Supreme Court of India
MRS. HARPREET KAUR HARVINDER SINGH BEDIversusSTATE OF MAHARASHTRA & ANR.
- Citation
- 1992 INSC 17
- Decided
- 21 January 1992
- Disposal
- Dismissed
- Bench
- S RATNAVEL PANDIAN
Holding
The detenu's conduct was prejudicial to public order and the three‑month limit in the proviso applies only to the delegation of power, not to the detention period, rendering the detention order valid.
Summary
Harpreet Kaur, the wife of Harvinder Singh, challenged the detention of her husband under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981. The husband had been involved in bootlegging, threatened police, attempted to run them over, injured a pedestrian and escaped, leading to a detention order under Section 3(1) that was later confirmed by the State Government. The petition argued that his conduct only disturbed "law and order" and not "public order", and that the Act’s proviso to Section 3(2) barred a first‑instance detention exceeding three months. The Supreme Court examined the distinction between law‑and‑order and public‑order disturbances, applying the test of the degree and reach of the activity on society, and held that the husband’s actions created fear, threatened public tranquility and therefore prejudiced public order. The Court also clarified that the three‑month limit in the proviso relates to the delegation of power, not to the period of detention, which is governed by Section 13. Consequently, the detention order was valid and the appeal and writ petition were dismissed.
Issues considered
- The activities of the detenu constitute a disturbance of public order or merely of law and order.
- The proviso to Section 3(2) of the Maharashtra Prevention Act prohibits a first‑instance detention order exceeding three months.
Legislation cited
- Constitution of Indias. Article 32
- Indian Penal Code, 1860s. 307, s. 324, s. 34
- Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981s. 12, s. 13, s. 2(a), s. 3(1), s. 3(2)
Subjects
preventive detentionpublic orderlaw and orderbootleggingMaharashtra Prevention Actdetention periodSection 3(2) provisoArticle 32constitutional challenge
Judgment
A MRS. HARPREE1' KAUR
HARVINDER SINGH BED!
v.
STATE OF MAHARASHTRA & ANR.
JANUARY 21, 1992
B
[S. RA1NAVEL PANDIAN AND A.S. ANAND, JJ.]
Maharashtra Prevention of Dangerous Activities of Slumlords Bootleg-
gers and Drug Offenders Act, 1981:
C Section 3(1>-Detention order-Purpose of detention-Distinction be-
tween 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-()rder-Whether vitiated.
With a view to check transportation or illicit liquor, the Police were
D maintaining a watch and the speeding car driven hy'the detenu, husband
or the appellant/petitioner was signalled to stop. Instead, the detenu ac-
celerated the car and drove straight towards the Police party. They had
to jump on to the root path to save themselves. The detenu. hurled abuses
and threatened to kill the Police Officers. He kept on driving the car reck-
lessly, dashed against a pedestrian thereby injuring him. Ultlmately the
E 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 or
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 J
F persons For offences under Sections 307, 324 read with Section 34 IPC. JI
The detenu made himselr scarce and could not he arrested immediately.
However, after a rew days he was arrested and he admitted the
incident including his escape. He was produced beFore the Magistrate and
G 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 or his bail, which was admitted
and he was granted bail.
H During the investigation or the case, Police could record statements
234
HARPREETKAUR v. STATE 235
~
from four witnesses, who deposed only on condition of anonymity as they A
feared retaliation from the detenu.
The detaining authority on being satisfied that the detenu was likely
to indulge in activities prejudicial to the maintenance of 'public order'
p-d 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 B
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.
c
On behalf of the appellant/petitioner, it was argued that the activi·
ties 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) or the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug D•
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, E
HELD : 1.1. Crime is a revolt against the whole society and an
attack on the civilization or 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 F
)o·
extent or 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
c
out whether his activities are prejudicial to maintenance of 'public order'
t
or only 'law and order'. (244E·G]
1.2 Respect for law has to be maintained in the interest of the soeiety
and discouragement of a criminal is one of the ways to maintain it. The I-.
236 SUPREME COURT REPORTS (1992) 1 s. c. R.
A objectionable activities of a detenu have, tbererore, to be judged in the
or
totality the circumnance to find out whether those activities have any
prejudicial affect on the society IS a whole or not. If tbe society, and not
only an individual, suffers on account of the questionable activities or 1
person, then those activities are prejudicial to the mainteDBDCe or 'public
order' and are not merely prejudicial to the maintenance or'law and
B order'. An order or detention would be valid ii tbe activities or a detenu
affect 'public order' but would not be so where the same affect only the
maintenance of 'law and order'. (2458-C]
Ram Manohar Lohia v. Stall ofBihar, AIR 1%6 SC 740; ArlUI Ghosh
v. State of West Bengal, (1970] 1 SCC 98; Madhu. Umaye v. Ved Murti,
C (1970)3 SCC 738; KanuBiswas v.State of West Bengal, (1972] 3 SCC 831;
As/wk Kumar v. Delhi Admjnistralion, [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) 2 SCC 490; Ahmedhus-
sain Shaikhhussain v. Commissioner of Police, Ahmedabad & Anr., (1989) 4
D SCC 751; T. Devaki v. Government of Tamil Nadu & Ors., (1990) 2 SCC 45'i;
refened to.
2.1 The explanation to Section 2(a) of tbe Mabarmhtra Prevention
or Dangerous Activities of Slumords, Bootleggers and Drug offenders
Act, 1981 brings into effect a legal fiction IS to tbe adverse affect on
E 'public order'. It provides that if any of tbe activities of a person referred
to in clauses ( (!}{iii) ) of Section 2(a) directly or indirectly causes or is
calculated to cause any harm, danger or alarm or • feeling of insecurity
among tbe general public or any section thereof or 1 grave or a wide-
spread danger to life or public health, then public order shall be deemed
to have been adversely affected. Tims, it is tbe rau out or the activity or
F tbe 'bootlegger' which determine whether 'public order' bali been af-
fected within the meaning of deeming provision or not. This legislative
intent bm to be kept in view while dealing with detentions under the
act. (246-B, CJ
G 2.2 In tbe instant case, the substance or the grounds on which
detention bas been ordered is that tbe detenu is a bootlegger and in
furtherance or bis activities and to escape from the clutches or 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 be would kill
anyone who would come in bis way. He continued to drive in a reckless
H speed and dmbed against a pedestrain causing injuries to him, where
HARPREET KAUR v. STATE 237
again he had exhorted that anyone who woo Id come in his way would A
meet his death. Four witnesses- A, B, C, D,-who agreed to give
statements to the police on cooditions or anonymity, clearly stated that
they would not depose against the detenu ror rear or retaliation as the
detenu had threatened to do away with anyone who would depose against
him. The evidence or witnesses shows that the detenu was indulging in
or
transporting illicit liquor and distributing the same in the locality and B
was keeping arms with him while transporting liquor. The activities or the
detenu, tbererore, were not merely 'bootlegging' but went rurtber to
adversely affect the even tempo or the society by creating a reeling or
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 po- c
tential or the society, and not merely some individual, to suffer. The
activities or the .detenu, thererore, squarely fall within the deeming
provision enacted in the explanation to Section 2(a) of the Act. It,
therefore, follows that the activities ol the detenu were not merely
prejudicial to the maintenance or 'law and order' but were prejudicial to '"""
the maintenance of 'public order'. (2441))..ff, 247-A) D
Om Prakash v. Commissioner of Police & Ors., (1989) Supp. (2) SCC
576; Rashidmiya v. Police Commissioner, Ahmedabad & Anr., (1989) 3 SCC
321; PiyMSh Kantilal Mehta v. Commissioner of Police, Ahmedabad City and
Anr., (1989) Supp. (1) SCC 322, referred to.
E
or
3. The maximum period detentioo is prescribed under Section 13
or the Act which lays down that a persoo may~ detained in pursuance ol
any detention order made under the Act, which bas been conrirmed
under Section 12 of the Act. Therefore, the crder or detention In
or
the instant case, though it was for a period more than three months,
~ is not .vitiated since the order is in cooformity with the said pro.-isions.
[248D, E)
F
CRIMINAL APPELLATE/ORIGINAL JURISDICTION: Criminal Ap-
peal No. 47 of 1992.
G
From the Judgment and Onler dated 13/14.8.1991 of the Bombay High
Court in Crl. W.P.No. 597of1991.
WITH
Writ Petition (CRL.) No. 1247 of 1991. H
238 SUPREME COURT REPORTS [1992] 1 S.C.R.
A (Under Article 32 of the Constitution of India)
Dr. Y.S. Chitale and V.B. Joshi for the Appellants/Petitioners.
Altaf Ahmed, Addi. Solicitor General, S.M. Jadhav and A.S. Bhasme
for the Respondents.
B
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
C 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 Wr't-Petition have been filed by the wife
of one Harvinder Singh @ Kukku, who has been detained vide order of
D detention, dated 26th February 1991, issued under the provisions of Section
3(1) 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
various grounds. The High Court, however, did not find any merit in the
E 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 Anicle 32 of the Constitution. The
facts leading to the detention of the detenu as reflected in the grounds of
detention are as follows:
F
3. The Police personnel, attached to Matunga Police Station, were
maintaining a watch on vehicles JlllSSing near the fish market with a view to
check transponation of illicit liquor. On 9th September 1990, a black Fiat Car,
bearing registration no. BLD 1674, was seen coming from the direction of
G 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 pany giving rise to an
apprehension in the mind of the police pany that they were likely to be run
over and to save themselves they jumped on to the foot-path. While so driving
the car towards the police 'party, the detenu also hurled abuses at them and
H shouted that he would kill them. The detenu kept driving the car recklessly
HARPREET KAUR v. STATE [ANAND, J.] 239
and then dashed against a pedestrian causing him injury and even at that time A
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 j•1mped out and B
escaped. A police case came 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
l he was engaged in ttansporting illicit liquor on 9.9.1990 and also admitted his C
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 D
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 rubes and from E
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 F
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 G
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 fuwre 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 confinned by the Siate Govern-
ment after considering the repon of the Adv~ Board constiwted under H
240 SUPREME COURT REPORTS [1992) I S.C.R.
A 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.
B
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 aHributed to the detenu, howsoever
reprehensible they may be, had no impact on the general members of the
C 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
D 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 and distinct
E 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 ofBihar, AIR 1966 SC 740 speaking
F 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
G representing public order and the smallest circle represents secu-
rity 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 ArWI Ghosh v. State of West Bengal. [1970] lSCC 98 again
H Hidayatullah J. speaking for die Court, pointed out that what in a given
HARPREET KAUR v. STATE [ANAND, J.] 241
r situation may be a matter covered by law and order, on account of its impact
on the society may really tum out to be one of 'public order'. It was observed:
A
"Talce the case of assault on girls. A guest at a hotel may kiss or
malce advances to half a doren chambermaids. He may annoy
them and also the mangement but he does not cause disturbance
of public order. He may even have a fracas with the friends of one B
of the girls but even then it would be a case of breach of law and
order only. Talce another case of a man who moleslS 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 iis essential quality is not different
from the act of the other man but in iis potentiality and in iis effect
c
upon the public tranquillity there is a vast difference. The act of
the man who molesis the girls in lonely places causes a distur-
bance in the even tempo of living which is the first requirement
of public order. He disturbs the society and the community. His
act malces all the women apprehensive of their honour and he can D
be said to be causing disturbance of public order and not merely
committing individu;il actions which may be taken note of by the
criminal prosecution agencies." [p. 100]
µ
9. A Constitution Bench in Madhu Limaye v. Ved Murti, [1970] 3 SCC
738 again dealt with the question and it was observed: E
"In our judgment, the expression 'in the interest of public order'
in the Constitution is capable of taking within iiself not only those
acts which disturb the security of the State or act within ordre
publique as described but also certain aclS which disturb public
~· tranquillity or are breaches of the peace. It is not necessary to give
the expression a narrow meaning because, as has been observed,
F
'r 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, G
this Court opined:
"The question whether a man has only committed a 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 H
242 SUPREME COURT REPORTS [1992] l S.C.R.
A call "ordre publique" and is something more than ordinary main-
tenance 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 :nerely an individual leaving the
B tranquillity of society undisturbed?"
[p. 834]
11. In Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403 this
Court re-examined the question and observed:
c '"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
D 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 prejudi-
E cial to the maintenance of public order."
[pp. 409-10]
12. In SubhashBhandari v.District Magistrate, Lucknow, [1987] 4 SCC
685, a Division Bench of this Court has held:
F
"A solitary act of omission or commission can be taken into con-
sideration for being subjectively satisfied, by the delaining au-
thority to pass an order of detention if the reach, effect and
potentiality of the act is such that it disturbs public tranquillity by
G 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
H public order."
[pp. 686-87]
HARPREET KAUR v. STATE [ANAND, J.] 243
'~
13. It is not necessary to multiply the authorities on this point. A
'
14. From the law laid by this Court, as noticed above, it follows that it
is the degree and extent of the reach of the objectionable activity upon the
society which is vital for considering the question whether a man has commit-
ted 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 B
tempo of life of the community which makes it prejudicial to the maintenance
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.
c
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 D
activities would be prejudicial to maintenance of 'public order', he however,
relied upon certain judgments 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., E
(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.I sec 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'.
F
16. Indeed, in Piyush Kamila/ 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 maintenanw of
'public order' under Section 3(4) of the Gujarat Prevention of Anti-Social G
Activities' Act, 1985. The Bench in Rashidmiya and Om Parkash' 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 detenb'\"as a bootlegger, who was indulging in the H
244 SUPREME COURT REJ'()RTS [1992] I S.C.R.
A sale of foreign liquor and that he and his associates were also using force and
violence and beating innocent citizens creating a sense of tenor. The detenu
was caught possessing English liquor with foreign markings as well as foreign
liquor. The Coun 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 sul>-Section (4) of
B 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 faclS 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.
C Dr. Chilale then placed reliance on Stale of U.P. v. Hari Shankar
Tewari, [1987] 2 SCC 490; Ahmedhussain ShaiJ:hhussain v. Commissioner of
Police, Ahmedabad and Anr. [1989] 4 SCC 751; T. Devaki v. Goverrunent of
Tamil Nadu & Ors., [1990] 2 SCC 456; Ashok Kumar v. Delhi Administra-
tion 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
D coun 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 prejudicial to public order and since
on facts it was found that the activities of the detenu were oot prejudicial to
'public order', the orders of detention were quashed.
E 17. Crime is a revolt against the whole society and an auack on the
civilization of the day. Order is the basic need of any organised civilized
society and any attempt to disturb that order affeclS the society and the
community. The distinction between breach of 'law and order' and distur-
bance 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
F ajfeclS 'law and order' and those which distwb 'public order' may not be
different but in their potentiality and effect upon even tempo of the society
and public tranquillity there is a va-;t difference. In each case, therefore, the
courts have to see the length, magnitude and intensity of the questionable
activities of a pcison to find out whether his activities are prejudicial to main-
G tenance of 'public order' or only 'law and order'.
18. There is oo 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 iis case, the case fails, though
H that failure does not imply that no crime had been committed. Where the
HARPREET KAUR v. STATE [ANAND, J.] 245
."(
prosecution case fails, because witnesses are reluctant on account of fear of A
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 B
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'.
c
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 pre-
venting their dangerous activities prejudicial to the maintenance of 'public
order'.
D
Section 2(a) defines the meaning of the expression "acting in any
manner prejudicial to the maintenance of public order" and reads as follows:
"(a) "acting in any manner prejudicial to the maintenance of public
order" means
E
(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 F
making preparations for engaging, in any of his activities as a
bootlegger, which affect adversely, or are likely to affect ad-
versely, the maintenance of public order;
(iii) in the case of drug-offender, when he is engaged or is making G
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 H
246 SUPREME COURT REPORTS [1992] 1 S.C.R.
A likely to be affected adversely, inier alia, if any of the activities of °'r'"
any of the persons referred to in this clause, directly or indirectly,
is causing or calculated to cause any harm, danger or alann of a
feeling of insecurity, among the general public or any section
thereof or a grave or widespread danger to life or public health;"
B 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 clauses [ (i)-(iii) J of Section 2(a) rurectly
or indirectly causes or is calculated to cause any hann, danger or alann 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
c 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.
D
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
E drive in a reckless speed and dashed against a pedestrian causing injuries to
him, where again he had exhoned that anyone who would come in his way
would meet his death. Four wimesses-A,B,C,D,-who agreed to give state-
men ts to the police on conditions of anonymity, clearly stated that they would
i
not depose against the detenu for fear of retaliation as the detenu had threat-
ened to do away with anyone who would depose against him. The evidence
F of these wimesses shows that the detenu was indulging in transporting of
illicit liquor and distributing the same in the locality and was keeping anns
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 Me/ua' s cases (supra) but went further to adversely affect
G the even tempo of the society by creating a feeling of insecurity among those
who were likely to <kpose 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
H Act. and it therefore, follows as a logical consequence that the activities of
HARPREET KAUR v. STATE [ANAND, J.] 247
the detenu were not merely prejudicial to the maintcnancc of 'law and order' A
but were prejudicial to the maintenance of "public order". The first argument
raised by Dr. Chitale 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 Ac4 prohibited the Slate Government to make
an order of detention in the first instance, exceeding three months, and since B
· the order of delCntion 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. (I) The State C
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 D
prevail in any area within the local limits of the jurisdiction of a
District Magistrate or a Commissioner of Police, the State Gov-
ernment is satisfied that it is necessary so to do, it may, by order
in writing, diree4 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 (I), exercise the E
powers conferred by the said sub-section:
Provided that the period specified in the order made by the Slate
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 F
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 the fact to G
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 Slate Government."
H
248 SUPREME COURT REPORTS [1992] 1 S.C.R.
A 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 IO
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 Stale Government and provides that if the State Government
B is satisfied, having regard IO the circumstances prevailing in any area within
the local limits of the jurisdiction of a District Magistrale or a Commissioner
of Police, it is necessary IO empower District Magistrate or the Commissioner
of Police, as the case may he 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
C be specified in the order, the District Magistrate or the Commissioner of
Police may also if satisfied as provided in sub-section I1), exercise the powers
of the State Government as conferred by sub-Section (1). The proviso to sub-
Section (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 IO the District Magistrale or the Commissioner of Police the
D 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 onler of detention in
E 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 '
G 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. AppeaV Petition dismiued.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "preventive detention"Sign in to search