BHUPENDRAversusSTATE OF MAHARASHTRA & ANR.

                              [2008] 8 S.C.R. 709


                                BHUPENDRA                                A
                                      II.
                    STATE OF MAHARASHTRA & ANR.
                     (Criminal Appeal No.890 Of 2008)
                                MAY 14, 2008
                                                                         B
            (DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)

                Maharashtra Prevention of Dangerous Activities of Slum-
         lords, Bootleggers, Drugs Offenders and Dangerous Persons
         Act, 1981 - ss. 3(2) and 8(2) - Detention Oider under the Act c
         - Challenge to, on the ground of absence of link between ac-
       · tivities of detenu and the date of detention order - Held: Pro-
         vision empowering detention relates to habitual activities of
 .       the proposed detenu - Therefore, there has to be instance
         which may not be of immediate proximity but may indicate
                                                                          D
         that pattern - On facts, detention order shows that detenu was
         hired on payment by anti-social elements for comrriission of
         violent crimes - Occurrence not of remote past to warrant con-
         clusion of absence of live link - Thus, detention order correct.
             Preventive detention:                                       E
             Law of preventive detention - Discussed.

 ...          Detention order-Acts prejudicial to maintenance of pub-
        lie order - Areas of 'law and order and public order' - Distinc-
        tion between.                                                    F
              Words and Phrases: 'Law and Order', 'public order' and
        'security of state' - Meaning of.
            The detention order was passed against the appel-
:>-    lant u/s. 3(2) of the Maharashtra Prevention of Dangerous G
       Activities of Slumlords, Bootleggers, Drug Offenders and
       Dangerous Persons Act, 1981. He was detained under the
       Act. The grounds of detention were served on 23.4.07.
       Appellant filed Habeas Corpus petition to quash and set
                                     709                                 H
   710      SUPREME COURT REPORTS               [2008] 8 S.C.R.
                                                                  ;!...


A aside the detention order on the g1round that the deten-
  tion order indicated cases relating to law and order situa-
  tion and had nothing to do with the maintenance of public
  order and were old. High Court found that several offences
  were registered from 2005 till few days before the deten-
B tion order and there was live link between the activities of      •
  detention and date of passing of detention order. High
  Court dismissed the petition. Hence! the present appeal.
        Appellant contended that there was no live link be-
  tween the activities of the detenu and the date of passing
c of the impugned order of detention; that reference was
  made to some of the incidents which allegedly took place
  in 2005 and in any event when preventive action in terms
  of s.107 ands. 110 Cr.P.C. had been taken, there was no
                                                                    ..,.
  need for passing the order of detention; that the alleged
D acts at·the most related to law and order situation and
  having nothing to do with public order; that the statement
  of in camera witnesses should not have been relied upon
  by the detaining authority without forming an opinion as
  to whether they represented the truth.
E       Respondl[!nt-State and its functionaries contended
   that the detention order was correct.
         Dismissing the appeal, the Court                             +
         HELD: 1.1. The order of detention shows that the ap-
F pellant is often hired on payment by anti-social elements
  for commission of violent crimes. The detenu and his as-
  sociates always possessed deadly weapons and the in-
  stances highlighted related to 1.5.2005, 1.6.2005 and
  24.2.2006 and a dispute between a particular community
G and the builders over the possession of land and the ac-
  tivities of the detenu, and lastly on 24.3.2007 it has been
  noted that serious riotous situatioi1 developed at a par-
  ticular high school ground where hundreds of members
  of a particular community had assembled. It resulted in
H intense fear and panic situation because of the activities
                   BHUPENDRA v. STATE OF MAHARASHTRA                 711
                                  &ANR.

,>.:,
          of detenu. It was also pointed out in the order of deten- A
          tion that various preventive action taken ulss 107 and 110
          Cr.P.C. yielded no positive results and the detenu contin-
          ued his violent and criminal activities. Reference was also
          made to the witnesses who were examined in camera. So
          far as the truthfulness of these witnesses is concerned B
          reference was made to s. 8(2) of the Act which permits
          withholding the statement of certain witnesses in public
,.        interest. [Paras 6) [714F,G, 715-A,B]
               1.2. With regard to the question of live link it is to be
          noted that the provision empowering detention relates to C
          habitual activities of the proposed detenu. Therefore, there
          has to be instance which may not be of immediate proxim-
          ity but may indicate that pattern. In the instance case, the
          incidence cannot be said to be of remote past to warrant
          conclusion of the absence of live link. [Para 14) [718-B,C] D
                  Kanu Biswas v. State of West Bengal AIR 1972 SC 1656;
             Or. Ram Manohar Lohia v. State of Bihar and Ors. 1966(1)
             SCR 70; Kishori Mohan Bera v. The State of West Bengal
             1972(3) SCC 845; Pushkar Mukherjee v. State of West Ben- E
             gal 1969(2) SCR 635; Arun Ghosh v. State of West Bengal
             1970(3) SCR 288; Nagendra Nath Monda/ v. State of West
             Bengal 1972 (1) SCC 498; Babu/ Mitra alias Ani/ Mitra v. State
             of West Bengal and Ors 1973 (1) SCC 393, Milan Banik v.
             State of West Bengal 1974 (4) SCC 504; Kuso Sah v. The
        -... State of Bihar and Ors.197 4(1) SCC 185; Harpreet Kaur v. F
             State of Maharashtra 1992(2) SCC 177; TK. Gopa/ v. State of
             Kamataka 2000(6) SCC 168; State of Maharashtra v. Mohd.
             Yakub 1980(2) SCR 1158 and Commissioner of Police v.
             C.Anita 2004(7) SCC 467- relied on.
                                                                            G
                  CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
             No. 890 of 2008
                From the final Judgment and Order dated 14.9.2007 of
          the High Court of Judicature at Bombay, Bench at Aurangabad
          in Criminal W.P. No. 372 of 2007                                 H
    712       ~UPREME COURT REPORTS                   [2008] 8 S.C.R.


A       Anantbhushan Kanade, R.K. Gupta and Aribam i-
    Guneshwar Sharma for the Appellant.
        Shekhar Nephade, Ravindra Keshavrao Adsure for the
    Respondents.
B         The Judgment of the Court was delivered by
          DR. ARIJIT PASAYAT, J.1. Leave granted.
          2. Challenge in this appeal is to the judgment of the Divi- · ~
    sion Bench of the Bombay High Court dismissing the Habeas
c   corpus Petition filed under Article 226 of the Constitution of In-
    dia, 1950 (in short the 'Constitution') by one Bhupendra (here-
    inafter referred to as tr•e 'detenu')
         3. Prayer in the writ petition was to quash and set aside
  the decision and order passed by the District Magistrate,
D Ahmednagar dated 23.4.2007 and the decision and order
  passed by the Under Secretary to the Government of 1'
  Maharashtra, Home Department (Special) by order dated
  12.6.2007. The order of detention was passed by the respon-
  dent No. 2 in purported exercise of powers conferred under
E Section 3(2) of the Maharashtra Prevention of Dangerous Ac-
  tivities of Slumlords, Bootleggers, Drug Offenders and Dan-
  gerous Persons Act, 1981(in short the 'Act'). The detaining au-
  thority detained detenu under the Act. Grounds of detention were
  served on 23.4.2007. Several acts of the detenu were high-
F lighted which according to the detaining authority warranted
  detention. .                                                     +-
        The appellant primarily took the stand that the order of
  detention indicated cases relating to law and order situation
  and had nothing to do with maintenance of public order and
G were stale to be considered relevant for the purpose of deten-
  tion. It was submitted that there was no material to show that
  the alleged acts of the detenu disturbed the even tempo of life. ~
  The High Court did not find any substance and noted that the
  several offences were registered from 2005 till a few days be-
H fore the order of detention. Preventive action taken against the
                    BHUPENDRA v. STATE OF MAHARASHTRA                  713
                        & ANR. [DR. ARIJIT PASAYAT, J.]

           detenu proved to be ineffective, he was called upon to execute A
           bonds on various dates, but even after executing bonds for good
           behavior for a period of three years, the detenu breached the
           conditions of bond and the show cause notice was issued. In
           Camera statement of witnesses reference was made to an in-
           cident of 24.3.2001 and taking into account the activities of the B
           detenu in the past there was a live link between the activities of
           tbe detenu and the date of passing of the impugned order of
           detention. This observation came to be made because of the
           stand of the detenu that there was no live link. Ultimately the
           habeas corpus petition was dismissed.                              c
-\               In support of the appeal learned counsel for the appellant
           submitted that there was no live link. Reference was made to
           some of the incidents which to allegedly took in 2005 and in any
           event when preventive action in terms of Section 107 of the Code
           of Criminal Procedure, 1973 (in short the 'Cr.P.C.') and Section D
     ...   110 Cr.P.C. have been taken, there was no need for passing
           the order of detention. It was also pointed out that the alleged
           acts at the most related to law and order situation and having
           nothing to do with public order. It was further submitted that the
           statement of in camera witnesses should not have been relied E
.J
           upon by the detaining authority without forming an opinion as to
           whether that they represented the truth.
                 5. Learned counsel for the respondent-State and its func-
           tionaries on the other hand supported the order of detention.
                                                                              F
                  6. The order of detention shows that the appellant is often
           hired on payment by anti-social elements for commission of vio-
           lent crimes. The detenu and his associates always possessed
           deadly weapons and the instances highlighted related to
           1"5.2005, 1.6.2005 and 24.2.2006 and a dispute between a
                                                                              G
           particular community and the builders over the were stale to be
     •     considered relevant for the purpose of detention. It was submit- .
           ted that there was no material to show that the alleged acts of
           the detenu disturbed the even tempo of life. The High Court did
           not find any substance ;:md noted that the several offences were
                                                                              H
          714       SUPREME COURT REPORTS                  (2008] 8 S.C.R.


      A registered from 2005 till a few days before the order of deten-       ~

        tion. Preventive action taken against the detenu proved to be
        ineffective, he was called upon to execute boinds on various
        dates, but even after executing bonds for good behaviour for a
        period of three years, the detenu breached the conditions of
      B bond and the show cause notice was issued. In Camera state-
        ment of witnesses reference was made to an incident of                    •.-
        24.3.2001 and taking into accountthe activities of the detenu in
        the past there was a live link between the activities of the detenu
        and the date of passing of the impugned order of detention.
      c This  observation came to be made because of tile stand of the            '···
        detenu that there was no live link. Ultimately the habeas corpus
        petition was dismissed.
              In support of the appeal learned counsel for the appellant          ..
        submitted that there was no live link~ Reference was made to
      D some of the incidents which to allegedly took in 2005 and in any
        event when preventive action in terms of Section 107 of the Code      •
        of Criminal Procedure, 1973 (in short the 'Cr. P.C.') and Sec-
        tion 110 Cr. P.C. have been taken, there was no need for pass-
        ing the order of detention. It was also pointed out that the al-
      E leged acts at the most related to law and order situation .and             c·
        having nothing to do with public order. ·It was further sumbitted
        that the statement of in camera witnesses should not have been
        relied upon by the detaining authoritywithout forming an opin-
        ion as to whether that they represented the truth.
      F         5. Learned counsel for the respondent-State and its func-
,..
          tionaries on the other hand supported the order of detention.
              6. The order of detention shows that the appellant is often
        hired on payment by anti-social elements for commission of vio-
        lent crimes. The detenu and his associates always possessed
      G
        deadly weapons and the instances highlighted related to
        1.5.2005, 1.6.2005 and 24.2.2006 and a dispute between a
        particular community and the builders ove; the possession of
        land and the activities of the detenu, and lastly on 24.3.2007 it
        has been noted that serious riotous situation developed at a
      H
                BHUPENDRA v. STATE OF MAHARASHTRA                    715
                    & ANR. [DR. ARIJIT PASAYAT, J.]
~
      particular high school ground where hundreds of members of a A
      particular community and assembled. It resulted in intense fear
      and panic situation because of the activities of detenu. It was
      also pointed out in the order of detention that various preven-
      tive action taken under Sections 107 and 110 Cr. P.C. yielded
      no positive results and the detenu continued his violent and crimi- B
      nal activities. Reference was also made to the witnesses who
      were examined in camera. So far as the truthfulness of these
      witnesses are concerned reference was made to Section 8(2)
      of the Act which permits withholding the statement of certain
      witnesses in public interest.                                       c
              7. 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 al-
        ways affects order. 'Public order' has a narrower ambit, and
        public order could be affected by only such contravention which D
        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 E
        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 spec-
•       trum of public, it could raise problem of law and order only. It is F
        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 or-
        der'. The question to ask is: "Does it lead to disturbance of the
        current life of the community so as to amount to a disturbance
                                                                             G
        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.
           8. "Public order" is what the French call 'ordre publique' ·
      and is something more than ordinary maintenance of law and H
     716       SUPREME; COURT REPORTS                   [2008] 8 S.C.R.


A order. The test to be adopted in determining whether an act
  affects law and order or public order, is: Does it lead to distur-
  bance of the current life of the community so as to amount to
  disturbance of the public order or does it affect merely an indi-
  vidual leaving the tranquility of the society undisturbed? (See
8 Kanu Biswas v. State of West Bengal (AIR 1972 SC 1656).
         9. "Public order" is synonymous with public safety and tran-
  quility: "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".
C 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 dis-
  order. They can be dealt with under the powers to maintain law
  and order but cannot be detained on the ground that they were
D disturbing public order. Disorder is no doubt prevented by the
  maintenance of !aw and order also but disorder}s a broad spec-
  trum, which includes at one end small disturbances and at the
  other the most serious and cataclysmic happ~nings. (See Dr.
  Ram Manohar Lohia v. State of Bihar and Ors. (1966 (1) SCR
E 709)
         10. 'Public Order', 'law and order' and the 'security of the
  State' fictionally draw three concentric circles, the largest rep-
   resenting law and order, the next representing public order and
  the smallest representing security of the State. Every infraction
F of law must necessarily affect order, but an act affecting law
  and order may not necessarily also affect the public order. Like-
  wise, an act may affect public order, but not necessarily the se-
  curity of the State. The true test is not the kind, but the potential-
  ity of the act in question. One act may affect only individuals
G while the other, though of a similar kind, may have such an im-
  pact that it would disturb the even tempo of the life of the com-
  munity. 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
H impact that it would affect both public order and the security of
          BHUPENDRA v. STATE OF MAHARASHTRA                    717
              & ANR. [DR. ARIJIT PASAYAT, J.]

the State. [See Kishori Mohan Bera v. The State of West Ben- A
gal (1972 (3) SCC 845); Pushkar Mukherjee v. State of West
Bengal (1969 (2) SCR 635); Arun Ghosh v. State of West Ben-
gal (1970 (3) SCR 288); Nagendra Nath Monda/ v. State of
West Bengal (1972 (1) SCC 498).
      11. The distinction between 'law and order' and 'public 8
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 determinantof its C
own gravity. In its quality it may not differ but in its potentiality it
may be very different". (See Babu/ 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).
      12. The true distinction between the areas of law and or- D
der and public order lies not merely in the nature or quality of
the act, b"ut 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 E
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.                                                        F
      13. 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 G
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 rep-
resenting public order and the smallest circle represents the
security of State. "Law and order" comprehends disorders of
                                                                      H
     718 ,      SUPREME COURT REPORTS                    [2008] 8 S.C.R.


  A less gravity tha.n those affecting "public order" just as "public
     order" comprehends disorders of less gravity than those affect-
     ing "security of State". [See Kuso Sah v. Thei State of Bihar
     and Ors. (1974 (1) SCC 185, Harpreet Kaur v. State of
    .Maharashtra (1992 (2) sec 177' T. K. Gopal V. State of
 .B Karnataka (2000 (6) SCC 168, State ofMaharashtra v. Mohd.
     Yakub (1980 (2) SCR 1158)] and Commissioner of Police v.
    C. Anita (2004(7) SCC 467) .
          . 14. Coming to the question of live link it is to be noted that
     the.provision empowering detention relates to habitual activi-
.c   ties of the prop()sed detenu. Therefore there has to be instanc;e
     which may not be of immediate proximity but may indicate that
     pattern., In the. instance case the incidence cannot be said to
     be of remote past to warrant conclusion of the absence of live
     link..
 D
            f5. Further Section 8(2) of the Act permits withholdings of
     identity of the witr:iesses. We therefore find no substance in this
     appeal, which is accordingly dismissed.
     N.J.                                           Appeal dismissed.