2004(4) Crimes 92 (SC)
Supreme Court of India
(From Allahabad High Court)
Arijit Pasayat & C.K. Thakker, JJ.
State of U.P. & Anr. —Appellants
versus
Sanjai Pratap Gupta @ Pappu & Ors. —Respondents
Criminal Appeal No. 1040 of 2004
(Arising out of SLP (Crl.) No. 4267/2003)
Decided on 20-9-2004

Important point
Distinction between areas of “law and order” and “public order” is one of the degree and extent of reach of the act in question upon society.

Headnote:National Security Act, 1980—Sections 3(2) and 5-A—Preventive detention order—Detenu was arrested in a murder case and then grounds of detention referred to several earlier incidents highlighting criminal antecedents of detenu creating a sense of terror in minds of general public—High Court in Habeas Corpus writ set aside detention order holding that necessary documents to substantiate allegations relating to earlier incidents were not supplied to detenu and two aspects highlighted in grounds of detention were not separable—State appeal—Question to be seen was whether activities of detenu were prejudicial to “public order”—Distinction between “Law and Order” and “public order”—True test is not the kind but potentiality of the act in question—True distinction is one of the degree and extent of the reach of the act in question upon society—Grounds of detention referred to two aspects, one relating to criminal background of antecedents and other relating to a particular incident—Two were separate and Section 5-A of the Act was applicable—High Court was not justified in holding to contrary and impugned order could not be sustained—Since live link had not yet snapped, detenu was liable to be taken back to custody.

       Held : 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 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 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 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 concerning ‘law and order’. The question to ask is: “Does it lead to disturbance of the current life of the 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 its facts. (Para 7)

       The distinction between ‘law and order’ and ‘public 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 determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different”. (See Babul 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). (Para 11)

       A bare perusal of the quoted portion from the grounds of detention makes it clear that two aspects i.e. one relating to criminal background of antecedents and other relating to a particular incident were treated separately. This becomes apparently clear because the detaining authority in the backdrop of the criminal antecedents referred to the particular act. Therefore, one was the general background, and the other was the particular incident. They are clearly separable. Section 5-A of the Act was introduced to take care of the situations when one or more of the grounds can be separated from the other grounds for justifying detention. In Attorney General for India and Ors. v. Amratlal Prajivandas and Ors. (1994(5) SCC 54) it was observed that where the detention order is based on more than one ground, by a legal fiction it would be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent one. In that case the Constitution Bench was considering scope of Section 5-A of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 in short ‘COFEPOSA Act’) which is in pari materia with Section 5-A of the Act. In view of the factual position analysed, the inevitable conclusion is that Section 5-A is applicable to the case and the High Court was not justifying in holding to the contrary. The High Court’s judgment is therefore clearly indefensible. (Paras 16 and 18)

       For determining the question as to whether the detenu has to go back to detention, the factual position has to be analysed. It has to be seen whether the effect of the previous acts was continuing or likely to recur. When background facts of present case are considered it is evident that the time gap is not very wide and for considerable length of time the matter is pending in this Court and the detenu had taken nearly three months to file his counter to the special leave petition filed. Judged from these angles it is clear that the live link is not snapped and the apprehension of the detaining authority about the detenu’s prejudicial activities cannot be faulted. The impugned judgment of the High Court is set aside. The detenu shall surrender forthwith for serving the remainder of the period of detention. (Para 19)

       Result : Appeal allowed.