TaxTMI 
TaxTMI 
2004 (8) TMI 701
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....s as highlighted in the grounds of detention by no stretch of imagination can be called to affect public tranquility and/or be prejudicial to the maintenance of public order. It was submitted that the incidents to which reference was made in the grounds of detention allegedly took place long back and there was no live link to warrant the order of detention. The High Court held that though there was proximity with the incident highlighted in the order of detention there was nothing to show that those acts were affecting maintenance of public order. It was further held that even if the detenu was held to be a goonda and land grabber that was not sufficient to warrant preventive detention. Accordingly the order of detention was quashed. Learned counsel for the appellants submitted that the High Court's approach is clearly erroneous. The grounds of detention not only referred to the two specific instances but also clearly indicated as to how nearly 30 cases were instituted against the detenu and the adverse effect of his activities which created a sense of terror affecting public tranquility. Reference was made to paragraph 3 of the order of detention which according to learned co....
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.... prognostication of possible future manifestations of similar propensities on that part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself. with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no doubt, is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other. These aspects were highlighted in Union of India v. Amrit Lal Manchanda and Ors., [2004] 3 SCC 75. A few provisions which have relevance need to be noted. Section 2(b) and 2(g) define 'boot legger' and 'goonda' respectively. They read as follows: "2(b)....
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.... whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. It is the length, magnitude and intensity of the terror wave unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting 'public order' from that concerning 'law and order'. The question of ask is; "Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed"? This question has to be faced in every case on its facts. "Public order" is what the French call 'ordre publique' and is something more than ordinary maintenance of law and order. The test to be ad....
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....[1970] 3 SCR 288; Nagendra Nath Mondal v. State of West Bengal, [1972] l SCC 498). The distinction between 'law and order and 'public order' has been pointed out succinctly in Arun ghosh 's case (supra). According to that decision the true 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 upon society". The Court pointed out that "the act by itself is not determinant of its own gravity. In its quality it may not differ but in its potentiality it may be very different". (See Babul Mitra alias Anil Mitra v. State of West Bengal and Ors., [1973] l SCC 393, Milan Banik v. State of West Bengal, [1974] 4 SCC 504. The true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itse....