Preventive detention can’t be easy substitute to deal with law & order problems, rules Bombay HC | Mumbai News – Times of India


MUMBAI: Preventive detention that impinges on the prized personal liberty of a citizen cannot be resorted to as an easy substitute for dealing with ordinary law and order problems, the Bombay high court has ruled, quashing the detainment of a Pune resident.
An HC bench of Justices S S Shinde and N J Jamadar last week set aside the preventive detention order, which did not specify a period, passed on March 2, 2021, by the Pune district magistrate. It found “no material which would justify the inference that the activities indulged in by the petitioner were prejudicial to the maintenance of public order”.
The Supreme Court has held that “public order” is a far wider concept than “law and order”. “Public order is the even tempo of life of the community taking the country as a whole or even a specified locality,” it had said.
Nilesh Ghaywal had been detained under the Maharashtra prevention of dangerous activities of slumlords, bootleggers, drug-offenders and dangerous persons Act (MPDA), 1981, on the grounds of committing crimes using deadly weapons and having “created a reign of terror in the jurisdiction of Koregaon Park (in Pune) and… Bhigwan police station (Pune rural area)”.
His advocate Satyavrat Joshi cited another SC ruling to argue that “stray acts” are not subversive of public order. “Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb society to the extent of causing a general disturbance of public tranquillity,” the SC had said in a 1970 judgment.
Joshi also submitted that the authorities claimed to have recorded in-camera statements of two witnesses as “the persons were not willing to come forward due to fear of reprisal”. He argued that an FIR lodged against Ghaywal by a person alleging kidnapping and death threats and the two alleged confidential statements do not make out a case about disturbing public order. Joshi also pointed out Ghaywal had been granted pre-arrest bail in the kidnapping case.
Additional public prosecutor M H Mhatre justified the detention in public interest and said the subjective satisfaction of the detaining authority cannot be tested by the HC in its writ jurisdiction.
The HC said an act by itself or its gravity is not the determining factor in disturbing of public order. “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,’’ said Justices Shinde and Jamadar. “It is trite that disorderly behavior of a person in public or commission of an offence is bound to affect the peace prevailing in the locality to some extent and may also bear upon law and order, but every such act of disorderly behavior or commission of offence does not necessarily jeopardise the maintenance of public order. This proposition governs the case at hand with full force,” they added.

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