Supreme Court of India
Arjun S/O Ratan Gaikwad vs The State Of Maharashtra on 11 December, 2024
Author: B.R. Gavai
Bench: B.R. Gavai
2024 INSC 968 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
(Arising out of SLP (Crl.) No.12516 of 2024)
ARJUN S/O RATAN GAIKWAD …APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA
AND OTHERS …RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. Leave granted.
2. The appeal is taken up for hearing.
3. This appeal challenges the judgment and order dated
20th August 2024 passed by the Division Bench of the High
Court of Judicature at Bombay, Bench at Aurangabad in
Criminal Writ Petition No. 698 of 2024, thereby dismissing
the petition filed by the appellant herein.
4. Shorn of details, the facts leading to the present appeal
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
are as under:
Date: 2024.12.12
17:07:49 IST
Reason:
4.1 The District Magistrate, Parbhani passed an order
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under Section 3(2) of the The Maharashtra Prevention ofDangerous Activities of Slumlords, Bootleggers, Drug-
Offenders, Dangerous Persons, Video Pirates, Sand
Smugglers and Persons Engaged in Black-Marketing of
Essential Commodities Act, 1981 (hereinafter referred to as
‘MPDA Act’) and thereby detaining the appellant for a period
of twelve months, so as to prevent him from indulging in the
activities of bootlegging thereby preventing the maintenance
of peace.
4.2 The detaining authority had basically relied on the six
cases registered against the appellant by the State Excise
Department. The grounds of detention were communicated
to the appellant on 5th March 2024. The detention order was
approved on 14th March 2024 by the Home Department and
the confirmation order was passed on 8th May 2024 by the
Government of Maharashtra. Several grounds were raised in
the petition including the ground that there was no nexus
with the alleged activities of the appellant and the order of
the detention, inasmuch as there was a gap of about two and
a half months between the proposal for detention being
forwarded to the detaining authority and the detention order
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being passed. It is also submitted that the authority had
acted in a mechanical manner and without there being any
material, had passed the detention order. It was submitted
that in any case, the alleged activities do not constitute a
threat to the public order and they would fall amongst cases
which can be dealt with by ordinary law and order
machinery.
5. We have heard Shri Nachiketa Joshi, learned Senior
Counsel appearing for the appellant and Shri Siddharth
Dharmadhikari, learned Standing Counsel for the State of
Maharashtra.
6. Though, arguments have been advanced on various
issues and a number of authorities have been cited, we find
that the appeal deserves to be allowed on a short ground,
inasmuch as none of the activities which form the basis of
the detention order can be said to be affecting public order.
7. The basis on which the proposal for detention is passed
is the following six cases which are registered by the
Authority against the appellant:-
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Sr. Office with Crime No., Charge sheet Remark
No. whom offence Date and and Date
registered Section
1 Sub-Inspector, 20/2023 dt. SCC Subjudice
State Excise, 29/1/2023 No.211/2023
Pathhari Maharashtra dt. 25.3.2023
Prohibition Act
Sec. 65(e)
2 Inspector, 61/2023 dt. SCC Subjudice
State Excise, 18/3/2023 No.335/2023
Parbhani Maharashtra dt. 23.8.2023
Prohibition Act
Sec. 65(e)
3 Inspector, 89/2023 dt. SCC Subjudice
State Excise, 24/4/2023 No.338/2023
Parbhani Maharashtra dt. 23.8.2023
Prohibition Act
Sec. 65(e)
4 Inspector, 126/2023 dt. SCC Subjudice
State Excise, 17/05/2023 No.358/2023
Parbhani Maharashtra dt.
Prohibition Act 04.09.2023
Sec. 65(d)(e)
5 Inspector, 253/2023 dt. SCC Subjudice
State Excise, 09/09/2023 No.419/2023
Parbhani Maharashtra dt. 20.9.2023
Prohibition Act
Sec. 65(e)(f)
6 Inspector, 327/2023 dt. On
State Excise, 18/10/2023 investigation
Parbhani Maharashtra
Prohibition Act
Sec. 65(e)(f)
8. Apart from that the detaining authority has also relied
on the statements of two witnesses, who have not been
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named.
9. Insofar as all the six cases are concerned, they are
pertaining to the illicit manufacture of handmade liquor. It is
to be noted that these cases are registered during the period
between 29th January 2023 to 18th October 2023. It is to be
noted that in none of these cases the authorities found it
necessary to arrest the appellant herein.
10. Insofar as the reliance on the statement of the two
unnamed witnesses are concerned, the statements are
identical in toto. What is stated is that the appellant is
engaged in production of handcrafted liquor for the last few
years. It is stated that due to these activities there have been
various problems for the Government machinery. It is stated
that due to the fear and terror created by the appellant
nobody appears to raise complaint against him. It is further
stated that due to these activities of bootlegging the nearby
residents have left their houses and shifted elsewhere. The
first witness statement further states that on some day in the
last month at 07:00 P.M., when the witness was returning
from work towards his residence, the appellant met him near
the Gram Panchayat Office and quarreled with him and
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threatened by saying that if his liquor business was no more,
he will not spare him. It is further stated that he had not
filed a complaint with the police against the appellant herein
due to fear.
11. Insofar as another witness is concerned, almost similar
statement is recorded and the only difference is that the date
mentioned here is somewhere in the month of November,
2023 and the time is 20:30 P.M. Incidentally, both these
witnesses happened to meet the appellant at the Gram
Panchayat Office.
12. The distinction between a public order and law and
order has been succinctly discussed by Hidayatullah, J. (as
His Lordship then was) in the case of Ram Manohar Lohia
v. State of Bihar and Another1:
“54. … 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
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. Suppose that the two fighters were of rival
communities and one of them tried to raise
communal passions. The problem is still one of law
and order but it raises the apprehension of public
disorder. Other examples can be imagined. The1
(1966) 1 SCR 709 : 1965 INSC 175
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contravention of law always affects order but before
it can be said to affect public order, it must affect
the community or the public at large. A mere
disturbance of law and order leading to disorder is
thus not necessarily sufficient for action under the
Defence of India Act but disturbances which subvert
the public order are.…
55. It will thus appear that just as ‘public order’ in
the rulings of this Court (earlier cited) was said to
comprehend disorders of less gravity than those
affecting ‘security of State’, ‘law and order’ also
comprehends disorders of less gravity than those
affecting ‘public order’. 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 security 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.”
13. It could thus be seen that a Constitution Bench of this
Court in unequivocal terms held that every breach of peace
does not lead to public disorder. It has been held that when
a person can be dealt with in exercise of powers to maintain
the law and order, unless the acts of the proposed detainee
are the ones which have the tendency of disturbing the
public order a resort to preventive detention which is a harsh
measure would not be permissible.
14. Recently, a Bench of this Court has referred to various
judgments of this Court while following the law laid down by
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this Court in the case of Ram Manohar Lohia (supra), it will
be appropriate to reproduce the following paragraph from the
judgment of this Court in the case of Ameena Begum v.
State of Telangana and Others2.
“38. For an act to qualify as a disturbance to public
order, the specific activity must have an impact on
the broader community or the general public,
evoking feelings of fear, panic, or insecurity. Not
every case of a general disturbance to public
tranquillity affects the public order and the question
to be asked, as articulated by Hon’ble M.
Hidayatullah, C.J. in Arun Ghosh v. State of
W.B. [Arun Ghosh v. State of W.B., (1970) 1 SCC 98 :
1970 SCC (Cri) 67] , is this : (SCC p. 100, para 3)
“3. … Does it [the offending act] lead to
disturbance of the current of life of the
community so as to amount a
disturbance of the public order or does it
affect merely an individual leaving the
tranquillity of the society undisturbed?”
39. In Arun Ghosh case [Arun Ghosh v. State of
W.B., (1970) 1 SCC 98 : 1970 SCC (Cri) 67] , the
petitioning detenu was detained by an order of a
District Magistrate since he had been indulging in
teasing, harassing and molesting young girls and
assaults on individuals of a locality. While holding
that the conduct of the petitioning detenu could be
reprehensible, it was further held that it (read : the
offending act) “does not add up to the situation
where it may be said that the community at large
was being disturbed or in other words there was a
breach of public order or likelihood of a breach of
public order. (Arun Ghosh case [Arun Ghosh v. State
of W.B., (1970) 1 SCC 98 : 1970 SCC (Cri) 67] , SCC
p. 101, para 5)”2
(2023) 9 SCC 587
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40. In the process of quashing the impugned order,
the Hidayatullah, C.J. while referring to the decision
in Ram Manohar Lohia [Ram Manohar Lohia v. State
of Bihar, 1965 SCC OnLine SC 9 : (1966) 1 SCR
709] also ruled : (Arun Ghosh case [Arun
Ghosh v. State of W.B., (1970) 1 SCC 98 : 1970 SCC
(Cri) 67] , SCC pp. 99-100, para 3)
“3. … Public order was said to embrace
more of the community than law and
order. 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 tranquillity.
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. … It is always a question
of degree of the harm and its effect upon
the community. … This question has to
be faced in every case on facts. There is
no formula by which one case can be
distinguished from another.”
41. In Kuso Sah v. State of Bihar [Kuso Sah v. State
of Bihar, (1974) 1 SCC 185 : 1974 SCC (Cri) 84] ,
Hon’ble Y.V. Chandrachud, J. (as the Chief Justice
then was) speaking for the Bench held that : (SCC
pp. 186-87, paras 4 & 6)
“4. … The two concepts have well defined
contours, it being well-established that
stray and unorganised 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. …
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***
6. … The power to detain a person without
the safeguard of a court trial is too drastic
to permit a lenient construction and
therefore Courts must be astute to ensure
that the detaining authority does not
transgress the limitations subject to which
alone the power can be exercised.”
(emphasis supplied)
15. As to whether a case would amount to threat to the
public order or as to whether it would be such which can be
dealt with by the ordinary machinery in exercise of its powers
of maintaining law and order would depend upon the facts
and circumstances of each case. For example, if somebody
commits a brutal murder within the four corners of a house,
it will not be amounting to a threat to the public order. As
against this, if a person in a public space where a number of
people are present creates a ruckus by his behaviour and
continues with such activities, in a manner to create a terror
in the minds of the public at large, it would amount to a
threat to public order. Though, in a given case there may not
be even a physical attack.
16. In the present case, all the six cases are with regard to
selling of illicit liquor. Though six cases are registered, the
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Excise Authority did not find it necessary to arrest the
appellant even on a single occasion. It would have been a
different matter, had the appellant been arrested, thereafter
released on bail and then again the appellant continued with
his activities. However, that is not the case here.
17. Insofar as statements of the two unnamed witnesses are
concerned, the allegations are as vague as it could be. In any
case the statements which were stereotype even if taken on
its face value would show that the threat given to the said
witnesses is between the appellant and the said witnesses.
The statements also do not show that the said witnesses
were threatened by the appellant in the presence of the
villagers which would create a perception in the mind of the
villagers that the appellant herein is a threat to the public
order.
18. In that view of the matter, we do not find that the
subjective satisfaction of the detaining authority that the
activities of the appellant were prejudicial to the maintenance
of public order is substantiated.
19. The appeal deserves to be allowed on this short ground.
20. The impugned judgment and order passed by the High
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Court dated 20th August 2024 so also the order of detention
dated 5th March 2024 passed by the detaining authority and
the order of confirmation dated 8th May 2024 are quashed
and set aside and the appeal is, accordingly, allowed.
21. The appellant is directed to be released forthwith, if his
detention is not required in any other case.
22. Pending application(s), if any, shall stand disposed of.
…………………………J.
(B.R. GAVAI)
…………………………J.
(K. V. VISWANATHAN)
NEW DELHI;
DECEMBER 11, 2024.
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