judgement:
RISDICTION: Criminal Appeal No. 47 of 1992.
From the Judgment and Order dated 13/14.8.1991 of the Bombay High Court in Crl.
W.P.No. 597 of 1991.
WITH Writ Petition (CRL.) No. 1247 of 1991.
238 (Under Article 32 of the Constitution of India) Dr. Y.S. Chitale and V.B. Joshi for the appellants/Petitioners.
Altaf Ahmed, Addl.
Solicitor General, S.M. Jadhav and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by Dr. A.S. ANAND, J.
Leave is granted in SLP(Crl) No. 3227 of 1991.
Writ Petition No. 1247 of 1991 filed under Article 32 of the Constitution of India is also taken up for disposal along with the aforesaid appeal, which is directed against the judgment of the Division Bench of the Bombay High Court in Criminal Writ Petition No. 597 of 1991, since it is the same order of detention which has been called in question in both the cases.
Both the appeal and the Writ Petition have been filed by the wife of on Harvinder Singh @ Kukku, who has been detained vide order of detention, dated 26th February 1991, issued under the provisions of Section 3(1)n of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 (hereinafter referred to as the `Act ', The appellant had questioned the detention of her husband through Criminal Writ Petition No. 597 of 1991 before the Bombay High Court on carious grounds.
The High Court, however, did not find any merit in the challenge and being of the opinion that there was no infirmity in the order of detention dismissed the Writ Petition.
Appellant has filed an appeal by Special Leave against the High Court judgment and has also questioned the order of detention through a petition under Article 32 of the Constitution.
The facts leading to the detention of the detenu as reflected in the grounds of detention are as follows: 3.
The Police personnel, attached to Matunga Police Station, where maintaining a watch on vehicles passing near the fish market with a view to check transportation of illicit liquor.
On 9th September 1991, a black Fiat Car, bearing registration No. BLD 1674, was seen coming from the direction of Chembur at about 0845 hrs.
The police party signalled the driver to a stop.
Instead of stopping the car, the detenu, who was driving the car, accelerated the car and drove it straight towards the police party that they were likely to be run over and to save themselves they jumped on the foot path.
While so driving the car towards the police party, the detenu also hurled abuses at them and shouted that he would kill them.
The detenu kept driving the car recklessly 239 and then dashed against a pedestrian causing him injury and even at that time instead of stopping the car shouted that whosoever would come in his way would be killed.
The detenu kept on driving the car recklessly and dashed the car against a stationery taxi damaging it.
As a result of the collision the car came to a stop.
As soon as the car stopped, the police party, with a view to apprehend the detenu and the other persons sitting in the car rushed towards them.
The detenu and two other persons sitting inside the car jumped out and escaped.
A police case came to be registered with the Matunga Police Station against the detenu and two unknown persons for offences under Section 307, 324 read with Section 34 of the Indian Penal Code.
The detenu made himself scarce and could not be immediately arrested.
He was eventually traced and arrested on 13th September, 1990, when he made a statement admitting that he was engaged in transporting illicit liquor on 9.9.1990 and also admitted his escape after hitting the pedestrian and the stationery taxi after driving the car towards the police party which signalled to stop him.
The detenu was produced before the Metropolitan Magistrate on 14.9.1990.
and was released on bail on the condition that he should attend the police station between 6.00 to 8.00 p.m. everyday till 24.9.1990.
However, the detenu failed to carry out the condition which led to the cancellation of his bail on 24.9.1990 and he was taken into custody.
The detenu then moved the Sessions Court against cancellation of his bail.
His application was accepted and he was admitted to bail.
The motor car of the detenu,bearing registration No. BLD 1674, was seized by the police and from the dicky of the car, 12 rubber tubes and from the rear seat of the car 13 rubber tubes, each containing about 40 litres of illicit liquor were recovered.
Samples of the seized illicit liquor were sent to the Chemical Analyst whose report, dated 10th of January 1991, indicated that the samples contained ethyl alcohol 34% v/v in water.
During the investigation of the case, the police recorded statements of four witnesses who were, however, willing to make statements only on the condition of anonymity, fearing retaliation from the detenu in case they deposed against him.
Keeping in view the activities of the detenu and the fact that he had been enlarged on bail, the detaining authority on being satisfied that unless an order of detention was made against the detenu, he was likely to indulge in activities prejudicial to the maintenance of `public order ' in future also, made an order of detention on 26th February 1991.
The grounds of detention were served on the detenu.
The order of the detention was confirmed by the State Government after considering the report of the Advisory Board constituted under 240 Section 12(1) of the Act.
The order of detention was questioned before the High Court, as already noticed through Criminal Writ Petition No. 597 of 1991, unsuccessfully.
Two basic arguments have been raised by Dr. Chitale before us to question the order of detention.
The thrust of the first argument is that the activities of the detenu could be said to be prejudicial only to the maintenance of "law and order" and not prejudicial to the maintenance of "public Order".
Learned counsel stressed that the activities, which had been attributed to the detenu, howsoever reprehensible they may be, had no impact on the general members of the community and therefore could not be said to disturb the even tempo of the society and as such his detention for acting in a manner prejudicial to `public order ' was unjustified.
The second argument of the learned counsel is based on the proviso to Section 3(2) of the Act, which according to the learned counsel, prohibited the State Government to make an order of detention, in the first instance exceeding three months and since the order of detention in the instant case was for a period exceeding three months, it was categorised as bad in law and invalid.
No other contention was pressed.
"Public Order" or "Law and Order" are two different and distinct concepts and there is abundance of authority of this Court drawing a clear distinction between the two.
With a view to determining the validity or otherwise of the order of detention, it would be necessary to notice the difference between the two concepts.
In Ram Manohar Lohia vs State of Bihar, ; speaking for the majority, Hidayatullah J. pointed out the distinction in the following words: "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.
In Arun Ghosh vs State of West Bengal, [1970] 1SCC 98 again Hidayatullah J. speaking for the Court, pointed out that what in a given 241 situation may be a matter covered by law and order, on account of its impact on the society may really turn out to be one of `public order '.
It was observed: "Take the case of assault on girls.
A guest at a hotel may kiss or make advances to half a dozen chambermaids.
He may annoy them and also the management but he does not cause disturbance of public order.
He may even have a fracas with the friends of one of the girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places.
As a result of his activities girls going to colleges and schools are in constant danger and fear.
Women going for their ordinary business are afraid of being waylaid and assaulted.
The activity of this man in its essential quality is not different from the act of the other man but in its potentiality and in its effect upon the public tranquility there is a vast difference.
The act of the man who molests the girls in lonely places causes a disturbance in the even tempo of living which is the first requirement of public order.
He disturbs the society and the community.
His act makes all the women apprehensive of their honour and he can be said to be causing disturbance of public order and not merely committing individual actions which may be taken note of by the criminal prosecution agencies.
" [p.100] 9.
A Constitution Bench in Madhu Limaye vs Ved Murti, again dealt with the question and it was observed: "In our judgment, the expression `in the interest of public order ' in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within order publique as described but also certain acts which disturb public transquillity or are breaches of the peace.
It is not necessary to give the expression a narrow meaning because, as has been observed, the expression `in the interest of public order ' is very wide." [p. 756] 10.
In Kanu Biswas vs State of West Bengal, [1972] 3 SCC [p.756] 831, this Court opined: "The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order,. is a question of degree and the extent of the reach of the act upon the society .
Public order is what the French 242 call "ordre publique" and is something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is: Does it lead to disturbance of the current of 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 society undisturbed?" [p. 834] 11.
In Ashok Kumar vs Delhi Administration, this Court re examined the question and observed: "The true distinction between the areas of `public order ' and `law and order ' lies not in the nature of quality of the act, but in the degree and extent of its reach upon society.
The distinction between the two concepts of `law and order ' and `public order ' is a fine one but this does not mean that there can be no overlapping.
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 touch the problem of law and order, while in another it might affect public order.
The act by itself therefore is not determinant of its own gravity.
It is the 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." [pp. 409 10] 12.
In Subhash Bhandari vs District Magistrate, Lucknow, ; , a Division Bench of this Court has held: "A solitary act of omission or commission can be taken into consideration for being subjectively satisfied, by the detaining authority to pass an order of detention if the reach, effect and potentiality of the act is such that it disturbs public tranquility by creating terror and panic in the society or a considerable number of the people in a specified locality where the act is alleged to have been committed.
Thus it is the degree and extent of the reach of the act upon the society which is vital for considering the question whether a man has committed only a breach of law and order or has acted in a manner likely to cause disturbance to public order." [pp. 686 87] 243 13.
It is not necessary to multiply the authorities on this point.
From the law laid by this Court, as noticed above, it follows that it is the degree and extent of the each of the objectionable activity upon the society which is vital for considering the question whether a man has committed only a breach of `law and order ' or has acted in a manner likely to cause disturbance to `public order '.
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 `public order '.
Whenever an order of detention is questioned, the courts apply these tests to find out whether the objectionable activities upon which the order of detention is grounded fall under the classification of being prejudicial to "public order" or belong to the category of being prejudicial only to `law and order '.
An order of detention under the Act would be valid if the activities of a detenu affect `public order ' but would not be so where the same affect only the maintenance of `law and order '.
Facts of each case have, therefore, to be carefully scrutinised to test the validity of an order of detention.
Dr. Chitale did not dispute that if the activities of the detenu have the potential of disturbing the even tempo of the society or community, those activities would be prejudicial to maintenance of `public order ', he however, relied upon certain judgment to urge that "bootlegging" activity of the detenu in the instant case, could not affect public tranquillity and did not have any potential of affecting public order to justify his detention.
Reliance was placed on Om Prakash vs Commissioner of Police & Ors., [1989] Supp.
2 SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321 and Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp. 1 SCC 322 and it was urged that in these cases an activity of "bootlegging" was not held to fall within the mischief of being prejudicial to `public order '.
Indeed, in Piyush Kantilal Mehta, Om Prakash and Rashidmiya cases (supra), the Court found that the activities of the detenu, a bootlegger in those cases, as detailed in the grounds of detention, were of a general and vague nature and those activities did not adversely affect the maintenance of `public order ' under Section 3(4) of the Gujarat Prevention of Anti Social Activities ' Act, 1985.
The Bench in Rashidmiya and Om Prakash 's cases (supra) relied upon the judgment in Piyush Kantilal Mehta 's case and on the facts of those cases quashed the order of detention.
In Piyush Kantilal Mehta 's case (supra), the allegations, in the ground of detention, were that the detenu was a bootlegger, who was indulging in the 244 sale of foreign liquor and that he and his associates were also using force and violence and beating innocent citizens creating a sense of terror.
The detenu was caught possessing English liquor with foreign markings as well as foreign liquor.
The Court found that the detenu was only a bootlegger and he could not be preventively detained under the provisions of the Gujarat Prevention of Anti Social Activities ' Act, 1985 unless as laid down in sub Section (4) of Section 3 of that Act, his activities as a bootlegger had the potential of affecting adversely or were likely to affect adversely, the maintenance of `public order ' and on the peculiar facts of the case, it was found that the alleged activities of the detenu did not affect `public order ' but created only a law and order problem.
Dr. Chitale then placed reliance on State of U.P. vs Hari Shankar Tewari; , ; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad and Anr. ; ; T. Devaki vs Government of Tamil Nadu & Ors., ; ; Ashok Kumar vs Delhi Administration and Ors.
, ; but none of these judgments lay down tests different than the ones which we have culled out from the judgments of this court referred to earlier.
Those cases were decided on their peculiar facts.
The courts were very much alive to the conceptual difference between activities prejudicial to law and order and those prejudicial to public order and since on facts it was found that the activities of the detenu were not prejudicial to `public order ', the orders of detention were quashed.
Crime is a revolt against the whole society and an attack on the civilization of the day.
Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community.
The distinction between breach of `law and order ' and disturbance of `public order ' is one of degree and the extent of reach of the activity in question upon the society.
In their essential quality, the activities which affects `law and order ' and those which disturb `public order ' may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference.
In each case, therefore, the courts have to see the length, magnitude and intensity of questionable activities of a person to find out whether his activities are prejudicial to maintenance of `public order ' or only `law and order '.
There is no gain saying that in the present state of law, a criminal can be punished only when the prosecution is able to lead evidence and prove the case against an accused person beyond a reasonable doubt.
Where the prosecution is unable to lead evidence to prove its case, the case fails, though that failure does not imply that no crime had been committed.
Where the 245 prosecution case fails, because witnesses are reluctant on account of fear of retaliation to come forward to depose against an accused, obviously, the crime would go unpunished and the criminal would be encouraged.
In the ultimate analysis, it is the society which suffers.
Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it.
The objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstances to find out whether those activities have any prejudicial affect on the society as a whole or not.
If the society, and not only an individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of `public order ' and are not merely prejudicial to the maintenance of `law and order '.
The Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 was enacted to provide for preventive detention of slumlords, bootleggers and drug offenders for preventing their dangerous activities prejudicial to the maintenance of `public order '.
Section 2(a) defines the meaning of the expression "acting in any manner prejudicial to the maintenance of public order" and reads as follows: "acting in any manner prejudicial to the maintenance of public order" means (i) in the case of a slumlord, when he is engaged, or is making preparations for engaging, in any of his activities as a slumlord, which affect adversely, or are likely to affect adversely, the maintenance of public order; (ii) in the case of a bootlegger, when he is engaged, or is making preparations for engaging, in any of his activities as a bootlegger, which affect adversely, or are likely to affect adversely, the maintenance of public order; (iii) in the case of drug offender, when he is engaged or is making preparations for engaging, in any of his activities as drug offender, which affect adversely, or are likely to affect adversely, the maintenance of public order; Explanation: For the purpose of this clause (a), public order shall be deemed to have been affected adversely, or shall be deemed 246 likely to be affected adversely, inter alia, if any of the activities of any of the persons referred to in this clause, directly or indirectly, is causing or calculated to cause any harm, danger or alarm of a feeling of insecurity, among the general public or any section thereof or a grave or widespread danger to life or public health;" 20.
The explanation to Section 2(a) (supra) brings into effect a legal fiction as to the adverse affect on `public order '.
It provides that if any of the activities of a person referred to in clause [ (i) (iii) ] of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected.
Thus, it is the fall out of the activity of the "bootlegger" which determines whether `public order ' has been affected within the meaning of this deeming provision or not.
This legislative intent has to be kept in view while dealing with detentions under the Act.
Let us now consider the facts of the instant case.
The substance of the grounds on which detention has been ordered is that the detenu is bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way.
He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where again he had exhorted that anyone who would come in his way would meet his death.
Four witnesses A,B,C,D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him.
The evidence of these witnesses show that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor.
The activities of the detenue, therefore, were not merely "bootlegging" as was the position in Om Prakash, Rashidmiya and Piyush Kantilal Mehta 's cases (supra) but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies.
The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer.
The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation of Section 2(a) of the Act, and it therefore, follows as a logical consequence that the activities of 247 the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of "public order".
The first argument raised by Dr. Chitale against the order of detention, therefore, fails.
Coming now to the second argument of Dr. Chitale to the effect that proviso to Section 3(2) of the Act, prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since the order of detention in the instant case had been made for a period exceeding three months, it was vitiated.
Section 3 reads as follows: "Power to make orders detaining certain persons.
(1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person is detained.
(2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct, that during such period as may be specified in the order such District Magistrate or Commissioner of Police may also, if satisfied as provided in sub section (1), exercise the powers conferred by the said sub section: Provided that the period specified in the order made by the State Government under this sub section shall not, in the first instance, exceed three months but the State Government may, if satisfied as aforesaid that it is necessary so to do, amend such order to extend such period from time to time by any period not exceeding three months at any one time.
(3) When any order is made under this section by an officer mentioned in sub section (2), he shall forthwith report that fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless in the meantime, it has been approved by the State Government." 248 A plain reading of the Section shows that the State Government under Section 3(1), if satisfied, with respect to any person that with a view to preventing him from acting in a manner prejudicial to the maintenance of "public order", it is necessary so to do , make an order of detention against the person concerned.
Sub section (2) of Section 3 deals with the delegation of powers by the State Government and provides that if the State Government is satisfied, having regard to the circumstances prevailing in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, it is necessary to empower District Magistrate or the Commissioner of Police, as the case may be to exercise the powers of the State Government to order detention of a person as provided by sub Section (1), then the State Government may, by an order in writing direct that during such period as may be specified in the order, the District Magistrate or the Commissioner of Police may also if satisfied as provided in sub section (1), exercise the powers of the State Government as conferred by sub Section (1).
The proviso to sub Section (2), only lays down that the period of delegation of powers, specified in the order to be made by the State Government under sub section (2), delegating to the District Magistrate or the Commissioner of Police the powers under sub section (1) shall not in the first instance exceed three months.
The proviso, therefore, has nothing to do with the period of detention of a detenu.
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act.
It is, therefore, futile to contend that the order of detention in the instant case was vitiated because it was for a period of more than three months.
The second argument, therefore, also fails.
We are, in the facts and circumstances of the case, satisfied that the Division Bench of the Bombay High Court rightly dismissed the Criminal Writ Petition No. 597 of 1991 and that order does not call for any interference.
The Appeal fails and is dismissed.
Writ Petition No. 1247 of 1991 also fails and is hereby dismissed since the order of detention does not suffer from any infirmity.
G.N. Appeal/Petition dismissed.

summary/full:
With a view to check transportation of illicit liquor, the Police were maintaining a watch and the speeding car driven by the detenu, husband of the appellant/petitioner was signalled to stop.
Instead,the detenu accelerated the car and drove straight towards the Police party.
They had to jump on to the foot path to save themselves.
The detenu hurled abuses and threatened to kill the Police officers.
He kept on driving the car recklessly, dashed against a pedestrian thereby injuring him.
Ultimately the car collided with a stationary taxi and stopped.
The Police rushed to apprehend the detenu and two others in the car, but they jumped out of the car and escaped.
Police seized the motor car and recovered illicit liquor therefrom.
A police case was registered against the detenu and two other unknown persons for offences under Sections 307,324 read with Section 34 IPC.
The detenu made himself scarce and could not be arrested immediately.
However, after a few days he was arrested and he admitted the incident including his escape.
He was produced before the Magistrate and was released on bail on the condition that he should report to the police daily.
Since the detenu failed to carry out the condition, bail was cancelled and he was taken into custody.
The detenu then moved the Sessions Court against the cancellation of his bail, which was admitted and he was granted bail.
During the investigation of the case, Police could record statements 235 from four witnesses, who deposed only on condition of anonymity as they feared retaliation from the detenu.
The detaining authority on being satisfied that the detenu was likely to indulge in activities prejudicial to the maintenance of "public order" passed an order of detention and the grounds of detention were served on the detenu.
The said order was confirmed by the State Government on the report of the Advisory Board.
The wife of the detenu challenged the detention order before the High Court.
The High Court having dismissed the Writ Petition she has filed the present appeal by special leave, as also a Writ Petition before this Court, challenging the detention order passed against her husband.
On behalf of the appellant/petitioner, it was argued that the activities of the detenu had no impact on the public and therefore could not be said to have disturbed the even tempo of the society and as such his detention for acting in a manner prejudicial to the "public order" was unjustified.
It was further contended that Section 3(2) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders Act, 1981 prohibited the State Government to make an order of detention in the first instance, exceeding three months, and since in the present case the detention order was for more than three months, it was invalid.
Dismissing the matters, this Court, HELD: 1.1.
Crime is a revolt against the whole society and an attack on the civilization of the day.
Order is the basic need of any organised civilized society and any attempt to disturb that order affects the society and the community.
The distinction between breach of `law and order ' and disturbance of 'public order ' is one of degree and the extent of reach of the activity in question upon the society.
In their essential quality, the activities which affect "law and order" and those which disturb "public order" may not be different but in their potentiality and effect upon even tempo of the society and public tranquility there is a vast difference.
In each case, therefore, the courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of "public order" or only "law and order".
[244E G] 1.2 Respect for law has to be maintained in the interest of the society and discouragement of a criminal is one of the ways to maintain it.
The 236 objectionable activities of a detenu have, therefore, to be judged in the totality of the circumstance to find out whether those activities have any prejudicial affect on the society as a whole or not.
If the society.
and not only and individual, suffers on account of the questionable activities of a person, then those activities are prejudicial to the maintenance of "public order" and are not merely prejudicial to the maintenance of "law and order".
An order of detention would be valid if the activities of a detenu affect "public order" but would not be so where the same affect only the maintenance of "law and order".[245B C] Ram Manohar Lohia vs State of Bihar.
; ; Arun Ghosh vs
State of West Bengal, ; Madhu Limaye vs Ved Murti, [1970]3 SCC 738; Kanu Biswas v State of West Bengal, ; ; Ashok Kumar vs Delhi Administration, ; Subhash Bhandari vs District Magistrate, Lucknow; , , relied on.
State of U.P vs Hari Shankar Tewari, [1987] 2SCC 490; Ahmedhussain Shaikhhussain vs Commissioner of Police, Ahmedabad & Anr, [1989]4 SCC 751; T.Devaki vs Government of Tamil Nadu & Ors.
[1990] 2SCC 456; Referred to 2.1 The explanation to Section 2(a) of the Maharashtra Prevention of Dangerous Activities of Slumords, Bootleggers and Drug offenders Act, 1981 brings into effect a legal fiction as to the adverse affect on `public order '.
It provides that if any of the activities of a person referred to in clauses ( (i) (iii) of Section 2(a) directly or indirectly causes or is calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave or a wide spread danger to life or public health, then public order shall be deemed to have been adversely affected.
Thus, it is the fall out of the activity of the `bootlegger ' which determine whether `public order ' has been affected within the meaning of deeming provision or not.
This legislative intent has to be kept in view while dealing with detentions under the act.
[246 B, C] 2.2 In the instant case, the substance of the grounds on which detention has been ordered is that the detenu is a bootlegger and in furtherance of his activities and to escape from the clutches of law, he even tried to run over, by his speeding vehicle, the police party, which tried to signal him to a stop, exhorting all the time that he would kill anyone who would come in his way.
He continued to drive in a reckless speed and dashed against a pedestrian causing injuries to him, where 237 again he had exhorted that anyone who would come in his way would meet his death.
Four witnesses A, B, C, D, who agreed to give statements to the police on conditions of anonymity, clearly stated that they would not depose against the detenu for fear of retaliation as the detenu had threatened to do away with anyone who would depose against him.
The evidence of witnesses shows that the detenu was indulging in transporting of illicit liquor and distributing the same in the locality and was keeping arms with him while transporting liquor.
The activities of the detenu, therefore, were not merely `bootlegging ' but went further to adversely affect the even tempo of the society by creating a feeling of insecurity among those who were likely to depose against him as also the law enforcement agencies.
The fear psychosis created by the detenu in the witnesses was aimed at letting the crime go unpunished which has the potential of the society, and not merely some individual, to suffer.
The activities of the detenu, therefore, squarely fall within the deeming provision enacted in the explanation to Section 2(a) of the Act.
It, therefore, follows that the activities of the detenu were not merely prejudicial to the maintenance of `law and order ' but were prejudicial to the maintenance of `public order '.
[246D H, 247 A] Om Prakash vs Commissioner of Police & Ors., [1989] Supp.
(2) SCC 576; Rashidmiya vs Police Commissioner, Ahmedabad & Anr., [1989] 3 SCC 321; Piyush Kantilal Mehta vs Commissioner of Police, Ahmedabad City and Anr., [1989] Supp.
(1) SCC 322, referred to.
The maximum period of detention is prescribed under Section 13 of the Act which lays down that a person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 12 of the Act.
Therefore, the order of detention in the instant case, though it was for a period of more than three months, is not vitiated since the order is in conformity with the said provisions.
[248D, E]


judgement:
DICTION: Writ Petition NO.
844 OF 1991.
(Under Article 32 of the Constitution of India) WITH S.L.P.NOS. 16475 & 17635 of 1991.
N.S. Hegde, Amrendra Bal and J.R. Das for the Petitioners.
Soresh Roy, Ms. Kirti Mishra and P.N. Mishra for the Respondents.
The Judgment of the Court was delivered by KANIA, CJ.
We have already dismissed the writ petition and special leave petitions by our order dated 5.12.1991.
We would, however, like to make a suggestion to the authorities for their consideration that some preference might be given to in service candidates who have done five years of rural service.
In the first place, it is possible that the facilities for keeping up with the latest medical literature might not be available to such in service candidates and the nature of their work makes it difficult for them to acquire knowledge about very recent medical research which the candidates who have come after freshly passing their graduation examination might have.
Moreover, it might act as an incentive to doctors who had done their graduation to do rural service for some time.
Keeping in mind the fact that the rural areas had suffered grievously for non availability of qualified doctors giving such incentive would be quite in order.
Learned counsel for the respondents has, however, drawn out attention to the decision of a Division Bench of two learned judges of this Court in Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., [1986] 3 SCC page 727 at 740.
It has been observed there that merely by offering a weightage of 15 per cent to a doctor for three years rural service would not bring about a migration of doctors from the urban to rural areas.
They observed that it you want to produce doctors who are MD or MS, particularly surgeons, who are going to operate upon human beings, it is of utmost importance that the selection should be based on merit.
Learned Judges have gone on to observe that no weightage should be given to a candidate for rural service rendered by him so far as admissions to post graduate courses are concerned (see para 12 at pate 741).
In our opinion, this observation certainly does not constitute the ratio of the decision.
The decision is in no way dependent upon these 337 observations.
Moreover, those observations are in connection with All India Selection and do not have equal force when applied to selection from a single State.
These observations, however, suggest that the weightage to be given must be the bare minimum required to meet the situation.
In these circumstances, we are of the view that the authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in service candidates who have done rural service for five years or more.
The actual percentage would certainly have to be left to the authorities.
We also clarify that these suggestions do not in any way confer any legal right on in service students who have done rural service nor do the suggestions have any application to the selection of the students upto the end of this year.

dataset_name: IN-Abs

summary/full:
The writ petition and the SLPs were dismissed by this Court 's order dated 5.12.1991.
Taking judicial notice of the fact that the rural areas had suffered for non availability of qualified doctors, this Court suggested that some preference might have to be given to in service candidates who have done five years of rural service.
HELD: 1.01.
The authorities might well consider giving weightage upto a maximum of 5 per cent of marks in favour of in service candidates who have done rural service for five years or more.
The actual percentage would certainly have to be left to the authorities.
[327 B] 1.02.
This might act as an incentive to doctors who had done their graduation to do rural service for some time.
[326 E] 1.03.
The observation in Dr. Dinesh Kumar and Others vs Motilal Nehru Medical College, Allahabad and others, [1986] 3 SCC page 727 at 740 to the effect that no weightage should be given to the candidate for rural service rendered by him so far as admissions to post graduate courses are concerned is not the ratio of the judgment but a mere observation.
[336 H 337 A] 1.04.
The suggestions do not in any way confer any legal right on in service students who have done rural service nor do they have any application to the selection of the students upto the end of the year.
[337 B] Dr Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., ; at page 740, distinguished.


judgement:
ivil Appeal No. 3087 of 1991.
From the Judgment and Order dated 23.11.
1990 of the Delhi High Court in F.A.O. (O.S.) 123 of 1989.
Kapil Sibal, D.D. Thakur, Ms. Lira Goswamy, A.K. Mahajan, A.S. Chandhoik, Ms. Meera Chibar and Dinesh Agnani for the appearing parties.
414 The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
We grant special leave and proceed to dispose of the appeal.
The General Electric Technical Services Company (`GET SCO ') had entered into a contract with Indian Airlines which included, inter alia, the construction and fabrication of air craft testing centre/engine repair centre in Delhi.
The GETSCO in turn entered into a contract with M/s Punj Sons (P) Ltd. respondent 1 for getting that work done for Indian Airlines.
As per the contract respondent I was required to provide performance bond equal to 30 per cent of the total value of contract price which was to be split up into two performance bonds partly to be released on completion of the project, and the balance upon the expiration of the warran ty.
The respondent I was also required to furnish a bank guarantee to secure the mobilisation advance of 25 per cent of the contract value.
On 28 October, 1986 respondent 1 furnished the bank guarantee to secure the mobilisation advance of Rs. 1,86,00,000.
The guarantee was furnished by Hongkong & Shanghai Bank ( 'the Bank ') respondent 2.
Respondent I instead of furnishing the two performance bonds, as agreed upon, wrote a letter dated 3 September, 1987, as follows: ". .
Sub: Jet Engine Test & Repair Centre at Palam Finance September 3, 1987 Dear Sir, In terms of above contract we have to submit two separate Bonds for Mobilisation advance & performance guarantee & 25% and 30% of the Contract value.
Bank Guarantee for mobilisation advance has already been submit ted and we have not to submit the Performance Bonds for 30% of the Contract value.
Since the amount of Performance Bond shall be progres sively utilised over the contract period, in order to reduce Bank charges and marginal money, we would like to suggest alternative proposals to meet with your requirements: 415 AA.
We propose to submit performance guaran tees for 30% of the contract value duly signed by two directors in their personal capacity and countersigned by Punj Sons (Pvt) Ltd. This Performance bond shall include identical terms & conditions, as desired in your format.
Similar Bond has already been accepted by M/s Hindustan Petroleum Corporation Ltd. Bombay for their Bombay Pune Pipeline Project valued at Rs.7.05 crores.
Alternatively, we would suggest submission of a Composite Bank gurantee where amount vacated by Mobilisation advance shall be utilised by Performance Bank Guarantee amount.
This Guarantee shall at any time be valid for equivalent to 30% of the contract value, to cover unrecovered mobilisation advance and Performance Guarantee amount of the work certified.
We have submitted similar Bonds to a number of our customers to their entire satis faction.
May we request you to look into the above arrangement and allow us to submit the above Bond or Composite Bank Guarantee under this Contract.
Thanking you and assuring you of our best services at all times. " GETSCO has accepted the revised proposal contained in the aforesaid letter.
Consequently, on 25 January 1988, the Bank furnished a composite bank guarantee for Rs.2, 12,25,000.
Out of this composite bank guarantee 15 per cent being Rs. 1,06,12,500 would remain in force until 30 June, 1988 and the balance 15 per cent would remain valid till final acceptance certificate i.e. till 30 June 1989.
It seems respondent 1 failed to complete the project within the stipulated time as per contractual specifications despite repeated opportunities to rectify defects and defi ciencies prior to August 1988 and thereafter.
GETSCO termi nated respondent 1 's right to continue the project and wrote a letter dated 17 April 1989 to the Bank seeking encashment of the bank guarantee dated 25 January 1988 for Rs. 1,06, 12,500.
On the same day the bank issued a cashier 's order No. 2605 for Rs. 1,06, 12,500 in favour of GETSCO.
On 18 April 1989 the respondent 1 filed a suit for injunction against GETSCO and the Bank in the High Court and obtained an ex parte injunction at the residence 416 of learned Single Judge restraining the Bank and GETSCO from encashing the bank guarantee.
On 11 July 1989 the ex parte injunction was vacated.
On the same day respondent 1 preferred an appeal to the Division Bench of the High Court and obtained stay of encashment of he bank guarantee.
On 23 November 1990, the Division Bench allowed the appeal, set aside the order of learned Single Judge and stayed the encashment of the bank guarantee till the disposal of the respondent 's suit.
It seems to us that the Division Bench of the High Court has misconstrued the terms of the bank guarantee and the rights and liabilities of the parties thereunder.
The first bank guarantee dated 28 October, 1986 is in these terms: "1.
In consideration of General Electric Technical Services co. Inc. Cincinnati, Ohio, U.S.A. C/o M/s P.L. Jaitly & co. IE/12, Jhandewalan Extension, New Delhi (hereinafter called the owner) having agreed to grant mobilisation advance of Rs.18,600,000 [Rs. Eighteen million six hundred thousand only] to M/s Punj Sons Pvt. Ltd., Industrial Area, Kalkaji, New Delhi 110019 (hereinafter called Contractor) under the terms and conditions of Tender No. HB 040 I made by and between, owner and Contractor for Indian Airlines Jet Engine Repair and Test Facilities Phase II Construc tion being undertaken at the Indira Gandhi International Airport, New Delhi (here in called the Agreement) on the production of Bank Guarantee for Rs.18,600,000 [Rupees eighteen million six hundred thousand only] we, Hongkong & Shanghai Banking Corporation, 28 Kasturba Gandhi Marg, New Delhi 110001 (hereinafter called Bank) do hereby undertake to pay to the Owner an amount not exceeding Rs. 18,600,000 [Rs. eighteen million six hundred thousand only], against any loss or damage caused to or suffered or would be caused to or suffered by the owner by reason of any breach by the Contractor of the terms and conditions contained in the Agreement.
We, the Bank do hereby undertake to pay the amount due and payable under this Guarantee with demur, merely on demand from the owner stating that the amount claimed is due by way of loss or damage caused to or would be caused to or suffered by the owner by reason of any breach 417 by the Contractor of any of the terms or conditions contained in the Agreement or by reason of the Contractor 's failure to perform the Agreement.
Any such demand made on the Bank shall be conclusive, as regards the amount due and payable by the Bank under this Guarantee.
However, our liability under this Guarantee shall be restricted to an amount not exceeding Rs.18,600,000 [Rupees eighteen million six hundred thousand only].
We, the Bank further agree that the Guaran tee herein contained shall remain in force and effect during the period that would be taken for the performance of the Agreement and that it shall continue to be enforceable till all the due of the owner under or by virtue of the Agreement have been fully paid and its claims satisfied or discharged or till the owner certifies that the terms and conditions of the Agreement have been tully and properly carried out by the Contractor and accordingly dis charges the Guarantee.
Unless a demand or claim under this Guarantee is made on us in writing on or before the date (named in the Agreement as the end of the warrant/mainte nance period) we shall be discharged from all liability under this Guarantee thereafter.
We, the Bank further agree with the Owner that the owner shall have the fullest liberty without our consent and without affecting in any manner our obligations hereunder to vary any of the terms and conditions of the Agree ment or to extend time of performance by the Contractor from time to time or to postpone for any time or from time to time any of the powers exercisable by the owner against the Contractor and to forbear or enforce any of the terms and conditions relating to the Agreement and we shall not be relieved from our liability by reason of any such variation, or extension being granted by the owner or any indulgence by the owner to the Contractor or by any such matter or thing whatsoever which under the law relating to sureties would but for this provision have effect of so relieving us.
We, the Bank lastly undertake not to revoke this Guarantee during its currency except with the previous consent of the owner in writing.
418 Notwithstanding anything stated above, our liability under this Guarantee is restricted to a sum of Rs. 18,600,000 [Rs. eighteen million six hundred thousand only].
Our Guar antee shall remain in force until the (date named in the Agreement as the end of the warrant/maintenance period).
Unless a demand is lodged with us on or before that date 13 day of February 1988, all your rights under the said guarantee shall be forfeited and we shall be relieved and discharged from all liabilities thereafter.
" The relevant terms of the second composite bank guarantee dated 25 January 1988 are as follows: "Bank Guarantee No. 86 NDH 918 dt.
28.10.1986 for Rs. 1,86,00,000 favouring M/s General Electric & Technical Services Co. Inc. Under the instructions from our clients M/s Punj Sons (Pvt) Ltd. M 13, Connaught Place, New Delhi 110001, we hereby enhance the value of the above Bank Guarantee upto Rs.21,225,000 [Rupees twenty one million two hundred twenty five thousand only] being 30% of the revised Lumpsum Contract value of Rs.70,750,000 [Rupees seventy million seven hundred fifty thousand only].
This Bank Guarantee shall act 'Composite Bank Guarantee ' for Mobilisation Advance and Performance Bond where in Bank Guarantee, to the extent of amounts of Mobilisation Advance so recovered, shall be utilised towards Two Performance Bonds of 15% of the Contract value each valid upto 30th June, 1988 and 30th June, 1989, respectively.
All the other terms and conditions of the original Guarantee will remain unchanged.
We, the Hongkong & Shanghai Banking Corpora tion, 28, Kastruba Gandhi Marg, New Delhi 110001, hereby undertakes not to revoke the Guarantee during the currency except with the previous consent of the General Electric 419 and Technical Services Company Inc. Notwithstanding, anything contained herein before our liability under this Guarantee is restricted to Rs.21,225,000 [Rupees Twenty One Million Two Hundred Twenty five thousand only] and the recovery of Mobilisation advance from Running Bills Account will be in accordance with the contract, the Guarantee against such amounts of Mobilisation Advance as so recov ered shall be treated towards performance Guarantee with the intent that after recovery of Mobilisation Advance in full, the Guarantee shall operate against the full value of Per formance Bond.
Out of the said guarantee amount, the Bank Guarantee amount of Rs.10,612,500 [Rupees ten million six hundred twelve thousand & five hundred only] being the 15% of lumpsum value of the contract shall remain in force till the completion of the Project i.e. upto 30th June 1988 and the Bank Guarantee for the balance amount i.e. Rs.10,612,500 [Rupees ten million six hundred twelve thousand five hundred only] being 15% amount shall remain in force till final ac ceptance certificate till 30th June, 1989.
NOTWITHSTANDING anything contained hereinbe fore our liability under this Guarantee will be restricted to Rs.21,225,000 [Rupees twenty one million two hundred twenty five thousands only] until 30th June 1988 and will automati cally stand reduced from Rs.21,225,000 to Rs.10,612,500 (Rupees ten million six hundred twelve thousand and five hundred only) on 30th June, 1988 without further reference to you.
Our liability will continue only to the extent of the balance amount of Rs.10,612,500 [Rupees ten million six hundred twelve thousand and five hundred only] after 30th June, 1988 and will be conditional upon a claim being filed with us in writing on or before 30th June 1989.
Thereafter our liability under this guarantee shall stand extinguished and we shall be relieved and discharged from all liabilities thereunder.
" The second bank guarantee with which we are concerned makes a reference to the first guarantee.
It states that the guarantee is a composite bank guarantee for mobilisation of advance and performance bond.
It further states that all the other terms and conditions of 420 the original Guarantee will remain unchanged.
The liability of the Bank shall automatically reduce from Rs.2,12,25,000 to Rs. 1,06, 12,500 on 30 June 1988, which will continue even after 30 June, 1988 and will be condi tional upon a claim being filed with the Bank in writing on or before 30 June 1989.
In the first guarantee, the Bank has undertaken to pay to GETSCO the amount guaranteed without any demur merely on demand stating that the amount is due by way of loss or damage caused to or would be caused to or suffered by GETSCO by reason of any breach committed by the respondent on any of the terms or conditions contained in the agreement or by reason of respondent 's failure to per form the agreement.
It is also provided that any such demand by GETSCO made on the Bank shall be conclusive as regards the amount due and payable by the Bank under the guarantee.
The GETSCO has only sought to enforce the bank guarantee for the balance amount of Rs. 1,06, 12,500 on a complaint that respondent 1, has failed to perform the contract as per the terms and conditions.
The Bank has undertaken to pay this sum of money and it is a commitment of the Bank.
The Bank must honour its commitment when demand is made.
Indeed, the Bank was prepared to pay and has in fact issued the Cash ier 's order as per demand from GETSCO, but the Court has directed the Bank not to pay under the guarantee.
The question is whether the Court was justified in restraining the Bank from paying to GETSCO under the bank guarantee at the instance of respondent 1.
The law as to the contractual obligations under the bank guarantee has been well settled in a catenae of cases.
Almost all such cases have been considered in a recent judgment of this Court in U.P. Cooperative Federation Ltd. vs Singh Consultants and Engineers (P) Ltd., wherein Sabyasachi Mukherji, J., as he then was, observed (at 189) 'that in order to restrain the operation either of irrevocable letter of credit or of confirmed letter of credit or of bank guar antee, there should be serious dispute and there should be good prima facie case of fraud and special equities in the form of preventing irretrievable injustice between the parties.
Otherwise, the very purpose of bank guarantees would be negatived and the fabric of trading operations will get jeopardised '.
It was further observed that the Bank must honour the bank guarantee free from interference by the Courts.
Otherwise, trust in commerce internal and interna tional would be irreparably damaged.
It is only in excep tional cases that is to say in case of fraud or in case of irretrievable injustice, the Court should interfere.
In the concurring opinion one of us (K. Jagannatha Shetty, J.) has observed that whether it is a 421 traditional bond or performance guarantee, the obligation of the Bank appears to be the same.
If the documentary credits are irrevocable and independent, the Bank must pay when demand is made.
Since the Bank pledges its own credit in volving its reputation, it has no defence except in the case of fraud.
The Bank 's obligations of course should not be extended to protest the unscrupulous party, that is, the party who is responsible for the fraud.
But the banker must be sure of his ground before declining to pay.
The nature of the fraud that the courts talk about is fraud of an "egre gious nature as to vitiate the entire underlying transac tion".
It is fraud of the beneficiary, not the fraud of somebody else.
The High Court has observed that failure on the part of GETSCO to make a reference to mobilisation advance in the letter seeking encashment of the bank guarantee would be tantamount to suppression of material facts, in the sense that the mobilisation advance was, under the contract to be recovered from the running bills.
It was further observed that disclosure of such facts would have put the bank to further inquiry as to what was the amount covered by those bills and what was the corresponding amount of the mobilisa tion advance and to what extent the amount covered by the bank guarantee remained payable.
In any event, the High Court said, that GETSCO could not demand full amount of the bank guarantee on 17 April 1989.
It seems to us that the High Court has misconstrued the terms of the bank guarantee and the nature of the inter se rights of the parties under the contract.
The mobilisation advance is required to be recovered by GETSCO from the running bills submitted by the respondent.
If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent.
Secondly, the Bank is not concerned with the outstanding amount payable by GETSCO under the running bills.
The right to recover the amount under the running bills has no rele vance to the liability of the Bank under the guarantee.
The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non payment under the running bills.
The failure on the part of GETSCO to specify the remaining mobilisation advance in the letter for encashment of bank guarantee is of little consequence to the liability of the Bank under the guarantee.
The demand by GETSCO is under the Bank guarantee and as per the terms thereof.
The Bank has to pay and the Bank was willing to pay as per the undertaking.
The Bank cannot be interdicted by the Court at the instance of respondent 1 in the absence of fraud or special equities in the form of preventing irre trievable injustice between the parties.
422 The High Court in the absence of prima facie case on such matters has committed an error in restraining the Bank from honouring its commitment under the bank guarantee.
In the result, we allow the appeal, set aside the im pugned judgment and order of the High Court.
The appellant is entitled to costs in this Court.
S.L.P. (Civil) No. of 1991 (In CC 13 153/91) Since we have set aside the order of the Division Bench of the High Court this Special Leave Petition does not survive and is accordingly dismissed.
No costs.
V.P.R. Appeal allowed.

summary/full:
The appellant 's contract with Indian Airlines included the construction and fabrication of air craft testing cen tre/engine repair centre in Delhi.
For getting that work done, the appellant entered into a contract with the re spondent 1.
As per the contract, respondent 1 was required to provide performance bond equal to 30 per cent of the total value of contract price, which was to be split up into two performance bonds partly to be released on completion of the project, and the balance upon the expiration of the warran ty, and to furnish a Bank guarantee to secure the mobilisa tion advance of 25 per cent of contract value.
Respondent II, instead of furnishing the two perform ance bonds, wrote a letter for a revised proposal, which was accepted by the appellant.
As the respondent 1 failed to complete the project within the stipulated time, as per contractual specifica tions, despite repeated opportunities, the appellant termi nated respondent 1 's right to continue the project and sought for encashment of the Bank guarantee for Rs. 1,06,12,500, which was issued to the appellant by the Bank.
The respondent I filed a suit for injunction against the appellant and the Bank in the High Court and obtained an ex parte injunction from the Single Judge, restraining the Bank and the appellant from encashing the Bank guarantee.
When the ex parte injunction was vacated, respondent I preferred an appeal to the Division Bench of the High Court.
The Division 413 Bench allowed the appeal, staying the encashment Of the Bank guarantee till the disposal of the respondent 's suit.
On the question, whether the Court was justified in restraining the Bank from paying the appellant under the Bank guarantee at the instance of respondent I, allowing the appeal of the appellant company, this Court, HELD: 1.
In the instant case, the High Court has miscon strued the terms of the Bank guarantee and the nature of the inter rights of the parties under the contract.
The mobili sation advance is required to be recovered by the appellant from the running bills submitted by the respondent.
If the full mobilisation advance has not been recovered, it would be to the advantage of the respondent.
Secondly, the Bank is not concerned with the outstanding amount payable by the appellant under the running bills.
The right to recover the amount under the running bills has no relevance to the liability of the Bank under the guarantee.
The liability of the Bank remained intact irrespective of the recovery of mobilisation advance or the non payment under the running bills.
The failure on the part of the appellant to specify the remaining mobilisation advance in the letter for encash ment of Bank guarantee is of little consequence to the liability of the Bank under the guarantee.
The demand by the appellant is under the Bank guarantee and as per the terms thereof.
The Bank has to pay and the Bank was willing to pay as per the undertaking.
The Bank cannot be interdicted by the Court at the instance of respondent I in the absence of fraud or special equities in the form of preventing irre trievable injustice between the parties.
The High Court in the absence of prima facie case on such matters has commit ted an error in restraining the Bank from honouring its commitment under the bank guarantee.
[421E 422A] U.P. Cooperative Federation Ltd. vs Singh Consultants and Engineers (P) Ltd., , Followed.