Somnath Alias Devidas vs State Of Maharashtra And Others

M.W.Chandwani, J

Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel for the parties.

By this writ petition under Article 226 of the Constitution of India, the petitioner seeks to quash and set aside the impugned order dated 08.06.2023 passed by the respondent no.2 under section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-offenders, Dangerous persons, video Pirates, Sand Smugglers and Persons engaged in Black Marketing Essential Commodities Act, 1981 (Amendment of 2015)(for short, ‘MPD Act’). The petitioner further challenges to the order dated 17.07.2023 passed by the respondent no.1 under section 3 of the MPD Act, confirming the order dated 08.06.2023 of the respondent no.2.

Brief resume of the facts which give rise to this petition are stated as under:

The proposal for detention was made by the Assistant Police Inspector of Police Station, Bitergaon to detain the petitioner under the provisions of MPD Act on the ground that the petitioner is dangerous person. Number of offences have been registered against the petitioner. The detaining authority, after relying on two crimes registered within last six months as well as the in-camera statements of witness ‘A’ and ‘B’ came to the conclusion that the petitioner has created a sense of terror in people’s mind. The witnesses and victim do not come forward and complaint because of the fear. The activities of petitioner are adversely likely to affect, the maintenance of public order. Therefore, the respondent no.2–detaining authority has passed the impugned order dated 08.06.2023 and was supplied to the petitioner alongwith the ground for detention. The said order of respondent no.2 was confirmed by the respondent no.1–State Government by its order dated 17.07.2023 under the provisions of MPD Act. Feeling aggrieved with the said order, the present writ petition came to be filed.

Heard Shri R.M. Daga, learned counsel for the petitioner and Shri M.J. Khan, learned Additional Public Prosecutor for respondents. We have perused the record.

Though various grounds have been raised in the petition but the learned counsel for the petitioner principally raised the following grounds:

(a) That none of the two offences relied upon by the detaining authority, forming basis for passing the detention order is detrimental to the maintenance of the public order and those offences can be at most termed as acts which are disruptive of law and order.

(b) There is no live link of the alleged incidents stated by the witness ‘A’ with the detention order.

In answer to the allegations made in the petition, the respondent no.2 has filed affidavit-in-reply dated 18.10.2023, through the Collector and District Magistrate, Yavatmal reiterating its stand that the petitioner was considered as a “dangerous person” under the MPD Act and sought to be justified his detention and supported the impugned orders.

The bone of contention of the petitioner is that two crimes which formed basis of passing the detention order are personal disputes between the petitioner and the complainant. First Crime No.15/2023 is registered with Police Station, Bitergaon for the offences punishable under sections 323, 324, 294, 504 and 506 of the Indian Penal Code (for short, ‘IPC’), wherein the friend of the complainant was beaten on the ground that why he stay with the complainant and not with the petitioner and his associates. Even, the complainant was assaulted by the knife by the associates of the petitioner. On the complaint of Rajesh Kondewad, the aforesaid offences came to be registered against the petitioner.

In second crime, which is relied by the detaining authority is Crime No.138/2023 registered with Bitergaon Police Station for the offences punishable under sections 326, 294, 506 read with section 34 of the IPC, in this case again complainant is Rajesh Kondewad. It appears that on the count of kicking by the complainant to the brother of the petitioner, the petitioner assaulted the complainant–Rajesh Kondewad with iron rod, due to which complainant’s nose bone scratched and there was bleeding from the eye socket.

Thus, both crimes are in nature of personal dispute between the petitioner and complainant – Rajesh Kondewad and accused on account of rivalry between the complainant and the petitioner. No doubt, these crimes are necessarily a breach of law and order, but, not a breach of public order. There is difference between breach of public order and breach of law and order. Contextually, we may refer the decision of the Supreme Court in the case of Kanu Biswas Vs. State of West Bangal (1972) 3 SCC 831 on the question of what constitutes breach of “public order” as opposed to breach of “law and order” :-

“6. The distinction between the concept of public order and that of law and order has been adverted to by this Court in a number of cases. In the case of Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709, Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large. He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security order, just as an act might affect public order but not the security of the State. In the subsequent case of Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of a town where there is communal tension. A man stabs a member of' the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An Act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."

The question where 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, according to the dictum laid down in the above case is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order 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 tranquillity of the society undisturbed ? ”

Applying the ratio laid down in the above referred decisions, the facts alleged in two crimes referred to in the detention order, in our considered opinion, could not form the basis or material for recording subjective satisfaction by the authority in terms of Section 3 of the MPD Act, as none of the acts in those two crime would either be termed to be disruptive of maintenance of public order or any manner detrimental to its maintenance. Clearly, in this case regular Penal Laws would deal with those two offences, which are under trial before the concerned Court.

This takes us to the in-camera statements of the witnesses. Perusal of in-camera statements clearly show that there is non-application of mind by the detaining authority whilest dealing with in-camera statements and placing reliance upon them for passing the detention order. The confidential statement of witness ‘A’ did not refer any specific incident except incident allegedly occurred in the year 2012. It refers about the petitioner that he leads luxury life by selling alcohol illegally and hurting sentiments of other religious by gathering unlawful assembly and creating common tension. Then, the statement refers to incident of year 2018 alleging that he tried to create communal tension between two groups. Thus, the statement of witness ‘A’ refers to incident, which is more than five years old prior to the order. It being stale material, having no live link with the action of detention sought by the authority and could not have been considered for having subjective satisfaction by the detention order. Perusal of confidential statement of witness ‘B’ refers to the same incident on which second crime was registered, which we have already dealt with and labelled as personal dispute between the petitioner and the complainant– Rajesh Kondewad in the said crime. Therefore, this statement also could not be considered for arriving at subjective satisfaction for passing the impugned order.

It appears that two incidents which were relied by the detaining authority wherein the complainant is common, weighed in the mind of detaining authority or the proposing authority. The authorities felt apprehension of repeating the offence by the petitioner against the complainant in the said crime. A mere apprehension of breach of law and order is not sufficient to meet the standards of adversely affecting maintenance of public order. Though nature of allegation, in second crime, against the detenu is serious, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention, merely because a person is implicated in criminal proceeding. The power of preventive detention is exceptional. The case in hand is a clear example of non-application of mind to the material circumstances having been bearing on subjective satisfaction of the detaining authority. We are clearly of the opinion that there is no material on record of the detaining authority, which could justify the order of detention of the detenu under section 3 of the MPD Act.

For the reasons above, we quash and set quash and set aside the impugned order dated 08.06.2023 passed by the respondent no.2- District Magistrate, Yavatmal, so also order dated 17. 07.2023 passed by the respondent no.1 and direct the detenu to be set at liberty forthwith, unless his detention is required for some other case. The petition is disposed of accordingly. The Rule is made absolute.