Supreme Court of India
COLLECTOR & DIST. MAGISTRATE AND ORS.versusS. SULTAN
- Citation
- 2008 INSC 428
- Decided
- 31 March 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The detention order was valid as the detenu qualified as a "goonda" under Section 2(g) and the incidents were neither stale nor unrelated to public order.
Summary
The Supreme Court examined the validity of a preventive detention order issued under the Andhra Pradesh Prevention of Dangerous Activities Act, 1986 against several individuals described as "goondas". The High Court had quashed the order on the grounds that the cited incidents were stale, did not affect public order, and involved offences punishable under the IPC and the Explosive Substances Act, rendering the Act inapplicable. The Court held that all the incidents fell within the definition of "goonda" under Section 2(g) of the Act, were recent enough (most occurring in November 2005) and clearly prejudicial to public order. It clarified the distinction between "law and order", "public order" and "security of the State", emphasizing that the potentiality of an act to disturb community life determines its impact on public order. Consequently, the High Court's judgment was set aside and the appeals were allowed, though the original detention period had already expired, leaving it to the State Government to consider further detention. The decision reaffirmed the constitutional validity of preventive detention when the statutory criteria are satisfied.
Issues considered
- The applicability of the A.P. Prevention of Dangerous Activities Act, 1986 to the detenu based on the definition of "goonda".
- Whether the incidents cited in the detention order were stale and thus invalidated the order.
- Whether the acts alleged affected "public order" as required under the Act.
- The relevance of offences punishable under the IPC and the Explosive Substances Act to the validity of the detention.
Legislation cited
- Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986s. 2(a), s. 2(g), s. 3(1), s. 3(2)
- Constitution of Indias. Article 22, s. Article 226
- Explosive Substances Act, 1908s. 3, s. 5
- Indian Penal Code, 1860s. Chapters XVI, s. XVII, s. XXII
Subjects
preventive detentiongoondapublic orderlaw and ordersecurity of the StateArticle 22detention orderstale incidentsA.P. Prevention of Dangerous Activities Act
Judgment
[2008] 5 S.C.R. 764
COLLECTOR & DIST. MAGISTRATE AND ORS. ~
v.
S. SULTAN
(Criminal Appeal No. 567 of 2008)
MARCH 31, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
>-
Preventive Detention:
A.P Prevention of Dangerous Activities of Bootleggers,
c Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders
and Land Grabbers Act, 1986- ss.3(1), 3(2) rlw s.2(a) and (g)
- Order of detention - Indicating instances in respect of
offences covered by definition of the expression 'goonda' in
s.2(g) - Not based on stale incidents as alleged -Activities of
D detenu prejudicial to "public order''- Hence, High Court not
justified in quashing the detention order in exercise of its writ
jurisdiction - However, period of detention as fixed in the ..,,
detention order already over - State Government to consider
the need for detaining the detenu for the balance period
E covered by the original order of detention - Constitution of
India, 1950 - Arts. 22 & 226.
Words and Phrases - 'Law and order', 'public order' and
'security of the State' - Meaning of - Discussed.
F Writ petitions were filed before the High Court
challenging the order of detention passed under ss.3(1 ),
3(2) r/w s.2(a) and (g) of the A.P. Prevention of Dangerous ~
Activities of Bootleggers, Dacoits, Drug Offenders,
Goondas, Immoral Traffic Offenders and Land Grabbers
Act, 1986. It was contended that the order of detention
G
was illegal, arbitrary, unconstitutional and violative of
Article 22 of the Constitution; that the instances referred
to, did not affect the "public order" at all, and, in any event,
since some of the grounds related to offences punishable ;.. .
H 764
"" COLLECTOR & DIST. MAGISTRATE AND ORS. v. 765
S. SULTAN
~ under the Explosive Substances Act, 1908, detention A
under the Act was impermissible. High Court quashed the
order of detention. Hence the present appeals;
Allowing the appeals, the Court
HELD: 1. In all the instances given in the grounds of B
......4. detention, the indicated offences are punishable under
either Chapters XVI or XVII and/or XXll of the IPC. In
addition, in certain instances reference has been made
to offences punishable under the Explosive Act.
Therefore, it is not correct as observed by the High Court c
that some of the grounds related to offences punishable
under Sections 3 and 5 of the Explosive Act onl.y. It is really
not so. Even otherwise, all instances indicated are in
respect of offences covered by the definition of t'1e
expression 'goonda'. The test is whether the detenu is a
D
'goonda' in terms of Section 2(g) of the A.P. Prevention of
Dangerous Activities of Bootleggers, Dacoits, Drug
)(
Offenders, Goondas, Immoral Traffic Offenders and Land
Grabbers Act, 1986. Reference to other provisions does
not affect that conclusion. There may be cases where
offences may be punishable under different statutes. E
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. [Paras 8, 9] [770-C, D, E, F]
2. So far as the stand that incidents were stale, it is to. F
be noted that most of the incidents highlighted are of
November 2005. The order of detention was passed on
i" 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
G
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. [Para 10]
[770-F, G; 771-A]
H
,.
I
766 SUPREME COURT REPORTS [2008] 5 S. C.R.
A 3.1. 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
B violence and danger was caused to the lives of the
villagers. In all these instances deadly weapons were used
causing injuries to various persons. [Para 11] [771-A, B] >'
3.2. While the expression 'law and order' is wider in ·
scope inasmuch as contravention of law always affects
c 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
D 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
E 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'
F from that concerning 'law and order'. (Para 12) [771-C, D,
E, F]
-t
3.3. '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
G 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.
)..- .
H The true test is not the kind, but the potentiality of the act
COLLECTOR & DIST. MAGISTRATE AND ORS. v. 767
S. SULTAN
in question. One act may affect only individuals while the A
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 s
public order may have an impact that it would affect both
\, public order and the security of the State. [Para ·15]
[772-E, F, G, H]
3.4. The true distinction between the areas of "law
and order" and "public order" lies not merely in the nature C
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 D
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 E
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 F
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 G
affecting "public order" just as "public order"
comprehends disorders of less gravity than those
affecting "security of State". In the instant case, the
incidents related to public order situations. [Paras 1'1,
18] [773-C, D, E, F, G; 774-A, B]
H
768 SUPREME COURT REPORTS [2008] 5 S.C. R.
A Kanu Biswas v. State of West Bengal AIR (1972) SC 1656;
Dr. Ram Manohar Lohia v. State of Bihar and Ors. (1966) 1
SCR 709; 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
B (1970) 3 SCR 288; Nagendra Nath Monda/ v. State of West
Bengal (1972) 1 SCC 498; Babu/ Mitra alias Anil Mitra v. State
of West Bengal and Ors. (1973) 1 SCC 393; Milan Banik v. I
>-.
State of West Bengal (1974) 4 SCC 504; Kuso Sah v. The
State of Bihar and Ors. (1974) 1 SCC 185; Harpreet Kaur v.
c State of Maharashtra (1992) 2 SCC 177; TK. Gopal v. State
of Kamataka (2000) 6 SCC 168 and State of Maharashtra v.
Mohd. Yakub (1980) 2 SCR 1158 - relied on.
4. Looked at from any angle, the impugned judgment
of the High Court cannot be sustained and is set aside.
D 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. [Para 19] [774-B, C]
E,
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 567 of 2008.
From the final Judgment and Order dated 13.09.2006 of
the High Court of Judicature of Andhra Pradesh at Hyderabad
F in Writ Petition No. 158290 of 2006.
WITH
Criminal Appeal Nos 568-571 of 2008
D. Bharathi Reddy for the Appellants
G
T. Anamika for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted in el:!ch .......
case.
H
COLLECTOR & DIST. MAGISTRATE AND ORS. v. 769
S. SULTAN [DR. ARIJIT PASAYAT, J.]
2. Challenge in these appeals is to the order passed in A
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, B
~
~ 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) c
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 D
)(
acts which are punishable under the Indian Penal Code, 1860
(in short 'I PC'), 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 E
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 Court
accepted the stand and quashed the order of detention. F
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
G
under some of the provisions of the Explosive Act. Therefore,
the impugned judgment of the High Court is indefensible.
~ ---4.. 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 H
770 SUPREME COURT REPORTS [2008] 5 S. C.R.
A 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:
B "Goondas means a person, who either by himself or as a
I
member of or leader of a gang, habitually commits, or j,.
attempts to commit or abets the commission of offences
punishable under Chapter XVI or Chapter XVII or Chapter
XXll of the Indian Penal Code."
c 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 XXll. In addition, in certain instances
reference has been made to offences punishable under the
Explosive Act.
D
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
E
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
F 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
G
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
H
COLLECTOR & DIST. MAGISTRATE AND ORS. v. 771
S. SULTAN [DR. ARIJIT PASAYAT, J.]
~·
based on stale incidents. A
11. So far as the question as to whether the public or.der
was involved, the grounds of detention elaborately described
the acts which created dangerous and terrorized situations in
the village and frequenUy disturbed public peace and public order
because of the acts of violence and danger was caused to the B
' ,. 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 expression c
'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
D
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 E
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 F
..,.. concerning 'law and order'. The question to ask is: "Does· it
lead to disturbance of the current life ofthe 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 G
its facts.
13. "Public order" is what the French call 'ordre publique',
+ -.J.
and is something more than ordinary maintenance of law and
order. The test to be adopted in determining whether an act
H
772 SUPREME COURT REPORTS (2008] 5 S.C.R.
A 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 (Al R 1972 SC 1656).
B 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
c 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
D the maintenance of law and order also but disorder is a broad
spectrum, which includes at one end small disturbances and at
)I
the other the most serious and cataclysmic happenings. (See
Dr. Ram Manohar Lohia v. State of Bihar and Ors. (1966 (1)
SCR 709)
E 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
F 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
G 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
H and the security of the State. [See Kishnri Mohan Bera v. The
COLLECTOR & DIST. MAGISTRATE AND ORS. v. 773
S. SULTAN [DR. ARIJIT PASAYAT, J.]
State of West Bengal (1972 (3) SCC 845); Pushkar Mukherjee A
v State of West Bengal (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).
16. The distinction betWeen 'law and order' and 'public
order' has been pointed out succinctly in Arun Ghosh's case B
'.,., (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
c
own gravity. In its quality it may not differ but in its potentiality it
may be very different". (See 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).
17. The true distinction between the areas of law and order
D
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 E
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
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
G
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
• -,i security of State. "Law and order" comprehends disorders of
less gravity than those affecting "public order" just as "public
H
774 SUPREME COURT REPORTS (2008] 5 S.C.R.
A . 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 Kaurv. State of Maharashtra ....
(1992 (2) SCC 177, TK. Gopa/ v. State of Karnataka (2000 (6)
SCC 168, State of Maharashtra v Mohd. Yakub (1980 (2) SCR
B 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 ar:d is set aside. However,
the period of detention as fixed in the detention order is already
C 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.
D
B.B.B. Appeals allowed.
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