Bombay High Court
Akshay Digambar Gaikwad ( In Jail) vs The State Of Maharashtra Through … on 8 August, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:7807-DB
Judgment wp327.25
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 327 OF 2025.
Akshay Digambar Gaikwad,
Aged about 25 years,
resident of Indira Nagar, Umarkhed,
Tahsil Umarkhed, District Yavatmal. ... PETITIONER.
VERSUS
1.The State of Maharashtra,
through Principal Secretary
(Appeals and Security) Home
Department, Mantralaya,
Mumbai-32.
2.The District Magistrate,
Yavatmal, Tahsil and District
Yavatmal. ... RESPONDENTS.
---------------------------------
Mr. A.A. Zade, Advocate for the Petitioner.
Mr. S.S. Doifode, A.P.P. for Respondents.
----------------------------------
CORAM : ANIL L. PANSARE AND
M. M. NERLIKAR, JJ.
Rgd.
Judgment wp327.25
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CLOSED FOR JUDGMENT ON : 04.08.2025.
JUDGMENT PRONOUNCED ON : 08.08.2025.
JUDGMENT (Per M.M. Nerlikar, J) :
Heard. Rule. Rule is made returnable forthwith. Shri
S.S. Doifode, learned A.P.P. waives service for Respondents. With
consent of the learned Counsel for the parties, the Writ Petition is
taken up for final hearing.
2. By this Writ Petition filed under Articles 226 and 227 of
the Constitution of India, the petitioner has raised a challenge to the
order of detention passed under Section 3[2] of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug-
Offenders and Dangerous Persons Act, 1981 (MPDA) by the
respondent no.2 dated 18.11.2024. He has also raised challenge to
the order of approval dated 29.11.2024 passed by the respondent
no.1. The learned Counsel appearing for the petitioner submits that
after approval of the order by the respondent no.1, again on
09.01.2025, the respondent no.1 was pleased to confirm the order
Rgd.
Judgment wp327.25
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passed by the respondent no.2 after receiving the opinion of the
Advisory Board, and therefore, he seeks leave to amend so as to
challenge the order dated 09.01.2025. We grant leave to amend to
that effect. Necessary amendment be carried out forthwith.
3. The learned Counsel for the petitioner has mainly
attacked the order of detention on three grounds by submitting that
if these three grounds are considered, then the order of detention
may not sustain. The same are as under :
(i) The first ground raised is, that there was no live link between
the order of detention and the last crime committed by the
petitioner. He submits that the last crime committed by the
petitioner is dated 09.08.2024, and the detention order was
passed on 18.11.2024, therefore, there is huge gap between
the last crime committed and the order of detention. He
submits that in order to fill the lacunae, in-camera
statements are shown to have been recorded.
(ii) The second ground, which he has taken out is that though
the petitioner was in custody and later released on bail, the
Rgd.
Judgment wp327.25
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bail order was not placed before the Detaining Authority.
This vital fact has not been considered by the Detaining
Authority.
(iii) The third ground is that the order impugned is based on one
offence on which the Detaining Authority has placed
reliance, cannot form the basis of order of detention for the
reason that the alleged act in the said first information report
is not detrimental to maintenance of public order. Further
he submits that the offence at the most can be said to be
individual in nature, which cannot disturb the public order,
however, it may at the most disturb law and order. He
further submits that the learned trial Court has granted bail
to the petitioner in the said offence, and therefore, it does
not have any impact on the society at large, and thus the
Detaining Authority has not subjectively satisfied himself and
erroneously declared the petitioner as dangerous person
defined under Section 2[b-1] of the MPDA Act.
The learned Counsel for the petitioner has strongly
Rgd.
Judgment wp327.25
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pressed the third ground, i.e. disturbance of public order. The
learned Counsel submits that the activities of the petitioner cannot
be said to be as disturbance to the public order. The learned Counsel
in this regard has taken us through the material on which the
Detaining Authority has relied i.e. Crime No.534/2024 registered on
09.08.2024 for the offence punishable under Sections 76, 115[2],
351[1], 351[2], 3[5] and 296 of the Bhartiya Nyaya Sanhita, 2023
(BNS) and Section 142 of the Maharashtra Police Act. He submits
that the said offence cannot be said to be causing disturbance to the
public order. At the most it can be said that it has disturbed the law
and order. To buttress his submission, he relied on the judgments of
Hon’ble Supreme Court in cases of (1) Mallada K. Sri Ram .vrs. The
State of Telangana and others (Criminal Appeal No.561/2022
decided on 04.04.2022 and (2)Arjun Ratan Gaikwad .vrs. The State
of Maharashtra and others (Criminal Appeal arising out of SLP (Cri)
No.12516/2024, decided on 11.12.2024).
4. On the other hand, the learned A.P.P. by filing an
affidavit in reply, submitted that the respondent no.2 Detaining
Rgd.
Judgment wp327.25
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Authority while passing the detention order of the petitioner has
properly considered the recent criminal offence committed by the
petitioner, i.e. Crime No.534/2024 registered on 09.08.2024 for the
offence punishable under Sections 76, 115[2], 351[1], 351[2], 3[5]
and 296 of the Bhartiya Nyaya Sanhita, 2023 (BNS) and Section 142
of the Maharashtra Police Act. He further submits that the Detaining
Authority after considering the above criminal offence, has
subjectively satisfied himself that the criminal activities of the
petitioner are extremely prejudicial to the maintenance of public
order, and it is necessary to order his detention. He further
submitted that so far as the live link is concerned, the date of order
of detention is 18.11.2024, however, the last crime committed by the
petitioner is dated 09.08.2024 i.e. within 6 months from the date of
last committed crime, and therefore, live link is not snapped. He
further submits that thereafter in-camera statements recorded on
07.11.2024 and 10.11.2024 respctively. He further submits that said
in-camera statements are duly verified and incident narrated in those
statements are found to be true and correct. Not only that, those
statements are perused by the Detaining Authority, and thereafter
Rgd.
Judgment wp327.25
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order of detention is passed. The learned A.P.P. submits that on
three grounds detention order was passed i.e. the last crime
committed by the petitioner and two in-camera statements. The
learned A.P.P. further submits that every act of the petitioner
mentioned in the first information report and two in-camera
statements constitute a separate ground for detention. It is not only
one ground on which the petitioner was detained. He further
submits that the recent offence registered against him definitely
affect the disturbance of public order. It is submitted that the
activities of the petitioner is prejudicial to the maintenance of public
order. He further submits that two in-camera statements recorded,
are verified by the competent Authority, and therefore there is no
force in the arguments of the learned Counsel for the petitioner that
the activities of the petitioner do not disturbs the public order. It is
further submitted by the learned A.P.P. that the bail order was
passed after the order of detention, and therefore, there was no
question to place the same before the Detaining Authority. Only
application was moved by the petitioner for grant of bail, when the
order of detention was passed. He draws attention to the order of
Rgd.
Judgment wp327.25
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detention wherein there is a reference to that effect, that the accused
has filed an application for bail and has apprehension that he will be
released on bail. This itself goes to show that the Detaining
Authority subjectively satisfied himself and thereafter the detention
order is passed. He further submits that all the mandatory provisions
under the MPDA are strictly followed, and there is no lacunae as
regards the procedural aspect is concerned. He submits that even
the Advisory Board has considered the representation moved by the
petitioner, and was of the opinion that there is sufficient ground to
detain the petitioner. Accordingly, the State Government also
confirmed the order of detention, after considering the opinion given
by the Advisory Board.
5. At the outset, the learned Counsel for the petitioner
submitted that he is not pressing earlier two grounds i.e. the first
ground relating to live link, and second – that when the detention
order was passed, the detenue was in custody. Since both these
grounds are not pressed, we are not considering the same.
6. We have considered the rival submissions of both the
Rgd.
Judgment wp327.25
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Counsel. The third ground on which much emphasis is placed by the
learned Counsel for the petitioner, we are dealing with the same.
7. Before considering the facts, it would be useful to
consider the provisions of the MPDA Act. Section 2[b-1] defines
‘Dangerous Person’, which reads as under :
“2(b-1) “dangerous person” means a person, who
either by himself or as a member or leader of a
gang, habitually commits, or attempts to commit
or abets the commission of any of the offences
punishable under Chapter XVI or Chapter XVII of
the Indian Penal Code or any of the offences
punishable under Chapter V of the Arms Act,
1959.”
It is necessary to consider next important provision i.e.
Section 2[a], which deals with the definition of ‘acting in any
manner prejudicial to the maintenance of “public order”‘. It takes in
its ambit slumlord, bootlegger, drug offenders, dangerous persons
etc. Section 2[a][iv], reads as under :
“2 In this Act, unless the context otherwise
requires,–
(a) “acting in any manner prejudicial to the
Rgd.
Judgment wp327.25
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maintenance of public order” means–
(i) .......
(ii) .......
(iii) .......
(iv) in the case of a dangerous person,
when he is engaged, or is making
preparation for engaging, in any of his
activities as a dangerous person, which affect
adversely, or are likely to affect adversely,
the maintenance of public order.”
8. Requirement of this sub-section is that the activities of
the person to be detained must affect public order. Therefore,
keeping in mind, it will have to be examined whether the Detaining
Authority had material before him to detain the petitioner with a
view to prevent him from acting in any manner prejudicial to the
maintenance of the public order.
9. So far as Crime No.534/2024 registered for the offence
punishable under Sections 76, 115[2], 351[1], 351[2], 3[5] and
296 of the Bhartiya Nyaya Sanhita, 2023 (BNS) and Section 142 of
the Maharashtra Police Act, is concerned, it is alleged in the first
information report that on 08.08.2024 at about 8.30 p.m. while the
Rgd.
Judgment wp327.25
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complainant’s brother Punjaji was buying goods at a grocery shop,
son of the complainant namely – Sai Datta Waghmare was present
there. Complainant’s brother Punjaji asked Datta not to play
gajjipatte or else he will call the police. The present petitioner –
Akshay was present there and he took the same upon him and
slapped brother of complainant, so also abused him in filthy
language. Komal, daughter of the complainant informed the
complainant that her uncle was beaten by the present petitioner
Akshay and his three friends. Thereafter, the complainant Pushpa
and her husband along with others reached the shop and tried to
convince Akshay, however, his brother Sachin and his two friends
Ajay and Akash suddenly started assaulting the complainant and
others. It is further alleged that Akshay pulled hair of complainant
Pushpa and tried to outrage her modesty. He has also threatened to
kill her. The two in-camera statements “A” and “B’ which were
recorded and relied upon to consider the disturbance of public
order, the gist of which reads as under :
“A”
“………….च्या सुमारास मी …… करीत हजर असतांना
अक्षय दिगांबर गायकवाड रा. इंदिरानगर हा त्यांचे दोनRgd.
Judgment wp327.25
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साथीदार मुलासह …… आला व मान्हाला की, मला दारू
पाहिजे तेंव्हा मी त्यांना म्हटले ……….. तेंव्हा त्याने भडवे,
हरामखोर तेरे को मालूम नही क्या मै कौन हुं, मै यहाँ का दादा
हु तेरे को….. है तो हमारेको दारू लाके ही देना पड़ेगा. तेंव्हा
मी त्यांना ….. करायचे आहे माझ्याकडे वेळ नाही. असे म्हटले
असता अक्षय गायकवाड हा त्यांचे साथीदारांसह चाकू हातात
घेवून माझ्या अंगावर येवून माझी कॉलर पकडून पोटाला
चाकू न लावून साले खुपसाही डालुंगा असे म्हणत मला
ढकलत असतांना ……… व मी त्यांना शांत राहण्या बाबत
विनवणी के ल्याने अक्षयने साले तू …….. बाहर मिल तेरे को
बताता हू असे म्हणत तो त्याचे साथीदारांसह तेथून निघून
गेला. अक्षय दिगंबर गायकवाड हा नेहमी शहरात त्याचे
साथीदारांसह हत्यार घेउन फिरून दहशत निर्माण करतो. तो
गुंड प्रवृत्तीच्या असल्याने व माझा हॉटेलचा व्यायसाय
असल्याने मी त्यास घाबरून तो माझे जीवाचे काहीतरी बरे
वाईट करील म्हणून मी त्याचे विरुद्ध पोलीस स्टेशनला तक्रार
के ली नाही. त्यांच्या पासून सरंक्षण करावे व माझे बयान गुप्त
ठेवण्यात यावे. मला साक्ष कमी बोलविण्यात येवू नये.”
“B”
“………… निशचीत तारीख आठवत नाही मी माझे
………………. यांना इंदिरानगर उमरखेड येथे भेटण्या करीत
जात असतांना इंदिरानगर मधील …….. जवळ अक्षय दिगंबर
गायकवाड रा. इंदिरानगर उमरखेड हा त्याचे इतर २
साथीरांसह उभा होता. त्यांनी ……………… विचारले कि, तू
यहांपे बार-बार कायको आता है, तेव्हा मी त्यांना
…………..जात आहे. तेंव्हा त्याने मला म्हण्टले के , साले तेरे को
मालूम नही क्या ओ मेरे ……….है. तेव्हा मी त्यांना म्हण्टले की
ते …………….मित्र असल्याने मी त्यांना भेटायला येतो. तेंव्हा
अक्षय गायकवाड हा त्याचे साथीदारांसह रागाने माझ्या जवळRgd.
Judgment wp327.25
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येवून माझी कलर धरून गळ्याला चाकू लावून साले तू मेरे को
पहचानता नही क्या, मैं यहाँ का दादा हूँ दुबारा मेरे एरिया मे
दिखा तो तेरा गेमही कर डलुंगा, अशी धमकी दिली. तेव्हा मी
त्यांना घाबरून मी पुन्हा इकडे येणार नही. मला एकदा जावु
दया अशी हाथ जोडून त्यांना विनंती करत असतांना तेवड्यात
तेथे इतर लोक जमा होवु लागल्याने अक्षय हा त्याचे साठी दार
माझ्या पासून दूर गेले. त्याचा फायदा घेवून
……………………….. अक्षय गायकवाड यांनी त्याचे
साथीदारांसह ……………………………….. त्याचा राग
मनात धरून मला सुद्धा अक्षय गायकवाड याने त्याच्या
मोहल्ल्यात न येण्या बाबत गळ्याला चाकू न लावून धमकी
दिली. तेंव्हा मी घाबरलेला असल्याने व तो माझी जिवाचे
काहीतरी बरे वाईट करील त्यामुळे मी त्याचे विरुद्ध पोलीस
स्टेशनला तक्रार के ली नही. तो नेंहमी मोहल्ल्यात व शहरात
त्याचे साथीदारांसह हत्यार घेवून फिरत असतो. व शहरात व
परिसरात दहशत निर्माण करून हाथियारच्या जोरावर
लूटमार करतो. त्यांच्या पासून माझे सरंक्षण करावे व माझे
बयान गुप्त ठेवण्यात यावे. मला साक्ष कमी बोलविण्यात येवू
नये.”
10. It would also be useful to refer to the law laid down by
the Hon’ble Supreme Court in the following cases :
In case of Mallada K. Sri Ram [supra], the Hon’ble
Supreme Court has observed as under :
“12. The distinction between a disturbance to
law and order and a disturbance to public order
has been clearly settled by a Constitution Bench inRgd.
Judgment wp327.25
14
Ram Manohar Lohia v. State of Bihar . The Court
has held that every disorder does not meet the
threshold of a disturbance to public order, unless it
affects the community at large. The Constitution
Bench held:
“51. We have here a case of detention under
Rule 30 of the Defence of India Rules which
permits apprehension and detention of a
person likely to act in a manner prejudicial
to the maintenance of public order. It
follows that if such a person is not detained
public disorder is the apprehended result.
Disorder is no doubt prevented by the
maintenance of law and order also but
disorder is a broad spectrum which includes
at one end small disturbances and at the
other the most serious and cataclysmic
happenings. Does the expression “public
order” take in every kind of disorders or
only some of them? The answer to this
serves to distinguish “public order” from
“law and order” because the latter
undoubtedly takes in all of them. 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 rivalRgd.
Judgment wp327.25
15
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 if 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. A District
Magistrate is entitled to take action under
Rule 30(1)(b) to prevent subversion of
public order but not in aid of maintenance
of law and order under ordinary
circumstances.
52. 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 notRgd.
Judgment wp327.25
16
security of the State. By using the
expression “maintenance of law and order”
the District Magistrate was widening his
own field of action and was adding a clause
to the Defence of India Rules.” (emphasis
supplied)
13. In Banka Sneha Sheela v. State of
Telangana, a two-judge Bench of this Court
examined a similar factual situation of an alleged
offence of cheating gullible persons as a ground
for preventive detention under the Telangana Act
of 1986. The Court held that while such an
apprehension may be a ground for considering the
cancellation of bail to an accused, it cannot meet
the standards prescribed for preventive detention
unless there is a demonstrable threat to the
maintenance of public order. The Court held:
“9. …learned counsel appearing on behalf
of the petitioner has raised three points
before us. First and foremost, he said there
is no proximate or live connection between
the acts complained of and the date of the
detention order, as the last act that was
complained of, which is discernible from the
first 3 FIRs (FIRs dated 12-12-2019, 12-12-
2019 and 14-12-2019), was in December
2019 whereas the detention order was
passed 9 months later on 28-9-2020. He
then argued, without conceding, that at best
only a “law and order” problem if at all
would arise on the facts of these cases and
not a “public order” problem, and referredRgd.
Judgment wp327.25
17
to certain judgments of this Court to
buttress the same. He also argued that the
detention order was totally perverse in that
it was passed only because anticipatory
bail/bail applications were granted. The
correct course of action would have been for
the State to move to cancel the bail that has
been granted if any further untoward
incident were to take place.
12. While it cannot seriously be disputed
that the detenu may be a “white collar
offender” as defined under Section 2(x) of
the Telangana Prevention of Dangerous
Activities Act, yet a preventive detention
order can only be passed if his activities
adversely affect or are likely to adversely
affect the maintenance of public order.
“Public order” is defined in the Explanation
to Section 2(a) of the Telangana Prevention
of Dangerous Activities Act to be a harm,
danger or alarm or a feeling of insecurity
among the general public or any section
thereof or a grave widespread danger to life
or public health.
15. There can be no doubt that what is
alleged in the five FIRs pertain to the realm
of “law and order” in that various acts of
cheating are ascribed to the detenu which
are punishable under the three sections of
the Penal Code set out in the five FIRs. A
close reading of the detention order wouldRgd.
Judgment wp327.25
18
make it clear that the reason for the said
order is not any apprehension of widespread
public harm, danger or alarm but is only
because the detenu was successful in
obtaining anticipatory bail/bail from the
courts in each of the five FIRs. If a person is
granted anticipatory bail/bail wrongly, there
are well-known remedies in the ordinary
law to take care of the situation. The State
can always appeal against the bail order
granted and/or apply for cancellation of
bail. The mere successful obtaining of
anticipatory bail/bail orders being the real
ground for detaining the detenu, there can
be no doubt that the harm, danger or alarm
or feeling of insecurity among the general
public spoken of in Section 2(a) of the
Telangana Prevention of Dangerous
Activities Act is makebelieve and totally
absent in the facts of the present case.
32. On the facts of this case, as has been
pointed out by us, it is clear that at the
highest, a possible apprehension of breach
of law and order can be said to be made out
if it is apprehended that the detenu, if set
free, will continue to cheat gullible persons.
This may be a good ground to appeal
against the bail orders granted and/or to
cancel bail but certainly cannot provide the
springboard to move under a preventive
detention statute. We, therefore, quash the
detention order on this ground….”
Rgd.
Judgment wp327.25
19
14. In Sama Aruna v. State of Telangana7 , a
two-judge Bench of this Court examined a case
where stale materials were relied upon by the
Detaining Authority under the Telangana Act of
1986. The order of detention pertained to
incidents which had occurred between nine and
fourteen years earlier in relation to offences
involving a criminal conspiracy, cheating,
kidnapping and extortion. This Court held that a
preventive detention order that is passed without
examining a live and proximate link between the
event and the detention is tantamount to
punishment without trial. The Court held:
“17. We are, therefore, satisfied that the
aforesaid detention order was passed on
grounds which are stale and which could
not have been considered as relevant for
arriving at the subjective satisfaction that
the detenu must be detained. The detention
order must be based on a reasonable
prognosis of the future behaviour of a
person based on his past conduct in light of
the surrounding circumstances. The live and
proximate link that must exist between the
past conduct of a person and the imperative
need to detain him must be taken to have
been snapped in this case. A detention order
which is founded on stale incidents, must be
regarded as an order of punishment for a
crime, passed without a trial, though
purporting to be an order of preventive
detention. The essential concept ofRgd.
Judgment wp327.25
20
preventive detention is that the detention of
a person is not to punish him for something
he has done but to prevent him from doing
it. See G. Reddeiah v. State of A.P.[G.
Reddeiah v. State of A.P., (2012) 2 SCC 389
: (2012) 1 SCC (Cri) 881] and P.U. Iqbalv.
Union of India [P.U. Iqbal v. Union of India,
(1992) 1 SCC 434 : 1992 SCC (Cri) 184].”
11. Further in case of Arjun Ratan Gaikwad [supra],
recently the Hon’ble Supreme Court has observed as under :
“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
Another:
“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 orderRgd.
Judgment wp327.25
21
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
Rgd.
Judgment wp327.25
22
permissible.
14. Recently, a Bench of this Court has referred
to various judgments of this Court while following
the law laid down by 8 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 Others.
“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,
Rgd.
Judgment wp327.25
23
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)”
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
Rgd.
Judgment wp327.25
24
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. …
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
Rgd.
Judgment wp327.25
25
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 11 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
Rgd.
Judgment wp327.25
26
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.”
12. Thus, in view of above, one thing is clear that the
disturbance to public order means that the activity of a person must
have an impact on public at large or general public, evoking feelings
of fear, panic, or insecurity. In case of Arun Ghosh .vrs. State of West
Bengal – (1970) 1 SCC 98, the Hon’ble Supreme Court has given an
example in order to understand disturbance of public order, that if
somebody commits a brutal murder within the four corners of the
house, it will not amount to threat to the public order. As against
this, if a person in a public place, where number of persons 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. However, in a
given case, even if we consider the first information report,
registered against the petitioner, the act of the petitioner cannot be
said to be an act of disturbing public order. At the most the act of
the petitioner can be said to be disturbance to law and order.
Rgd.
Judgment wp327.25
27
Though the incident had taken place in a public place, still the
contents of the first information report are individual in nature.
There is no panic or insecurity or any impact on the society at large.
Not only that, it can be said that there is no terror or ruckus created
by the act of the petitioner. Further even if we deal with the in-
camera statements, which are recorded by the Authority, the
contents of those statements are in the nature of committing an
offence in the individual capacity. Even those two incidents which
were narrated by “A” and “B” depicts that they do not have any
impact on the society at large, and therefore, considering the entire
record, it can be said that the Detaining Authority have failed to
consider the fact that the activities of petitioner are individual in
nature, and the activities are not prejudicial to the public order and
therefore, subjective satisfaction arrived is against the mandate of
law as discussed above.
13. It is worthwhile to note that, merely reproducing the
contents of the statements “A” and “B”, cannot show subjective
satisfaction contemplated in law. The subjective satisfaction has to
Rgd.
Judgment wp327.25
28
be about unwillingness of such persons to come forward and to give
statement against the petitioner. There is no whisper about the
same in the impugned order. Therefore, the impugned order which
is based on such in-camera statements is therefore, bad in law. It
also creates doubt about the verification of statement for the reason
that the proposal shown to have forwarded on 13.11.2024, to the
S.D.P.O. Yavatmal for verification from Umerkhed, which is more
than 100 kms, and on the same day the S.D.P.O. Yavatmal verified
the statements of both the witnesses by going on the spot. With such
a rocket speed the verification was done, is undigestable.
Therefore, mere completing formality of verification is in direct teeth
of process of verification. The verification is most important part of
the process of detention law and it is not an empty formality. In real
sense, verification shall be done and therefore, reliance cannot be
placed on such verified statements which creates doubt. Therefore,
from above, all the subjective satisfaction vitiates. We do not find
that the activities of the petitioner would disturb the public order,
and therefore, the petitioner cannot be termed as a dangerous
person. In that view of the matter the petition succeeds and it is
Rgd.
Judgment wp327.25
29
allowed, hence, we pass the following order.
ORDER
(i) Criminal Writ Petition is allowed.
(ii) The order of detention passed by the respondent no.2
dated 18.11.2024, so also the order of approval dated
29.11.2024 by the respondent no.1, and further
confirmation order, after opinion of the Advisory Board
by the respondent no.1 dated 09.01.2025, are hereby
quash and set aside.
(iii) We direct that the petitioner be released forthwith, if
not required in any other offence.
(iv) Rule is made absolute in aforesaid terms.
(v) Pending Misc. Applications, if any, also stands disposed
of.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 11/08/2025 10:32:16