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CASE NO.: Appeal (crl.)  567 of 2008

PETITIONER: Collector & Dist. Magistrate & Ors

RESPONDENT: S. Sultan

DATE OF JUDGMENT: 31/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO.  567 OF 2008 (Arising out of SLP (Crl.) No. 993 of 2007) With CRIMINAL APPEAL NO.  568 OF 2008 (Arising out of SLP (Crl.) No.1308 of 2007) With  CRIMINAL APPEAL NO.  570 OF 2008 (Arising out of SLP (Crl.) No.2089 of 2007) With  CRIMINAL APPEAL NO.  569 OF 2008 (Arising out of SLP (Crl.) No.2090 of 2007) With  CRIMINAL APPEAL NO.  571 OF 2008 (Arising out of SLP (Crl.) No.2091 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted in each case.  

2.      Challenge in these appeals is to the order passed in each  case by a Division Bench of the Andhra Pradesh High Court in  writ petitions filed for quashing the order of detention passed  by the Collector and District Magistrate, Nellore, under  Sections 3(1), 3(2) read with Section 2(a) and (g) of A.P.  Prevention of Dangerous Activities of Bootleggers, Dacoits,  Drug Offenders, Goondas, Immoral Traffic Offenders and Land  Grabbers Act, 1986 (in short the ’Act’) in respect of Shri  Pralayakaveri Bhaskar. Sri Pamanji Chenna Reddy, Sri  Pralayakaveri Gnanaiah, Sri Voila Babu and Sri Pamanji Babu  (each described as ’detenu’ hereinafter)   

3.      Respondent claiming to be a friend of  the detenu  challenged the validity of the order stating it to be illegal,  arbitrary, unconstitutional and violative of Article 22 of the  Constitution of India, 1950 (in short the ’Constitution’). The  main ground of challenge was that the grounds of detention  referred to certain acts which are punishable under the Indian  Penal Code, 1860 (in short ’IPC’), as well as the Explosive  Substances Act, 1908 (in short ’Explosive Act’) and, therefore,  shows non-application of mind.   

4.      It was the stand of the writ petitioner who had filed the  Habeas Corpus Petition that the instances referred to do not  affect the public order at all and in any event since some of the  grounds related to offences punishable under the Explosive  Act, the detention under the Act was impermissible. The High

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Court accepted the stand and quashed the order of detention.  

5.      In support of the appeals, learned counsel for the  appellants submitted that Section 2(g) of the Act defines a  ’goonda’.  Undisputedly, all the instances detailed in the order  of detention related to offences punishable under IPC and also  under some of the provisions of the Explosive Act.  Therefore,  the impugned judgment of the High Court is indefensible.  

6.      In response, learned counsel for the respondent  submitted that some of the instances are not relatable to  offences punishable under IPC and, therefore, Section 2(g) of  the Act has no application. In any event, it is submitted that  most of the incidents highlighted are stale incidents and do  not in any manner constitute violation of public order.  

7.      Section 2(g) of the Act reads as follows:

"Goondas means a person, who either by  himself or as a member of or leader of a gang,  habitually commits, or attempts to commit or  abets the commission of offences punishable  under Chapter XVI or Chapter XVII or Chapter  XXII of the Indian Penal Code."          

8.      Undisputedly, in all the instances given in the grounds of  detention, the indicated offences are punishable under either  Chapters XVI or XVII and/or XXII. In addition, in certain  instances reference has been made to offences punishable  under the Explosive Act.    9.      Therefore, it is not correct as observed by the High Court  that some of the grounds related to offences punishable under  Sections 3 and 5 of the Explosive Act only. It is really not so.  Even otherwise, all instances indicated are in respect of  offences covered by the definition of the expression ’goonda’.  The test is whether the detenu is a "goonda" in terms of  Section 2(g) of the Act. Reference to other provisions does not  affect that conclusion. There may be cases where offences may  be punishable under different statutes.  Inevitably, therefore,  reference has to be made to them when giving details of an  incident.  That will not be a factor to render detention invalid.

10.     So far as the stand that incidents were stale incidents, it  is to be noted that most of the incidents highlighted are of  November 2005. The order of detention was passed on  20.3.2006. The State Government approved the order of  detention on 28.3.2006. The Advisory Board confirmed the  order of detention and based on the recommendation of the  Advisory Board, the Government confirmed the order of  detention for a period of 12 months from the date of detention.  That being so, it cannot be said that the order of detention was  based on stale incidents.

11.     So far as the question as to whether the public order was  involved, the grounds of detention elaborately described the  acts which created dangerous and terrorized situations in the  village and frequently disturbed public peace and public order  because of the acts of violence and danger was caused to the  lives of the villagers. In all these instances deadly weapons  were used causing injuries to various persons.    

12.     The crucial issue, therefore, is whether the activities of  the detenu were prejudicial to public order. While the

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expression ’law and order’ is wider in scope inasmuch as  contravention of law always affects order. ’Public order’ has a  narrower ambit, and public order could be affected by only  such contravention which affects the community or the public  at large. Public order is the even tempo of life of the  community taking the country as a whole or even a specified  locality. The distinction between the areas of ’law and order’  and ’public order’ is one of the degree and extent of the reach  of the act in question on society. It is the potentiality of the act  to disturb the even tempo of life of the community which  makes it prejudicial to the maintenance of the public order. If  a contravention in its effect is confined only to a few  individuals directly involved as distinct from a wide spectrum  of public, it could raise problem of law and order only. It is the  length, magnitude and intensity of the terror wave unleashed  by a particular eruption of disorder that helps to distinguish it  as an act affecting ’public order’ from that concerning ’law and  order’. The question to ask is: "Does it lead to disturbance of  the current life of the community so as to amount to a  disturbance of the public order or does it affect merely an  individual leaving the tranquility of the society undisturbed"?  This question has to be faced in every case on its facts.           13.     "Public order" is what the French call ’ordre publique’  and is something more than ordinary maintenance of law and  order. The test to be adopted in determining whether an act  affects law and order or public order, is: Does it lead to  disturbance of the current life of the community so as to  amount to disturbance of the public order or does it affect  merely an individual leaving the tranquility of the society  undisturbed?  (See Kanu Biswas v. State of West Bengal (AIR  1972 SC 1656).

14.     "Public order" is synonymous with public safety and  tranquility: "it is the absence of disorder involving breaches of  local significance in contradistinction to national upheavals,  such as revolution, civil strife, war, affecting the security of the  State". Public order if disturbed, must lead to public disorder.  Every breach of the peace does not lead to public disorder.  When two drunkards quarrel and fight there is disorder but  not public disorder. They can be dealt with under the powers  to maintain law and order but cannot be detained on the  ground that they were disturbing public order. Disorder is no  doubt prevented by the maintenance of law and order also but  disorder is a broad spectrum, which includes at one end small  disturbances and at the other the most serious and  cataclysmic happenings. (See Dr. Ram Manohar Lohia v. State  of Bihar and Ors. (1966 (1) SCR 709)

15.     ’Public Order’, ’law and order’  and the ’security of the  State’ fictionally draw three concentric circles, the largest  representing law and order, the next representing public order  and the smallest representing security of the State. Every  infraction of law must necessarily affect order, but an act  affecting law and order may not necessarily also affect the  public order. Likewise, an act may affect public order, but not  necessarily the security of the State. The true test is not the  kind, but the potentiality of the act in question. One act may  affect only individuals while the other, though of a similar  kind, may have such an impact that it would disturb the even  tempo of the life of the community. This does not mean that  there can be no overlapping, in the sense that an act cannot  fall under two concepts at the same time. An act, for instance,  affecting public order may have an impact that it would affect  both public order and the security of the State. [See Kishori

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Mohan Bera v. The State of West Bengal  (1972 (3) SCC 845);    Pushkar Mukherjee v. State of West Bengal (1969 (2) SCR  635); Arun Ghosh v. State of West Bengal (1970 (3) SCR 288);  Nagendra Nath Mondal v. State of West Bengal (1972 (1) SCC  498).

16.     The distinction between ’law and order’ and ’public order’  has been pointed out succinctly in Arun Ghosh’s case (supra).  According to that decision the true distinction between the  areas of ’law and order’ and ’public order’ is "one of degree and  extent of the reach of the act in question upon society". The  Court pointed out that "the act by itself is not determinant of  its own gravity. In its quality it may not differ but in its  potentiality it may be very different". (See Babul Mitra alias  Anil Mitra v. State of West Bengal and Ors. (1973 (1) SCC 393,  Milan Banik v. State of West Bengal (1974 (4) SCC 504).

17.     The true distinction between the areas of law and order  and public order lies not merely in the nature or quality of the  act, but in the degree and extent of its reach upon society.  Acts similar in nature, but committed in different contexts and  circumstances, might cause different reactions. In one case it  might affect specific individuals only, and therefore touches  the problem of law and order only, while in another it might  affect public order. The act by itself, therefore, is not  determinant of its own gravity. In its quality it may not differ  from other similar acts, but in its potentiality, that is, in its  impact on society, it may be very different.  

18.     The two concepts have well defined contours, it being  well established that stray and unorganized crimes of theft  and assault are not matters of public order since they do not  tend to affect the even flow of public life. Infractions of law are  bound in some measure to lead to disorder but every  infraction of law does not necessarily result in public disorder.  Law and order represents the largest scale within which is the  next circle representing public order and the smallest circle  represents the security of State. "Law and order" comprehends  disorders of less gravity than those affecting "public order" just  as "public order" comprehends disorders of less gravity than  those affecting "security of State". [See Kuso Sah v. The State  of Bihar and Ors.  (1974 (1) SCC 185, Harpreet Kaur v. State  of Maharashtra (1992 (2) SCC 177, T.K. Gopal v. State of  Karnataka (2000 (6) SCC 168, State of Maharashtra v. Mohd.  Yakub (1980 (2) SCR 1158)]. In the instant case, the incidents  related to public order situations.               19.     Looked at from any angle, the impugned judgment of the  High Court cannot be sustained and is set aside. However, the  period of detention as fixed in the detention order is already  over. It would be open to the State Government to consider  whether there is a need for detaining the detenu for the  balance period covered by the original order of detention.

20.     The appeals are allowed.