Bombay High Court

Mohit Bhayyu Subhash Suryavanshi vs The State Of Maharashtra Thr Its ... on 27 February, 2025

Author: Nitin W. Sambre

Bench: Nitin W. Sambre

2025:BHC-NAG:2438-DB




                                                     1                    wp784.2024

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

                          CRIMINAL WRIT PETITION NO.784/2024

              Mohit @ Bhayyu S/o Subhash Suryavanshi,
              aged about 22 Yrs., Occ. Lobour,
              R/o Library Square, Frezarpura,
              Amravati, Distt. Amravati.                       ...      Petitioner
                       - Versus -
              1.   The State of Maharashtra,
                   through its Secretary,
                   Home Department (Special),
                   Mantralaya, Mumbai.

              2.   The Commissioner of Police,
                   Amravati City, Distt. Amravati.

              3.   The Police Inspector,
                   P.S. Frezarpura, Distt. Amravati.           ...   Respondents
                             -----------------
              Ms. F.N. Haidari, Advocate for the petitioner.
              Mr. S.S. Doifode, A.P.P. for respondent Nos.1 to 3.
                          ----------------
              CORAM: NITIN W. SAMBRE & MRS.VRUSHALI V. JOSHI, JJ.
              DATED: 27.2.2025.



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

Rule. Rule made returnable forthwith. Heard finally

with the consent of learned Advocates for the parties.

2 wp784.2024

2. The petitioner has challenged the order dated

7.6.2024 passed by respondent No.1 whereby the order dated

13.4.2024 passed by respondent No.2 for preventive detention of

petitioner under Section 3 of the Maharashtra Prevention of

Dangerous Activities of Slumlords, Bootleggers, Drug Offenders,

Dangerous Persons and Video Pirates, Sand Smugglers and

Persons Engaged in Black Marketing of Essential Commodities

Act, 1981 came to be confirmed.

3. Learned Advocate for the petitioner submitted that

the impugned orders are passed by the detaining authority on

basis of non-application of mind and also not adhering to the

statutory procedure.

4. The grounds of detention appears to have been based

on two offences namely Crime Nos.128/2024 and 276/2024 for

the offence punishable under Sections 4/25 of Arms Act read

with Section 135 and 145 of the Maharashtra Police Act. Both 3 wp784.2024

the offences are pending before the J.M.F.C. Court. Both the

offences are committed within the jurisdiction of Frezarpura

Police Station, Amravati. In both the offences, notice under

Section 41(1) of the Act was issued to the petitioner.

5. The main ground to detain the petitioner is that the

detaining authority had directed externment of the petitioner

which he has flouted and entered the jurisdiction of Frezarpura

Police Station and committed both the above said offences. Two

confidential statements are also considered for passing the

detention order. The statements are recorded only to initiate the

proceedings for detention against the petitioner. The statements

were not verified by the detaining authority and thus there is lack

of subjective satisfaction. The contents of the detention order

would show that at the most there was 'law and order situation'

and public order was not disturbed requiring the detention of the

petitioner. Further there was no proper verification of in-camera

statements by the detaining authority and there is no remark that 4 wp784.2024

the verification has been properly done. Therefore, the detention

order is illegal and deserves to be quashed and set aside.

6. Per contra, learned A.P.P. submitted that the

petitioner has breached the order of externment and intentionally

entered the externment area and has committed new offences in

the jurisdiction of respondent No.3. The activities of the

petitioner cannot be stopped by means of preventive action and

established laws, the petitioner was required to be detained.

Hence he prayed to dismiss the petition.

7. It has to be noted from the impugned orders that the

above-said two offences, which are considered while passing the

detention order against the petitioner, though are committed

flouting the externment order, are under Sections 4 and 25 of the

Arms Act read with Section 135 and 142 of the Maharashtra

Police Act. In both the offences police received information that

the petitioner is roaming with sword and knife and they caught 5 wp784.2024

him red-handed. According to the detaining authority it disturbs

'public order'. It is, therefore, necessary to consider the judgment

of the Hon'ble Apex Court in Ameena Begum V/s. The State of

Telangana and others reported in AIR 2023 SC 4273 particularly

paragraphs 32, 33, 34 and 35 which read as under:-

"32. We may refer to the decision of the Constitution Bench of this Court in Ram Manohar Lohia vs. State of Bihar, where the difference between "law and order" and "public order" was lucidly expressed by Hon'ble M. Hidayatullah, J. (as the Chief Justice then was) in the following words:

"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. The 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.

6 wp784.2024

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."

(underlining ours, for emphasis)

33. 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, CJ. in Arun Ghosh vs. State of West Bengal, is this: "Does it [read: 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?"

In that case, 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 7 wp784.2024

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". In the process of quashing the impugned order, the Chief Justice while referring to the decision in Ram Manohar Lohia (supra) also ruled:

"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 affect 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 affect 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."

34. In Kuso Sah vs. The State of Bihar, Hon'ble Y.V. Chandrachud, J. (as the Chief Justice then was) speaking for the Bench held that:

"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.

8 wp784.2024

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."

(underlining ours, for emphasis)

35. Turning our attention to section 3(1) of the Act, the Government has to arrive at a subjective satisfaction that a goonda (as in the present case) has to be detained, in order to prevent him from acting in a manner prejudicial to the maintenance of public order. Therefore, we first direct ourselves to the examination of what constitutes 'public order'. Even within the provisions of the Act, the term "public order" has, stricto sensu, been defined in narrow and restricted terms. An order of detention under section 3(1) of the Act can only be issued against a detenu to prevent him "from acting in any manner prejudicial to the maintenance of public order".

"Public order" is defined in the Explanation to section 2(a) of the Act as encompassing situations that cause "harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread danger to life or public health".

8. Only because the petitioner had committed the said

offences during his externment period, it cannot be termed as a

breach of public order. The remedy for the externment authority 9 wp784.2024

was to take action for breach of externment order instead offences

under Sections 4 and 25 of the Arms Act read with Sections 135

and 142 of the Maharashtra Police Act are registered for roaming

with deadly weapons and on the basis of said two offences, the

detention order is passed which is not sufficient as per the

observations made by the Hon'ble Apex Court in the case of

Ameena Begum (supra).

9. On perusal of the statements of witnesses on the basis

of which the detention order is passed, it is seen that they are