Bombay High Court

Nafis Khan Aziz Khan vs State Of Mah. Thr. Its Secretary Home ... on 1 July, 2024

Author: Vibha Kankanwadi

Bench: Vibha Kankanwadi

2024:BHC-NAG:7490-DB




                                                    1                   wp843.2023

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH : NAGPUR

                       CRIMINAL WRIT PETITION NO.843/2023

              Nafis Khan Aziz Khan
              Aged about 41 years, Occ. Business,
              R/o Near Navdar Jin, Hafizpura,
              Mangrulpir, Dist Washim                          ...    Petitioner
                    - Versus -

              1.   State of Maharashtra, through Its
                   Secretary, Home Department,
                   (Special) Mantralaya, Mumbai.

              2.   Collector/District Magistrate,
                   Washim.                                     ...   Respondents
                          -----------------
              Ms. Jaishree Tripathi, Advocate with Mr. V.D. Graham and Mr.
              A.P. Paliwal, Advocates for the Petitioner.
              Mr. I.J. Damle APP for Respondent Nos.1 and 2.
                          ----------------
              CORAM: SMT. VIBHA KANKANWADI & MRS.VRUSHALI V. JOSHI, JJ .
              DATED: 1.7.2024.



               JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)

Heard Ms. Jaishree Tripathi, learned Advocate for the

petitioner and Mr. I.J. Damle learned A.P.P. for respondent Nos.1

and 2. Rule.

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2. The petitioner, who has been detained under

Section 3 of Maharashtra Prevention of Dangerous Activities of

Slumlords, Bootleggers, Drug Offenders, Dangerous Persons and

Video Pirates Act, 1981 (for short "Act") by order dated

25.10.2023 passed by respondent No.2-Collector, Washim, has

preferred the present petition assailing the legality and validity of

the said detention order which is confirmed by respondent No.1

under Section 12 of the said Act. The subjective satisfaction was

arrived at by the detaining authority as the petitioner is a person

engaged in black-marketing of essential commodities.

3. It is mentioned in the detention order that the

petitioner bought food-grains provided by the Government to be

distributed under the public distribution system from the

beneficiaries and stored them for black-marketing. The activities

of the petitioner are, therefore, hazardous and prejudicial to the

public order. The criminal activities of the petitioner have created

terror in the minds of people.

3 wp843.2023

4. Following 3 crimes have been taken into

consideration by the detaining authority while passing the

detention order:

(a) Crime No.406/2023 under Sections 3 and 7 of

Essential Commodities Act, 1955.

In this crime, on the inspection of vehicle No.MH 29

TC 0060, 9 bags of rice weighing 5 quintle were found in the car

of the petitioner without government stamping on it. The said

grain was bought by the petitioner by luring the beneficiaries and

for selling them at high price.

(b) Crime No.589/2023 under Sections 3 and 7 of Essential

Commodities Act, 1955.

In the said offence, vehicle No.MH 28 BB 0668 was

found in suspicious condition, the complainant Sima Vasantrao

Dandal, Food Supply Inspector, inspected the vehicle in which

500 bags of rice and one bag of wheat were found without

government stamp.

4 wp843.2023

506 of Indian Penal Code and Sections 3(1)(r) and 3(1)(s) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for short "Atrocities Act").

In this crime, the petitioner hit the complainant's

scooter, who was accompanied with his friend, then he showed

small knife and abused obscenely, uttered caste based slurs and

threatened to kill them.

5. Ms. Tripathi, learned Advocate for the petitioner

submitted that in Crime Nos.406/2023 and 589/2023 the

petitioner is served with notice under Section 41(1) of Criminal

Procedure Code and was granted anticipatory bail. It is submitted

that when normal laws of land are sufficient and as there is special

enactment i.e. Essential Commodities Act, 1955 for trying the

above offences there was no need to pass a detention order against

the petitioner.

5 wp843.2023

6. He states that the authorities have taken into

consideration the offences which are registered under Sections

279, 294 and 506 of Indian Penal Code and Sections 3(1)(r) and

3(1)(s) of Atrocities Act vide Crime No.583/2023. The said

crime falls under various sections of I.P.C. and Atrocities Act and,

therefore, is extraneous. The said crime cannot be said to be the

prejudicial activity meaning thereby "person engaged in

black-marketing" under Essential Commodities Act, therefore,

this shows non-application of mind on the part of detaining

authority.

7. On perusal of the in-camera statements, it can be seen

that the statements of witnesses do not give any specific date of

incident and both the alleged offences have been recorded on

8.9.2023 whereas the incidents have occurred in the month of

June and July 2023 i.e. after about two-three months. The

incidents are stated to have occurred in isolation and against an

individual person.

6 wp843.2023

8. Mr. Damle, learned A.P.P. vehemently opposed the

contentions of the petitioner stating that the subjective

satisfaction arrived at by the detaining authority is narrated in

para Nos.10 and 11 of the grounds of detention. Also it is stated

in para No.11 of the grounds of detention that the normal laws are

not sufficient to curb the criminal activities of the petitioner.

9. Learned A.P.P. states that it is true that the incidents

mentioned in the in-camera statements are of June and July 2023,

however, thereafter the petitioner continued with his criminal

activities and as far as the offence under the Atrocities Act is

concerned, the entire criminal activities of the petitioner have

been considered while passing the detention order.

10. The challenge to the detention order can be

conveniently evaluated on the following grounds:-

First ground is that the activities of the petitioner are

not prejudicial to the maintenance of public order. There is no

subjective satisfaction arrived at by the detaining authority.

7 wp843.2023

There is failure to place before the detaining authority the copy of

the bail orders.

11. The learned Advocate for the petitioner has stated

that none of the offences can be taken into account by respondent

No.1 to pass the impugned order of detention which do not

reflect that the activities of the petitioner are prejudicial to the

maintenance of public order. In order to properly appreciate the

aforesaid submissions it is necessary to note the narration of facts

in respect of crimes considered by the authority. Three crimes are

considered by the authority. Crime No.406/2023 is for the

offence punishable under Sections 3 and 7 of Essential

Commodities Act and Crime No.589/2023 is also for the same

offence. In Crime No.406/2023 the Sub-Inspector of Tehsil of

Mangrul Pir has lodged the complaint. He has stated that on

16/6/2023 while inspection of vehicle No.MH29 TC 0060, nine

bags of rice weighing five quintal were found. There was no

government stamping on it. The said grains were to be

distributed through the public distribution system and fact that it 8 wp843.2023

was purchased from them and was to be sold in open market at

high price and, therefore, the crime is registered. Notice was

issued under Section 41(1) of Cr.P.C. and the chargesheet was also

filed.

12. In another Crime No.589/2023 Sub-Inspector has

lodged the complaint on 9.8.2023. He found the vehicle MH 28

BB 0668 in a suspicious condition and, therefore, he took the

vehicle to the police station and inspected the vehicle and found

500 bags of rice, one bag of wheat and there was no stamp on it.

The offence is registered. In this case the anticipatory bail was

granted to the petitioner.

13. Third crime is Crime No.583/2023 under Section

279, 294 and 506 of Indian Penal Code and Sections 3(1)(r) and

3(1)(s) of the Atrocities Act. The complainant is Mangesh

Babanrao Savke. He has lodged the complaint stating that on

10.8.2023 the complainant and his friend were going on their

scooter. The petitioner came on his bicycle in front of Dinesh

Thak's hotel and hit the complainant's scooter and, therefore, 9 wp843.2023

both of theme fell down. After that the petitioner showed small

knife and abused in filthy language and abused him by insulting

on his caste. The crime was registered for said offences and in said

crime the accused was arrested.

14. From the nature of crimes it does not appear that it

had elements prejudicial to the maintenance of public order which

can be discerned from the detention order. The other accused

were also arrested in the said offences.

15. It is necessary to consider two confidential statements

on which the detaining authority has relied on. The witness "A"

has stated that the incident occurred in the month of July 2023.

The truck which was owned by the petitioner had given cut to his

motorcycle and he fell down. His vehicle also got damaged.

When he asked the driver why he is driving his vehicle rashly and

asked him to give the damages of his vehicle the driver told that

this vehicle is of the petitioner. Thereafter the petitioner came

there, abused him and gave threats of committing the accident by

a big vehicle.

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16. The witness "B" has also stated that the petitioner

gave threats to him on suspicion that he had informed the police

about the grains which he was purchasing and selling and he

slapped him.

17. Apparently, the basis of the aforesaid three crimes and

two in-camera statements of witnesses the detaining authority has

arrived at the satisfaction that the petitioner is a dangerous person

and the petitioner indulged in activities which were prejudicial to

the maintenance of public order. Upon careful perusal of aforesaid

narration of facts, we find considerable substance that none of the

three crimes relied upon by the detaining authority, justify an

inference that the activities attributed to the petitioner have had

propensity to disturb the public order. The distinction between

the concepts of public order and law and order is well recognized.

Public order is something more than ordinary maintenance of law

and order. 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 11 wp843.2023

disturbance of the public order or it merely affected an individual

leaving the tranquillity of society undisturbed. It is, therefore,

said that the essential distinction between the concepts of public

order and law and order is not 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 prejudicial to

the maintenance of public order.

18. In case of Piyush Kantilal Mehta V/s. Commissioner

of Police reported in 1989 Supp (1) SCC 322 this Court took the

view that in order that an activity to be said adversely affecting the

maintenance of public order, there must be material to show that

there has been a feeling of insecurity among the general public. If

any act of a person creates panic or fear in the minds of the

members of the public upsetting the even tempo of life of the

community, such act must be said to have a direct bearing on the

question of maintenance of public order. The commission of an 12 wp843.2023

offence will not necessarily come within the purview of public

order which can be dealt with under ordinary general law and the

law of the land.

19. On the aforesaid observations if we take into account

the offences considered for passing the order of detention it

indicates that the alleged offences were committed and the

offences under the Essential Commodities Act are registered. The

order under Section 3 of Essential Commodities Act is not filed

along with F.I.Rs. The activity of the petitioner can be controlled

by taking action under the said Act, which is already taken. On

perusal of the statements and in totality of the circumstances the

offences do not make out acts of the petitioner being prejudicial

to the maintenance of public order. Statements of witnesses also

do not come under the purview of prejudice to the maintenance

of public order. On the aforesaid consideration the subjective

satisfaction arrived at by the detaining authority that the

petitioner is a dangerous person within the meaning of

Section 2(b-1) of the Act and the activities of the petitioner were 13 wp843.2023

adversely affecting the maintenance of public order cannot be said

to be based on sustainable grounds. Thus the subjective

satisfaction is vitiated for failure to recognize distinction between

public order and law and order. Reference in this context can be

made to a judgment of the Hon'ble Supreme Court in case of

Pushkar Mukharjee V/s State of West Bengal reported in 1970 SC

852 as under:-

"8. .... Does the expression "public order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient 14 wp843.2023

for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."

20. A useful reference can also be made to the Judgment

of the Supreme Court in the case of Mustakmiya Jabbarmiya

Shaikh V/s. M.M. Mehta, Commissioner of Police & Ors. , (1995)

3 SCC 237. In the said case, in the context of provisions

contained in Section 3 of the MPDA Act, the Supreme Court

illuminatingly postulated the conditions which are required to be

satisfied to pass a valid detention order under Section 3 of the

MPDA Act and the distinction between "law and order" and

"public order" in the following words:

"9........ It, therefore, becomes necessary to determine whether besides the person being a "dangerous person" his alleged activities fall within the ambit of the expression "public order". A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it maybe stated that in order to bring the activities of a person within the expression of "acting in any manner prejudicial to 15 wp843.2023

the maintenance of public order", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a breach of "law and order"or it amounts to "public order". If the activity falls within the category of disturbance of "public order" then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghosh V. State of W.B. (1970) 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order. Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would 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 tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amount only to a breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is 16 wp843.2023

jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different. Again in the case of Piyush Kantial Mehta v. Commissioner of Police, 1989 Supp (1) SCC 322 this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land."

21. One of the ground to challenge the detention order is

that the opportunity to make representation before the authority

is not given to the petitioner. On perusal of report of Advisory

Board it is reveals that the opportunity was given to the petitioner

to make a representation, which was considered by the Advisory

Board. Therefore, this ground is not available to the petitioner.

17 wp843.2023

22. The bail orders are also considered by the detaining

authority.

23. The concept of law and order and disturbance of

public order is totally different and the detention order in this case

will not disturb the public order. Hence the impugned order