.    Leave granted.
2.    The appeal is taken up for hearing.
3.    This appeal challenges the judgment and order dated 20th August
      2024 passed by the Division Bench of the High Court of Judicature
      at Bombay, Bench at Aurangabad in Criminal Writ Petition No. 698
      of 2024, thereby dismissing the petition filed by the appellant herein.
4.    Shorn of details, the facts leading to the present appeal are as under:
      4.1 The District Magistrate, Parbhani passed an order under
          Section 3(2) of the The Maharashtra Prevention of Dangerous
          Activities of Slumlords, Bootleggers, Drug-Offenders, Dangerous
          Persons, Video Pirates, Sand Smugglers and Persons Engaged
          in Black-Marketing of Essential Commodities Act, 1981
          (hereinafter referred to as ‘MPDA Act’) and thereby detaining
          the appellant for a period of twelve months, so as to prevent him
          from indulging in the activities of bootlegging thereby preventing
          the maintenance of peace.
      4.2 The detaining authority had basically relied on the six cases
          registered against the appellant by the State Excise Department.
          The grounds of detention were communicated to the appellant
          on 5th March 2024. The detention order was approved on 14th
          March 2024 by the Home Department and the confirmation order
          was passed on 8th May 2024 by the Government of Maharashtra.
          Several grounds were raised in the petition including the ground
          that there was no nexus with the alleged activities of the appellant
          and the order of the detention, inasmuch as there was a gap of
          about two and a half months between the proposal for detention
          being forwarded to the detaining authority and the detention
          order being passed. It is also submitted that the authority had
          acted in a mechanical manner and without there being any
          material, had passed the detention order. It was submitted that
          in any case, the alleged activities do not constitute a threat to
          the public order and they would fall amongst cases which can
          be dealt with by ordinary law and order machinery.
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5.     We have heard Shri Nachiketa Joshi, learned Senior Counsel
       appearing for the appellant and Shri Siddharth Dharmadhikari, learned
       Standing Counsel for the State of Maharashtra.
6.     Though, arguments have been advanced on various issues and
       a number of authorities have been cited, we find that the appeal
       deserves to be allowed on a short ground, inasmuch as none of the
       activities which form the basis of the detention order can be said to
       be affecting public order.
7.     The basis on which the proposal for detention is passed is the
       following six cases which are registered by the Authority against
       the appellant:-

       Sr. Office with       Crime No., Date and       Charge          Remark
       No. whom              Section                   sheet and
           offence                                     Date
           registered
       1     Sub-            20/2023 dt. 29/1/2023     SCC             Subjudice
             Inspector,                                No.211/2023
                             Maharashtra Prohibition
             State Excise,
                             Act Sec. 65(e)          dt. 25.3.2023
             Pathhari
       2     Inspector,      61/2023 dt. 18/3/2023     SCC             Subjudice
             State Excise,                             No.335/2023
                             Maharashtra Prohibition
             Parbhani
                             Act Sec. 65(e)          dt. 23.8.2023
       3     Inspector,      89/2023 dt. 24/4/2023     SCC             Subjudice
             State Excise,                             No.338/2023
                             Maharashtra Prohibition
             Parbhani
                             Act Sec. 65(e)          dt. 23.8.2023
       4     Inspector,      126/2023 dt.              SCC             Subjudice
             State Excise,   17/05/2023                No.358/2023
             Parbhani
                             Maharashtra Prohibition dt.
                             Act Sec. 65(d)(e)       04.09.2023
       5     Inspector,      253/2023 dt.              SCC             Subjudice
             State Excise,   09/09/2023                No.419/2023
             Parbhani
                             Maharashtra Prohibition dt. 20.9.2023
                             Act Sec. 65(e)(f)
       6     Inspector,      327/2023 dt.                              On
             State Excise,   18/10/2023                                investigation
             Parbhani
                             Maharashtra Prohibition
                             Act Sec. 65(e)(f)
[2024] 12 S.C.R.                                                                641

     Arjun S/o Ratan Gaikwad v. The State of Maharashtra and Others


8.    Apart from that the detaining authority has also relied on the
      statements of two witnesses, who have not been named.
9.    Insofar as all the six cases are concerned, they are pertaining to the
      illicit manufacture of handmade liquor. It is to be noted that these
      cases are registered during the period between 29th January 2023
      to 18th October 2023. It is to be noted that in none of these cases
      the authorities found it necessary to arrest the appellant herein.
10. Insofar as the reliance on the statement of the two unnamed witnesses
    are concerned, the statements are identical in toto. What is stated is
    that the appellant is engaged in production of handcrafted liquor for
    the last few years. It is stated that due to these activities there have
    been various problems for the Government machinery. It is stated that
    due to the fear and terror created by the appellant nobody appears
    to raise complaint against him. It is further stated that due to these
    activities of bootlegging the nearby residents have left their houses
    and shifted elsewhere. The first witness statement further states
    that on some day in the last month at 07:00 P.M., when the witness
    was returning from work towards his residence, the appellant met
    him near the Gram Panchayat Office and quarreled with him and
    threatened by saying that if his liquor business was no more, he will
    not spare him. It is further stated that he had not filed a complaint
    with the police against the appellant herein due to fear.
11. Insofar as another witness is concerned, almost similar statement
    is recorded and the only difference is that the date mentioned here
    is somewhere in the month of November, 2023 and the time is
    20:30 P.M. Incidentally, both these witnesses happened to meet the
    appellant at the Gram Panchayat Office.
12. The distinction between a public order and law and order has been
    succinctly discussed by Hidayatullah, J. (as His Lordship then was)
    in the case of Ram Manohar Lohia v. State of Bihar and Another1:
             “54. ... 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


1    (1966) 1 SCR 709 : 1965 INSC 175
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            ground that they were disturbing public order. Suppose
            that the two fighters were of rival communities and one
            of them tried to raise communal passions. The problem
            is still one of law and order but it raises the apprehension
            of public disorder. Other examples can be imagined. The
            contravention of law always affects order but before it can
            be said to affect public order, it must affect the community
            or the public at large. A mere disturbance of law and order
            leading to disorder is thus not necessarily sufficient for
            action under the Defence of India Act but disturbances
            which subvert the public order are.…
            55. It will thus appear that just as ‘public order’ in the
            rulings of this Court (earlier cited) was said to comprehend
            disorders of less gravity than those affecting ‘security of
            State’, ‘law and order’ also comprehends disorders of
            less gravity than those affecting ‘public order’. 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.”
13. It could thus be seen that a Constitution Bench of this Court in
    unequivocal terms held that every breach of peace does not lead
    to public disorder. It has been held that when a person can be dealt
    with in exercise of powers to maintain the law and order, unless the
    acts of the proposed detainee are the ones which have the tendency
    of disturbing the public order a resort to preventive detention which
    is a harsh measure would not be permissible.
14. Recently, a Bench of this Court has referred to various judgments of
    this Court while following the law laid down by this Court in the case
    of Ram Manohar Lohia (supra), it will be appropriate to reproduce
    the following paragraph from the judgment of this Court in the case
    of Ameena Begum v. State of Telangana and Others.2
            “38. For an act to qualify as a disturbance to public order,
            the specific activity must have an impact on the broader


2   [2023] 11 SCR 958 : (2023) 9 SCC 587
[2024] 12 S.C.R.                                                            643

   Arjun S/o Ratan Gaikwad v. The State of Maharashtra and Others


          community or the general public, evoking feelings of fear,
          panic, or insecurity. Not every case of a general disturbance
          to public tranquillity affects the public order and the question
          to be asked, as articulated by Hon’ble M. Hidayatullah,
          C.J. in Arun Ghosh v. State of W.B. [Arun Ghosh v. State
          of W.B. (1970) 1 SCC 98 : 1970 SCC (Cri) 67], is this :
          (SCC p. 100, para 3)
                “3. … Does it [the offending act] lead to
                disturbance of the current of life of the community
                so as to amount a disturbance of the public order
                or does it affect merely an individual leaving the
                tranquillity of the society undisturbed?”
          39. In Arun Ghosh case [Arun Ghosh v. State of W.B.
          (1970) 1 SCC 98 : 1970 SCC (Cri) 67] , the petitioning
          detenu was detained by an order of a District Magistrate
          since he had been indulging in teasing, harassing and
          molesting young girls and assaults on individuals of a
          locality. While holding that the conduct of the petitioning
          detenu could be reprehensible, it was further held that it
          (read : the offending act) “does not add up to the situation
          where it may be said that the community at large was
          being disturbed or in other words there was a breach
          of public order or likelihood of a breach of public order.
          (Arun Ghosh case [Arun Ghosh v. State of W.B. (1970) 1
          SCC 98 : 1970 SCC (Cri) 67], SCC p. 101, para 5)”
          40. In the process of quashing the impugned order, the
          Hidayatullah, C.J. while referring to the decision in Ram
          Manohar Lohia [Ram Manohar Lohia v. State of Bihar,
          1965 SCC OnLine SC 9 : (1966) 1 SCR 709] also ruled :
          (Arun Ghosh case [Arun Ghosh v. State of W.B. (1970) 1
          SCC 98 : 1970 SCC (Cri) 67], SCC pp. 99-100, para 3)
                “3. … Public order was said to embrace more of
                the community than law and order. 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
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                the extent of causing a general disturbance of
                public tranquillity. 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. … It is always a question of degree
                of the harm and its effect upon the community.
                … This question has to be faced in every case
                on facts. There is no formula by which one case
                can be distinguished from another.”
          41. In Kuso Sah v. State of Bihar [Kuso Sah v. State of
          Bihar (1974) 1 SCC 185 : 1974 SCC (Cri) 84], Hon’ble Y.V.
          Chandrachud, J. (as the Chief Justice then was) speaking
          for the Bench held that : (SCC pp. 186-87, paras 4 & 6)
                “4. … The two concepts have well defined
                contours, it being well-established that stray and
                unorganised 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. …
                ***
                6. … The power to detain a person without the
                safeguard of a court trial is too drastic to permit
                a lenient construction and therefore Courts must
                be astute to ensure that the detaining authority
                does not transgress the limitations subject to
                which alone the power can be exercised.”
                                                   (emphasis supplied)
15. As to whether a case would amount to threat to the public order
    or as to whether it would be such which can be dealt with by the
    ordinary machinery in exercise of its powers of maintaining law and
    order would depend upon the facts and circumstances of each case.
    For example, if somebody commits a brutal murder within the four
    corners of a house, it will not be amounting to a threat to the public
    order. As against this, if a person in a public space where a number of
[2024] 12 S.C.R.                                                           645

   Arjun S/o Ratan Gaikwad v. The State of Maharashtra and Others


     people are present creates a ruckus by his behaviour and continues
     with such activities, in a manner to create a terror in the minds of the
     public at large, it would amount to a threat to public order. Though,
     in a given case there may not be even a physical attack.
16. In the present case, all the six cases are with regard to selling of illicit
    liquor. Though six cases are registered, the Excise Authority did not
    find it necessary to arrest the appellant even on a single occasion. It
    would have been a different matter, had the appellant been arrested,
    thereafter released on bail and then again the appellant continued
    with his activities. However, that is not the case here.
17. Insofar as statements of the two unnamed witnesses are concerned,
    the allegations are as vague as it could be. In any case the statements
    which were stereotype even if taken on its face value would show
    that the threat given to the said witnesses is between the appellant
    and the said witnesses. The statements also do not show that the
    said witnesses were threatened by the appellant in the presence
    of the villagers which would create a perception in the mind of the
    villagers that the appellant herein is a threat to the public order.
18. In that view of the matter, we do not find that the subjective satisfaction
    of the detaining authority that the activities of the appellant were
    prejudicial to the maintenance of public order is substantiated.
19. The appeal deserves to be allowed on this short ground.
20. The impugned judgment and order passed by the High Court dated
    20th August 2024 so also the order of detention dated 5th March
    2024 passed by the detaining authority and the order of confirmation
    dated 8th May 2024 are quashed and set aside and the appeal is,
    accordingly, allowed.
21. The appellant is directed to be released forthwith, if his detention is
    not required in any other case.
22. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey