Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 speaking F for the majority, Hidayatullah J. pointed out the distinction in the following words: "One has to imagine three concentric circles. Law and order represents the largest circle within ·which is the next circle representing public order and the smallest circle represents secu- rity of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State."
8. In ArWI Ghosh v. State of West Bengal. [1970] lSCC 98 again H Hidayatullah J. speaking for die Court, pointed out that what in a given r situation may be a matter covered by law and order, on account of its impact on the society may really tum out to be one of 'public order'. It was observed: "Talce the case of assault on girls. A guest at a hotel may kiss or malce advances to half a doren chambermaids. He may annoy them and also the mangement but he does not cause disturbance of public order. He may even have a fracas with the friends of one B of the girls but even then it would be a case of breach of law and order only. Talce another case of a man who moleslS women in lonely places. As a result of his activities girls going to colleges and schools are in constant danger and fear. Women going for their ordinary business are afraid of being waylaid and assaulted. The activity of this man in iis essential quality is not different c from the act of the other man but in iis potentiality and in iis effect upon the public tranquillity there is a vast difference. The act of the man who molesis the girls in lonely places causes a distur- bance in the even tempo of living which is the first requirement of public order. He disturbs the society and the community. His act malces all the women apprehensive of their honour and he can D be said to be causing disturbance of public order and not merely committing individu;il actions which may be taken note of by the µ criminal prosecution agencies." [p. 100]
9. A Constitution Bench in Madhu Limaye v. Ved Murti, [1970] 3 SCC 738 again dealt with the question and it was observed: "In our judgment, the expression 'in the interest of public order' in the Constitution is capable of taking within iiself not only those acts which disturb the security of the State or act within ordre publique as described but also certain aclS which disturb public tranquillity or are breaches of the peace. It is not necessary to give F the expression a narrow meaning because, as has been observed, 'r the expression 'in the interest of public order' is very wide." [p: 756]
10. In Kanu Biswas v. State of West Bengal, [1972] 3 SCC [p. 756] 831, this Court opined: "The question whether 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, … is a question of degree and the extent of the reach of the act upon the society. Public order is what the French c [1992] l S.C.R. call "ordre publique" and is something more than ordinary main- tenance 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 :nerely an individual leaving the tranquillity of society undisturbed?" [p. 834]
11. In Ashok Kumar v. Delhi Administration, [1982] 2 SCC 403 this Court re-examined the question and observed: '"The true distinction between the areas of 'public order' and 'law and order' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of 'law and order' and 'public order' is a fine one but this does not mean that there can be no overlapping. 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 touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudi- cial to the maintenance of public order." [pp. 409-10]
12. In SubhashBhandari v.District Magistrate, Lucknow, [1987] 4 SCC 685, a Division Bench of this Court has held: "A solitary act of omission or commission can be taken into con- sideration for being subjectively satisfied, by the delaining au- thority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquillity by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed. Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." [pp. 686-87]
13. It is not necessary to multiply the authorities on this point.
14. From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the reach of the objectionable activity upon the society which is vital for considering the question whether a man has commit- ted only a breach of 'law and order' or has acted in a manner likely to cause disturbance to 'public order'. 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 'public order'. Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to 'public order' or belong to the category of being prejudicial only to 'law and order'. An order of detention under the Act would be valid if the activities of c a detenu affect 'public order' but would not be so where the same affect only the maintenance of 'law and order'. Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.
15. Dr. Chitale did not dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or community, those activities would be prejudicial to maintenance of 'public order', he however, relied upon certain judgments to urge that "bootlegging" activity of the detenu in the instant case, could not affect public tranquillity and did not have any potential of affecting public order to justify his detention. Reliance was placed on Om Prakash v. Commissioner of Police & Ors., (1989] Supp. 2 SCC 576; Rashidmiya v. Police Commissioner, Ahmedabad & Anr .. (1989] 3 SCC 321 and Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr .. [1989] Supp.I sec 322 and it was urged that in these cases an activity of "bootlegging" was not held to fall within the mischief of being prejudicial to 'public order'.
16. Indeed, in Piyush Kamila/ Mehta, Om Prakash and Rashidmiya cases (supra), the Court found that the activities of the detenu, a bootlegger in those cases, as detailed in the grounds of detention, were of a general and vague nature and those activities did not adversely affect the maintenanw of 'public order' under Section 3(4) of the Gujarat Prevention of Anti-Social Activities' Act, 1985. The Bench in Rashidmiya and Om Parkash' s cases G (supra) relied upon the judgment in Piyush Kantilal Mehta' s case and on the facts of those cases quashed the order of detention. In Piyush Kantilal Mehta's case (supra), the allegations, in the ground of detention, were that the detenb'\"as a bootlegger, who was indulging in the SUPREME COURT REJ'()RTS [1992] I S.C.R. sale of foreign liquor and that he and his associates were also using force and violence and beating innocent citizens creating a sense of tenor. The detenu was caught possessing English liquor with foreign markings as well as foreign liquor. The Coun found that the detenu was only a bootlegger and he could not be preventively detained under the provisions of the Gujarat Prevention of Anti-Social Activities' Act, 1985 unless as laid down in sul>-Section (4) of Section 3 of that Act, his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely, the maintenance of 'public order' and on the peculiar faclS of the case , it was found that the alleged activities of the detenu did not affect 'public order' but created only a law and order problem. Dr. Chilale then placed reliance on Stale of U.P. v. Hari Shankar Tewari, [1987] 2 SCC 490; Ahmedhussain ShaiJ:hhussain v. Commissioner of Police, Ahmedabad and Anr. [1989] 4 SCC 751; T. Devaki v. Goverrunent of Tamil Nadu & Ors., [1990] 2 SCC 456; Ashok Kumar v. Delhi Administra- tion and Ors .• [1982] 2 SCC 403; but none of these judgments lay down tests different than the ones which we have culled out from the judgments of this D coun referred to earlier. Those cases were decided on their peculiar facts. The courts were very much alive to the conceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were oot prejudicial to 'public order', the orders of detention were quashed.
17. Crime is a revolt against the whole society and an auack on the civilization of the day. Order is the basic need of any organised civilized society and any attempt to disturb that order affeclS the society and the community. The distinction between breach of 'law and order' and distur- bance of 'public order' is one of degree and the extent of reach of the activity in question upon the society. In their essential quality, the activities which ajfeclS 'law and order' and those which distwb 'public order' may not be different but in their potentiality and effect upon even tempo of the society and public tranquillity there is a va-;t difference. In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a pcison to find out whether his activities are prejudicial to main- G tenance of 'public order' or only 'law and order'.
18. There is oo gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt Where the prosecution is unable to lead evidence to prove iis case, the case fails, though H that failure does not imply that no crime had been committed. Where the prosecution case fails, because witnesses are reluctant on account of fear of A retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged. In the ultimate analysis, it is the society which suffers. Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it. The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of 'public order' and are not merely prejudicial to the maintenance of 'law and order'.
19. The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders Act, 1981 was enacted to provide for preventive detention of slumlords, bootleggers and drug-offenders for pre- venting their dangerous activities prejudicial to the maintenance of 'public order'. Section 2(a) defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" and reads as follows: "(a) "acting in any manner prejudicial to the maintenance of public order" means (i) in the case of a slumlord, when he is engaged, or is making preparations for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order; c (ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect ad- versely, the maintenance of public order; (iii) in the case of drug-offender, when he is engaged or is making G preparations for engaging, in any of his activities as drug- offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; Explanation: For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed likely to be affected adversely, inier alia, if any of the activities of °'r'" any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alann of a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;"
20. The explanation to Section 2(a) (supra) brings into effect a legal fiction as to the adverse affect on 'public order'. It provides that if any of the activities of a person referred to in clauses [ (i)-(iii) J of Section 2(a) rurectly or indirectly causes or is calculated to cause any hann, danger or alann or a feeling of insecurity among the general public or any Section thereof or a grave or a wide-spread danger to life or public health, then public order shall c be deemed to have been adversely affected Thus, it is the fall out of the activity of the "bootlegger" which determines whether 'public order' has been affected within the meaning of this deeming provision or not. This legislative intent has to be kept in view while dealing with detentions under the Act.
21. Let us now consider the facts of the instant case. The substance of the grounds on which detention has been ordered is that the detenu is a bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way. He continued to E drive in a reckless speed and dashed against a pedestrian causing injuries to him, where again he had exhoned that anyone who would come in his way would meet his death. Four wimesses-A,B,C,D,-who agreed to give state- men ts to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threat- i ened to do away with anyone who would depose against him. The evidence F of these wimesses shows that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping anns with him while transporting liquor.
The activities of the detenue, therefore, were not merely "bootlegging" as was the position in Om Prakash, Rashidmiya and Piyush Kantilal Me/ua' s cases (supra) but went further to adversely affect G the even tempo of the society by creating a feeling of insecurity among those who were likely to <kpose against him as also the law enforcement agencies. The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer. The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation of Section 2(a) of the Act. and it therefore, follows as a logical consequence that the activities of the detenu were not merely prejudicial to the maintcnancc of 'law and order' but were prejudicial to the maintenance of "public order". The first argument raised by Dr. Chitale against the order of detention, therefore, fails.
22. Coming now to the second argument of Dr. Chitale to the effect that proviso to Section 3(2) of the Ac4 prohibited the Slate Government to make an order of detention in the first instance, exceeding three months, and since · the order of delCntion in the instant case had been made for a period exceeding three months, it was vitiated. Section 3 reads as follows: "Power to make orders detaining certain persons. (I) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person is detained. (2) If, having regard to the circumstances prevailing or likely to D prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Gov- ernment is satisfied that it is necessary so to do, it may, by order in writing, diree4 that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub-section (I), exercise the powers conferred by the said sub-section: Provided that the period specified in the order made by the Slate Government under this sub-section shall not, in the first instance, exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding. three months at any one time. (3) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the Slate Government." A plain reading of the Section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view IO preventing him from acting in a manner prejudicial to the maintenance of "public order'', it is necessary so to do, make an order of detention against the person concerned. Sub-section (2) of Section 3 deals with the delegation of powers by the Stale Government and provides that if the State Government B is satisfied, having regard IO the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrale or a Commissioner of Police, it is necessary IO empower District Magistrate or the Commissioner of Police, as the case may he to exercise the powers of the State Government to order detention of a person as provided by sub-Section (1), then the State Government may, by an order in writing direct that during such period as may C be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub-section I 1 ), exercise the powers of the State Government as conferred by sub-Section (1). The proviso to sub- Section (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub-section (2), delegating IO the District Magistrale or the Commissioner of Police the D powers under sub-Section (1) shall not in the first instance exceed three months. The proviso, therefore, has nothing to do with the period of detention of a detenu.
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act. It .is, therefore, futile to contend that the onler of detention in E the instant case was vitiated because it was for a period of more than three months. The second argument, therefore, also fails.
24. We are, in the facts and circumstances of the case, satisfied that the G Writ Petition No. 597 of 1991 and that order does not call for any interference. Division Bench of the Bombay High Court rightly dismissed the Criminal The Appeal fails and is dismissed.
25. Writ Petition No. 1247 of 1991 also fails and is hereby dismissed since the order of detention does not suffer from any infirmity. G.N. AppeaV Petition dismiued.