'Preventive Detention Not A Substitute To Deal With Ordinary Law And Order Problems' : Bombay High Court Quashes Detention Order

The bench said that the difference between the two does not lie in the mere nature or quality of the act but in the degree, potentiality and extent of its reach or effect on society.

A division bench of Justices SS Shinde and NJ Jamadar made the pertinent distinction between "law and order" and "public order" while setting aside the Pune Police Commissioner's preventive detention order under section 3(2) of the Maharashtra Prevention of Dangerous Activities Act against a 28-year-old social worker from Pune.

The man's detention was confirmed by the State Government on December 10 2020, directing his detention to be continued for one year from the date of detention.

The bench relied on the Supreme Court's judgements in the case of Harpreet Kaur (Mrs.) Harvinder Singh Bedi v. State Of Maharashtra And Another to say, provisions contained in the enactments which authorize preventive detention cannot be resorted to as an easy substitute to deal with an ordinary law and order problem.

"A proper test to distinguish between "law and order" and "public order" is whether the complained acts led to disturbance of the ordinary tempo of life of the community so as to amount a disturbance of the public order or it merely affected an individual leaving the tranquility of society undisturbed."

"It is, therefore, said that the essential distinction between the concepts of "public order" and "law and order" is not in the nature or quality of the act but in the degree, potentiality and extent of its reach upon society. The given act by itself may not be determinant of its own gravity. It is the propensity and potentiality of the act of disturbing the even tempo of life of the community that renders it as prejudicial to the maintenance of public order," the bench said.

Fact of the Case

On 20 November 2020 Commissioner of Police, Pune City, under section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons, Video Pirates, Sand Smugglers and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act, 1981), passed an order of preventive detention against petitioner Shubham Rajendra Hingade.

The commissioner cited two case for causing grievous hurt and criminal intimidation under the IPC, and relevant sections of the Arms Act to hold that the petitioner has become a perpetual danger to the lives of people residing within the local limits of Chaturshringi Police Station, Pune City.

Moreover, nobody was coming forward to lodge a complaint and depose against the petitioner due to fear of retaliation and in-camera statements of two witnesses were recorded.

The detention was then approved by the State Government after an opinion from the advisory board.

COURT OBSERVATIONS

Firstly, the genesis of the two offences is in the previous enmity between the first informant and other accused. Secondly, in neither of the offences, the role of having assaulted the respective first informant, by means of a deadly weapon, is attributed to the petitioner. Thirdly, the endeavour made by the Detaining Authority to paint the picture of the petitioner as the principal accused, nay the leader of the gang of assailants, is belied by the allegations in the first information reports and statements of witnesses, the bench held.

"The justification for the detention sought to be offered, in the grounds of detention, thus, suffers from a grave misconstruction of the record. In an effort to shore up grounds in support of detention order, the Detaining Authority has committed a patent error of levelling against the petitioner the imputations, which the documents do not bear out," the bench said.

ARGUMENTS

Advocate Kapil Rathod for the petitioner vehemently submitted that his client was a social worker and crimes registered against him are a result of political rivalry. The material relied upon by the Detaining Authority, does not justify the impugned order of detention.

Regarding the case registered at Chaturshringi Police Station Rathord claimed that the first information report nowhere disclose that the petitioner had allegedly used the weapons which would warrant application of the provisions contained in section 326 of the Penal Code and the Arms Act, 1959. The impugned order thus suffers from the vice of nonapplication of mind. The personal liberty of the petitioner has been trampled upon on the basis of unsustainable grounds, urged Mr. Rathor.

APP JP Yagnik for the State urged that the grounds on which the impugned order is challenged (extracted above), are vague and general and the petitioner has neither made out a case of non-compliance of the statutory requirements nor of nonapplication of mind.

(Shubham Rajendra Hingade v. State of Maharashtra).

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