Mrs. Harpreet
Kaurharvinder Singh Bedi Vs. State of Maharashtra & Anr [1992] INSC 20 (21 January 1992)
Anand,
A.S. (J) 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.
HEAD NOTE:
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 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 236
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 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]
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 239 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 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 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 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 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 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 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 247 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 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." 248
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 (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.
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