20 September 2004
Supreme Court
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STATE OF U.P. Vs SANJAI PRATAP GUPTA @ PAPPU .

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-001040-001040 / 2004
Diary number: 16720 / 2003
Advocates: PRADEEP MISRA Vs SUSHMA SURI


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CASE NO.: Appeal (crl.)  1040 of 2004

PETITIONER: State of U.P. and Anr.                                   

RESPONDENT: Sanjai Pratap Gupta @ Pappu and Ors.             

DATE OF JUDGMENT: 20/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of SLP(Crl.)No. 4267/2003)

ARIJIT PASAYAT, J.

       Leave granted.

       Respondent No.1-Sanjai Pratap Gupta@Pappu  (hereinafter referred  to as the ’detenu’) was detained pursuant to an order of detention  passed under Section 3(2) of the National Security Act, 1980 (in short  the ’Act’). The order dated 23.12.2002 was served on the detenu on that  day itself. According to the order and grounds of detention, the  activities of the detenu were considered to be prejudicial to public  order. Specific reference was made to an incident dated 13.10.2002. One  Anand Kumar Jain lost his life because of the firing done by the detenu  and his associates. Attempt to take away the life of one Ajay Kumar  Jain, son of aforesaid Anand Kumar Jain was made, but luckily he had  escaped. Case was registered for commission of offences punishable  under Sections 302 and 307 of the Indian Penal Code, 1860 (in short the  ’IPC’). Reference was also made to several earlier incidents which  according to the detaining authority highlighted the criminal  antecedents of the detenu and as to how he was creating a sense of  terror in the minds of the general public. With a view to prevent him  from committing similar prejudicial acts and to maintain public order  the order of detention was purportedly passed.  

       A habeas corpus petition was filed under Article 226 of the  Constitution of India, 1950 (in short the ’Constitution’) by the detenu  questioning validity of the order of detention. By the impugned  judgment the High Court accepted the prayer and quashed the order of  detention. Before the High Court stand of the detenu was that the two  aspects highlighted in the grounds of detention were not separable and  were intimately linked with one another. As necessary documents to  substantiate the allegations relating to earlier incidents were not  supplied to the detenu that rendered the order of detention invalid.  

Stand of the State on the other hand was that the two aspects  were separable. Even if for the sake of arguments one part was held to  be not supportable that really was of no consequence in view of Section  5-A of the Act. The High Court proceeded on the basis that the two  aspects highlighted were inter-dependent and there was no question of  separately considering the two aspects. Accordingly, the order of  detention was passed.  

In support of the appeal, learned counsel for the appellant-State

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submitted that the scope and ambit of Section 5-A of the Act has been  completely lost sight of by the High Court. One aspect which was  highlighted related to the criminal antecedents of the detenu and as to  how there were many cases registered against him in the past for being  treated him as a history sheeter. The second aspect related to a  particular incident. The effect of the act was highlighted in the  grounds of detention which was clearly spelt out as to how even tempo  of life got disturbed by the act. Though, the detenu was in custody,  taking into account the likelihood of his release on bail the order of  detention was passed. Necessary documents like the bail application  etc. were also supplied to the detenu.  Learned counsel for the Union  of India supported the stand of the State.  

In response, learned counsel for the detenu submitted that the  two aspects indicated in the grounds of detention cannot be separated,  one has its effects on the other and the High Court has rightly held  them to be inseparable. In view of the factual position, Section 5-A of  the Act has no application.  Additionally, the incident which formed  the foundation for the order of detention was at the most law and order  situation and not a public order situation. Finally, it was submitted  that even if it is held that the judgment of the High Court is bad yet  direction should not have been given for taking him back to detention  because of long passage of time and in the absence of any live link  between the alleged incident and the requirement for his continued  detention.  A single act could not have been considered as sufficient  to affect public order warranting detention. Strong reliance is placed  on Sunil Fulchand Shah v. Union of India and Ors. (2000 (3) SCC 409)  

       The crucial issue is whether the activities of the detenu were  prejudicial to public order. While the 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.                   "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).

       "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

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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)

       ’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 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).

       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).

       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.  

       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)].      

The stand that a single act cannot be considered sufficient for  holding that public order was affected is clearly without substance.  

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It is not the number of acts that matters.  What has to be seen is the  effect of the act on even tempo of life, the extent of its reach upon  society and its impact.   

From the grounds of detention it is apparent that the same was  not a law and order situation but a public order situation as rightly  contended by learned counsel for the State. Relevant portion of the  grounds of detention reads as follows:  

       "From the letter of the Superintendent of  Police Mainpuri and the report of  Incharge of the  Police Station Kotwali  Mainpuri annexed with report  of the Additional Superintendent of Police, Mainpuri  and from the records annexed therewith, this is  evident that you are a person of criminal tendency  and in collaboration with your associates, and by  creating fear and terror on the force of illegal  arms, realize forcibly and illegally money from the  traders and property-dealers, you by use of criminal  force, by indulging in mar-peet (physical assault)  and by resorting to other criminal acts are habitual  to commit crime by terrorizing that person whoever  opposes these increasing criminal activities, fear  and terror psychosis has gripped the minds of the  common public. In this very backdrop you for  establishing your hegemony, while going on a scooter,  along with your other associates on 13.10.2002 at  11.00 a.m. in the busiest market of town Mainpuri,  near the Bada Chauraha (crossing) in front of the  Shafi Hotel on the road itself and in the day time,  stopped Shri Anand Kumar Jain, property dealer and by  firing bullets indiscriminately committed his heinous  murder in a planned manner. When, at the time of the  commission of this criminal act deceased’s son Ajai  Kumar Jain wanted to save his father, you fired  aiming at him who any how or other saved himself by  fleeing away.  

       Nobody dared, in the said busy market who could  save the deceased from you and your associates.  Consequent on the resorting by you and your  associates to the firing publicly and the show of  your criminal force, the atmosphere of fear and  terror was created in the entire market. On account  of the firing resorted to in busy market and the show  of your criminal force therein, pandemonium prevailed  among the visiting people who fled away and hid  themselves in safe places. The entire market became  empty and the public order was totally breached. The  dead body of the deceased remained lying on the road  and bleeding continued profusely. A very awful scene  was created. Nobody dared to approach the dead body  of the deceased. The deceased’s son Ajai Kumar Jain  by saving his life anyhow or other, fled away and  informed the Kotwali Mainpuri about this murder case  and the occurrence and lodged a written report with  Police Station, whereupon the first information  report was recorded at 11.45 a.m. on the basis of  which Crime No.1475/2002 was registered under Section  307/302 of the Indian Penal Code. The particulars of  this crime were recorded in brief in the General  Diary at Report No.22 at 11.45 a.m. True copies of  the FIR and report of the G.D. are annexed herewith  as Annexures 1 and 2."     

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A bare perusal of the quoted portion from the grounds of  detention makes it clear that two aspects i.e. one relating to criminal  background of antecedents and other relating to a particular incident  were treated separately. This becomes apparently clear because the  detaining authority in the backdrop of the criminal antecedents  referred to the particular act.  Therefore, one was the general  background, and the other was the particular incident. They are clearly  separable.  

Section 5-A of the Act was introduced to take care of the  situations when one or more of the grounds can be separated from the  other grounds for justifying detention.  

In Attorney General for India and Ors. v. Amratlal Prajivandas  and Ors. (1994 (5) SCC 54)  it was observed that where the detention  order is based on more than one ground, by a legal fiction it would be  deemed that there are as many orders of detention as there are grounds  which means that each of such orders is an independent one.  In that  case the Constitution Bench was considering scope of Section 5-A of  Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974 (in short ’COFEPOSA Act’) which is in pari materia with  Section 5-A of the Act.   In view of the factual position analysed, the  inevitable conclusion is that Section 5-A is applicable to the case and  the High Court was not justified in holding to the contrary. The High  Court’s judgment is therefore clearly indefensible.  

The residual question to be considered is whether the detenu has  to go back to detention, after it is held that the judgment of the High  Court is not sustainable.  There cannot be any straight-jacket formula  for dealing with such cases. It would depend upon circumstances of each  case. For determining the question as to whether the detenu has to go  back to detention, the factual position has to be analysed.  It has to  be seen whether the effect of the previous acts was continuing or  likely to recur.  When background facts of present case are considered  it is evident that the time gap is not very wide and for considerable  length of time the matter is pending in this Court and the detenu had  taken nearly three months to file his counter to the special leave  petition filed. Judged from these angles it is clear that the live link  is not snapped and the apprehension of the detaining authority about  the detenu’s prejudicial activities cannot be faulted. The impugned  judgment of the High Court is set aside. The detenu shall surrender  forthwith for serving the remainder of the period of detention. The  appeal is allowed to the aforesaid extent.