Bombay High Court Upholds Detention Order Under MPDA Act Based on Public Order Disturbance. Petitioner's Challenge to Detention of Sister's Brother as Dangerous Person Fails as Court Finds Sufficient Material Showing Terror Wave Affecting Community.

Criminal writ petition under Article 226 challenging preventive detention order

Petitioner (sister of detenu) sought quashing of detention order dated 21/9/2004

Alleged that grounds of detention did not affect public order but only law and order, and non-placing of N.C. complaints before detaining authority vitiated order

Whether the alleged activities of the detenu affected public order or merely law and order, justifying detention under the MPDA Act. Whether non-placing of N.C. complaints no. 1576 of 2004 and 1579 of 2004 before the detaining authority vitiated the detention order.

Petitioner argued that the incident in bakery occurred at night within four walls, affecting only individuals, and was outcome of previous enmity; hence it was a private crime affecting law and order, not public order. Petitioner contended that the in-camera statements were stereo-type and did not show disturbance to public order. Petitioner submitted that N.C. complaint no. 1576 of 2004 filed by detenu's associate was a vital and material document, being a cross-case, and its non-placement before detaining authority affected subjective satisfaction. Respondents argued that the incident, especially the threatening of gathered public with burning planks, affected public order, and the detenu was a dangerous person. Respondents maintained that the N.C. complaints were not vital and the petitioner failed to produce them to prove their materiality.

For an activity to affect public order, it must have the potentiality to disturb the even tempo of life of the community; the length, magnitude and intensity of terror wave unleashed must be such as to affect a large section of people. In the present case, the incident of the detenu threatening members of public with burning planks outside the bakery after causing damage inside demonstrated such a terror wave. Merely because an incident occurs within a premises, if its reach extends to the public, it can constitute a public order disturbance. Further, a document is not vital and material unless its absence would have affected the subjective satisfaction of the detaining authority; the petitioner must place it before the court to establish its vitality. In this case, the N.C. complaints were inconsistent and would not have influenced the detention decision.

The 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 on society. It is potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order. In our opinion, an incident of this type which had taken place at 1.30 at night in a busy locality of Mumbai, would certainly unleash a wave of terror in general public. After reading the text of the N.C. complaints, we are of the opinion that the case made out by the petitioner in the petition is not truthful.

The detention order was issued on 21/9/2004. The petitioner filed the writ petition thereafter. The High Court heard the matter and delivered judgment on 20/6/2005. No prior court decisions were mentioned.

• Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981: 2(b-1), 3(2)
• Indian Penal Code: 324, 452, 427, 114
• Constitution of India: 226