Mohmad Ayub @ Babbu Sagirbhai … vs Commissioner Of Police And Ors. on 28 July, 1993

JUDGMENT

S. Nainar Sundaram, C.J.

1. The question that stands referred to us, as a Full Bench, for our consideration and answer, runs as follows:

Whether the cases for the offences punishable under Chapters XVI and XVII of the I.P.C. and Chapter V of the Arms Act, 1959, pending investigation can be taken into consideration for arriving at the subjective satisfaction as to whether a person is a ‘dangerous person’ within the meaning of Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985?

The need for the reference arose, because, B.S. Kapadia and N.J. Pandya, JJ., who have made the reference, found themselves not in a position to agree with the view of the Bench of C.V. Jani and (one of us), S.D. Dave, JJ., in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Anr. 1992 (2) XXXIII (2) GLR 1360, wherein it was opined:

…it shall have to be accepted that the detaining authority could not have utilised the registration of the abovesaid 4 Criminal Cases against the petitioner-detenu, because at the relevant time they were all under investigation.

The Bench, in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Anr. 1992 (2) XXXIII (2) GLR 1360, followed the pronouncement of the Apex Court in Abdul Razak Nannekhan Pathdn v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC). The relevant passage occurring therein and followed by the Bench in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Anr. 1992 (2) XXXIII (2) GLR 1360, runs as follows:

…Merely on consideration of the other three criminal cases, which are under investigation and are yet to be decided the detaining authority cannot come to this subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Section 2(c) of PASA Act.

If the passage in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC) is a ratio decidendi of law in the pronouncement, then, this Court, in the absence of any other binding pronouncement of the Apex Court, will have to follow it. The ratio decidendi must be of law, for, even a finding of fact in this sense would be the ratio decidendi. The facts of ratio decidendi have been summarised by Dias on Jurisprudence, Fourth Edition, in the following terms:

…What is “law” in a precedent is its ruling or ratio decidendi and this concerns future litigants as well as those involved in the immediate dispute. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression “ratio decidendi”. The first, which is the translation of it, is “the reason for (or of) deciding”. Even a finding of fact may in this sense be the ratio decidendi. Thus, a Judge may state a rule and then decide that the facts do not fall within it. Secondly, it may mean “the rule of law proffered by the Judge as the basis of his decision”, or, thirdly, it may mean “the rule of law which others regard as being of binding authority.

Salmond on Jurisprudence, Twelfth Edition, spoke as to how far a ratio decidendi in a pronouncement is conclusive as follows:

…As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or proposition, the ratio decidendi, may be described roughly as the rule of law applied by and acted on by the Court, or the rule which the Court regarded as governing the case….

The eminent author recapitulated the tests, one of Professor Wambaugh and another of Dr. Goodhart. The test promulgated by Professor Wambaugh, as per extract found in the above Edition, runs as follows:

…The ‘reversal’ test of Professor Wambaugh suggested that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision. If so, then the proposition is the ratio or part of it; of the reversal would have made no difference, it is not In other words the ratio is a general rule without which the case would have been decided otherwise….

The test suggested by Dr. Goodhart, in the same Edition, has been extracted in the following terms:

…Another test is that suggested by Dr. Goodhart. According to this the ratio is to be determined by ascertaining the facts treated as material by the Judge together with his decision on those facts. This test directs us away from what Judges say towards what in fact they do, and indeed it is the only way of deriving a ratio in cases where no judgment is given. Where a judgment is given, however, it is from this that we must discover which facts the Judge deemed material and which not….

The eminent author Salmond noticed a shortcoming in the test formulated by Dr. Goodhart as follows:

…The only shortcoming of Goodhart’s test is that while it provides a very useful method of ascertaining the ratio decidendi of a ease, this does not appear to be quite the same method as that in current use in practice. For in practice the Courts seem to pay more attention to the Judge’s own formulation of the rule of law than Dr. Goodhart’s test would allow; the Courts look at this, it seems, not just to discover the material facts but to discover the rule which the Judge thought himself to be applying. On the other hand it is true that any such rule must be evaluated in the light of the facts considered by the Court to be material….

The same test of Professor Wambaugh has been recapitulated by Rupert Cross in “Precedent in English Law as follows:

…First frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the Court had conceived this new proposition to Be good and had it in mind, the decision would have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, if the answer be negative, the case is authority for the original proposition and possibly for other propositions also. In short, when a case turns only on one point, the proposition or doctrine of the case, the reason of the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise.

It was then observed that “a proposition of law which is not ratio decidendi under the above test must, according to Wambaugh, constitute a mere dictum”.

In Halsbury’s Laws of England, Fourth Edition, while dealing with ratio decidendi and its binding nature, the terse observations run as:

…The enunciation of the reason or principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives-rise to the decision….

2. How to deduce a ratio decidendi of law from its pronouncements, so as to form a binding precedent, as law declared by the Apex Court within the meaning of Article 141 has found guidance in the very pronouncements of the Apex Court themselves.

3. In State of Orissa v. Sudhansu Sekhar Misra and Ors. AIR 1968 SC 647, five learned Judges of the Apex Court spoke as follows:

…A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and note very observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury LC said in Quinn v. Leathern 1901 AC 495:

Now before discussing the case of Alien y. flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such aumode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

It is not a profitable task to extract a sentence here and there from a judgment and to build upon it.

In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadw and Ors. v. Union of India AIR 1971 SC 530, a case, decided by eleven Judges, the Apex Court took note of the fact that the Court was not called upon to decide a particular question as of law, and observed as follows:

…It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment.

In Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1087, three Judges of the Apex Court opined that distortion of the passage in a judgment could not pass muster, and approved the following observations of the High Court of Kerala in State of Kerala v. Parameswaran Pilial Vasudevan Nair 1975 FAC 8 : 1975 Cri.LJ 97:

Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab 1972 FAC 549 and Prakesh Chandra Palhak v. State of Uttar Pradesh AIR 1960 SC 195 that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other eases.

In Additional District Magistrate, Jabalpur v. Shivakant Shukia AIR 1976 SC 1207, a case decided by five Judges, it was cautioned as follows:

…Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit….

4. Even observations on law, though not part of the ratio decidendi of law in the pronouncement, classified as obiter dicta emanating from the Apex Court, are binding on this Court and this Court cannot ignore them. An obiter dictum is an observation by the Court on a legal question, not factual, suggested by a case before it, but not arising in such manner as to require a decision. In the Commissioner of Income-Tax, Hyderabad, Deccan v. Vazir Sultan & Sons AIR 1959 SC 814, it was stated:

…The obiter dicta of this Court, however, are entitledto considerable weight and we on our part fully endorse the Same….

In Income-Tax Officer, Tuticorin v. T.S. Devinatha Nadar AIR 1968 SC 623, even an opinion of the Apex Court was held to merit the highest respect.

5. In Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1087, as already noted, the Apex Court approved the view of the Kerala High Court that “judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country, even obiter dictum of the Supreme Court should be accepted as binding Declaration of law by that Court even if it be only by the way has to be respected”.

6. Either way, as ratio decidendi or obiter dictum, it has got to be a proposition of law. But, if what has been expressed is only a discussion of factual aspects of the case and a pronouncement on the same, then, that cannot be cited as a precedent to govern decisions in other cases. In Prakash Chandra Pathak v. State of Uttar Pradesh AIR 1960 SC 195, this is how the proposition was set down:

…It is enough to say that decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts….

As to what should be the right approach to the decisions of the Apex Court, the said Court, as already noticed, in Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1087, approved as correct the view of the High Court of Kerala that statements on matters other than law have no binding force; several decisions of the Supreme Court are on facts; as on facts no two cases could be similar, its own decisions which were essentially on questions of fact cannot be relied upon as precedents for decision of other cases. It has always been accepted by Courts as a well-settled theory that there are three ingredients in a decision as follows:

(i) Findings of material facts, direct and inferential;

(ii) Statement of the principles of law applicable to the legal problems disclosed by such facts;

and

(iii) Judgment based on (i) and (ii).

In Qualcast (Wolverhampton) Ltd. v. Haynes 1959 Appeal Cases 743, a solution on facts was not treated as a proposition of law. The ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based.

7. Thus, the question that relevantly arises for consideration is as to whether the passage found in the pronouncement of the Apex Court in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990(2) GLH 137 (SC) is a proposition of law or a ratio decidendi in law, or, in other words, a ratio decidendi in law settled by that Court so as to have a binding effect on this Court by force of Article 141 of the Constitution of India to govern decisions in other cases. Hence, it will be in order to discharge the duty, onerous indeed, to examine as to whether the statement in Abdul Razak Nanneknan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990(2) GLH 137 (SC), could have the character of ratio decidendi on law or a discussion of facts and a pronouncement thereon. The Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “the Act”) is in the language of its preamble:

An Act to provide for preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers preventing their anti-social dangerous activities prejudicial to the maintenance of public order.

In Abdul Razak Namiekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990(2) GLH 137 (SC), the order of detention was also made under the Act. The grounds of attack on the order of detention were that : (i) the grounds are not germane and relevant; and (ii) there has been non-application of mind by the Detaining Authority for making the order. In the grounds, there was a reference to 7 Criminal Cases and it was stated:

…Thus, on scrutiny of the complaints, proposals and other papers therewith, it appears that you are committing offences affecting human body in the said area by holding deadly weapons such as knife, razor, tamancha, sword, hockey stick, iron pipes, etc. Therefore, you are a dangerous person as defined in Section 2(c) of the said Act….

The grounds further referred to the statements of four persons residing in the area recorded by the Police and allegations of various anti-social activities of the detenu. The table of 7 Criminal Cases, as set forth in the pronouncement, is extracted as follows:

——————————————————————————————

S.               Police Stn.             Crime       Section                 Results
No.                                      R. No.
------------------------------------------------------------------------------------------
1.               Kagdapith             96 of 1985   324, 504, 114, IPC,       Compounded.
                                                    135(1) B.P. Act
2.               Memnagar             120 of 1986   Sections 336, 337, 427,   Compounded.
                                                    114, IPC.
3.               Kagdapith            225 of 1987   Section 135(1) B.P. Act   Conviction.
4.               Maninagar            122 of 1986   Sections 307/451, 147,    Not proved.
                                                    148, 149, 436, 440, 
                                                    120B, IPC, 258 Arms 
                                                    Act, 3, 4 Explosive
5.               Maninagar             33 of 1988   Sections 324, 504, 114,   Under 
                                                    IPC, 135(1) B.P. Act      Investigation.
6.               Kagdapith             51 of 1988   307, 232, 114, IPC        Under
                                                    135(1) B.P. Act           Investigation.
7.               Kagdapith             81 of 1988   326, 114 IPC,             Under
                                                    135(1) B.P. Act           Investigation.
---------------------------------------------------------------------------------------------
 

The discussion of the materials, as we find them, are found in the following passages in paragraphs 7, 8, 9, 10 (Part) and 13 (Part):
  

As regards the seven criminal cases, the detenu has been acquitted of the charges in the first two cases that is, Kagdapith Case No.96 of 1985 and Maninagar Case No. 120 of 1986 which have been compounded. In the third case under Section 135 of the Bombay Police Act, that is, Kagdapith Case No. 225 of 1987, the detenu has been convicted. But it has no relevance for the purpose of forming an opinion that the petitioner is a dangerous person under Section 2(c) of PASA Act. As regards the Case No. 4. that is Criminal Case No. 122 of 1986, the petitioner has been acquitted. The other three criminal cases that is Maninagar Case No. 33 of 1988, Kagdapith Case No. 51 of 1988 and Kagdapith Case No. 81 of 1988 are all under investigation and in these cases the petitioner has been enlarged on bail. It has also been stated that the grounds of detention supplied to the petitioner are vague and indefinite and as such the detenu could not make an effective and proper representation, under Article 22(5) of the Constitution. It has further been stated that out of the aforesaid seven criminal cases, the first two criminal cases are not proximate to the date of making the impugned order of detention. There is absolute non-application of mind by the detaining authority in coming to this subjective satisfaction that the impugned order was necessary to be made to prevent the detenu from acting in any manner prejudicial to the maintenance of public order.

The respondent No. 1 filed an affidavit-in-reply stating inter alia that the petitioner-detenu is indulging in criminal activities prejudicial to the maintenance of the public order and as such the order of detention was made against the detenue after considering that recourse to actions under the provisions of ordinary law will not be adequate. It has been further denied in paragraph (1) of the said affidavit the statement that no effective representation could be made due to non-supply of the names and addresses of the so-called witnesses and other relevant materials as made in the petition. It has also been stated that on the basis of the apprehension expressed by those four witnesses whose statements have been recorded by the Police Inspector and verified by the Superintendent of Police that their names and addresses have not been disclosed by the detaining authority claiming the privilege available under Section 9(2) of the Gujarat Prevention of Anti-Social Activities Act. 1985. It has also been stated that the detaining authority has been subjectively satisfied that the petitioner is indulging in nefarious activities prejudicial to the maintenance of public order and as such the impugned order of detention was made by him against the detenu. It has also been stated that in Criminal Case No. 225 of 1987, the detenu was found with razor and he was convicted in that particular case. It has also been stated that from the cases registered against the detenu from 1985 to 1908 that the detenu is involved in prejudicial activities from 1985 to 1988 and as such it was inferred that the passing of detention order was the only remedy to restrain the petitioner from indulging in similar prejudicial activities.

It is evident from the grounds of detention that the impugned order of detention was made on the ground that the petitioner is a dangerous and terrible person in the area as defined in Section 2(c) of the PASA Act. The said section states:

Dangerous person” means a person, who either by himself or as a member or leader of a gang, during a period of three successive years habitually commit or attempts to commit or abets the commission of any of the offences punishable under Chaprer XVI or Chapter XVII of the Indian Penal Code (XLV of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959).

In the grounds it has been stated that the detenu by creating atmosphere of danger and terror has become hurdle in the way of maintenance of law and order in the said area. It has also been stated that for such acts as well as due to the following criminal offences under the Indian Penal Code registered against him, the detenu has become a dangerous person of the area. It has also been stated that the detenue has been robbing persons who pass from there for business or service by showing deadly weapons. It has also been stated, “In the said area in drunken condition you are demanding money from those passing from there. If they do not give money you are threatening them of murder by showing razor or Rampuri knife. You are beating peace-loving citizens in the said area in public believing that they are giving information of your criminal activities to the Police. By this you are coming in the way of maintenance of public order.”

It has already been stated hereinbefore that offences under Chapter XVI of Indian Penal Code have been compounded and the detenu has been acquitted. As regards the third case, that is, Kagdapith Case No. 225 of 1987 under Section 135 of Bombay Police Act, the petitioner was convicted. This offence is not one of the offences falling within the offences mentioned in Section 2(c) of the PASA Act and as such this case cannot be taken into consideration to hold the detenu a dangerous person. As regards the fourth case-Maninagar Case No. 122 of 1986-being not proved against the petitioner he has been acquitted of the offences charged in the said case The other three remaining cases, that is, Maninagar Case No. 33 of 1988, Kagdapith Case No 15 of 1988 and 81 of 1988 are all under investigation. Therefore, the fourth case in which the petitioner had already obtained acquittal could not be taken into consideration For the purpose of determining the petitioner as a dangerous person, it is also very relevant to notice that Section 2(c) defines dangerous person as a person who habitually commits or attempts to commit offences punishable under Chapter XVI or Chapter XVII of Indian Penal Code or any of the offences under Chapter V of the Arms Act. From the aforesaid seven criminal cases two cases are of 1985 and 1986 which are not proximate to the date of the order of detention and so stale. Moreover, the petitioner being acquitted the said cases could not be taken into consideration. Similarly Case No. 3 also falls outside the purview of the Section 2(c) of the said Act. Fourth Case No. 122 of 1986 can also not be considered as petitioner earned acquittal. Merely on consideration of the other three criminal cases which are under investigation and are yet to be decided the detaining authority cannot come to his subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Section 2(c) of the PASA Act. The other averments made in the said grounds and referred to hereinbefore are absolutely vague inasmuch as no particulars as to which persons have been robbed or what offences have been committed by showing deadly weapons at what place have not been mentioned. There is also no mention when and where the detenu in a drunken condition demanded money from whom nor it has been stated when the detenu threatened whom to murder by showing razor or Rampuri knife. There is no particular instance also as to which peace-loving citizens and in which area the petitioner has beaten in public believing that they are giving information of his criminal activities to the Police. It is also a vague statement that the detenu is coming in the way of maintenance of public order. Similarly the statement of the said four witnesses mentioned in the grounds of detention are also very vague and without any particulars of the names of the four witnesses and their addresses were not disclosed. These statements are also vague. In such circumstances, it is not at all possible for the detenu to make a proper and effective representation except merely denying the alleged grounds of detention as mandatorily required under Article 22(5) of the Constitution of India. This Article confers on a detenu two fundamental rights namely, (1) that the detaining authority has to communicate to the detenu the grounds as early as possible on which the order of detention has been made and secondly the right to make an effective representation against the said order. This obviously requires that the grounds must not be vague but must be specific relevant in order to enable the detenu to make an appropriate and effective representation against the same before the Advisory Board as well as before other authorities including detaining authority. The grounds and the averments made in the grounds which were served on the detenu are vague and as such they are violative of the Article 22(5) of the Constitution of India.

The second crucial question that falls for consideration in this case is whether the grounds of detention particularly referring to the seven criminal cases are relevant and germane grounds for passing of an order of detention under Section 3(1) of the PASA Act. All the seven criminal cases mentioned relate to problem of law and order and not public order in as much as they disclose cases relating to particular persons which has nothing to do with the maintenance of public order. As has already been said hereinbefore that out of the seven criminal cases, two have been compounded and in the fourth case the criminal charges have not been proved against the petitioner as such he was acquitted. The third case being under Section 135 of the Bombay Police Act does not fall within the purview of the Section 2(c) of the Act and it is confined to a private individual. The other three cases which are under investigation also relate to assault to private individuals and they have nothing to do with the disturbance of even tempo of the life of the community or of men of a particular locality nor does it affect the even flow of life of the public as a whole. Section 3(1) clearly mandates that the order of detention can be made only when the State Government or its authorised officer has come to a subjective satisfaction that a person is required to be detained in order to prevent him from acting in any manner. Prejudicial to the maintenance of the public order. Sub-section (4) embodies a deeming clause to the effect that a person should be deemed to act in any manner prejudicial to the maintenance of public order when such person is engaged in any activities as a dangerous person which affect adversely or are likely to affect adversely the maintenance of public order. Explanation to clause 4 further provides that for the purpose of this sub-section public order shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger of life, property or public health. Coming to this particular case, the criminal cases mentioned in the grounds of detention do not refer to any dangerous, harmful or adverse act or alarm which gives rise to a feeling of insecurity for the general public amongst the persons of a locality. The criminal cases are confined to certain private individuals and it is merely a law and order problem and it has nothing to do with maintenance of public order: Its reach and effect is not so deep as to affect the public at large. It does not create or tend to create any panic in the mind of people of particular locality or public in general nor it affects adversely the maintenance of public order. There is nothing to show that the above activities of the petitioner have affected or tended to affect the even tempo of life of the community. An act may create a law and order problem but such an act does not necessarily cause an obstruction to the maintenance of public order….

Then, there has been a reference to the earlier pronouncements of the Apex Court and the final opinion was expressed:

…Considering the above decisions, we are unable to hold that the criminal cases mentioned in the grounds and the statements of the witnesses referred to in the vague and irrelevant grounds of detention do not in any way pose a threat to the maintenance of public order nor it disturbs the even tempo of public life as envisaged in Section 3(1) of PASA Act. So there has been complete non-application of mind by the detaining authority before reaching a subjective satisfaction to make the impugned order of detention.

8. The statement that has given room for thinking and cross thinking at the level of this Court as to whether it is a precedent in law, or, in other words, ratio decidendi in law, or only a decision on facts, or in other words, a ratio decidendi on facts, as already noted, is:

…Merely on consideration of the other three criminal cases which are under investigation and are yet to be decided the detaining authority cannot come to his subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Section 2(c) of the PASA Act….

Are we to call what has been stated in the passage, as per extract made above, a ratio decidendi of law to be applicable to and govern decisions in all other cases as a proposition of law? To borrow the language of Dias : “Is it a ruling or a ratio decidendi to concern future litigants as well as those involved in the immediate dispute?”; or to say in the words of Salmond : “Is it a general rule of law for which the precedent is the authority?”; or to apply the terse test set down in Halsbury’s Laws of England, Fourth Edition, Volume 26 : “Is it the general reasons given for the decisions or the general words upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision”. As per the extract of passages in the pronouncement in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990(2) GLH 137(SC), we have no second thoughts that what happened is a decision on factual aspects and only a decision based on them. Even when we apply the reversal test of Professor Wambaugb, viz., the reversal of the opinion in the passage concerned, it would not have altered the actual decision. We express to this effect, because, there is a positive finding, on an assessment of the factual materials as a whole, that they were not germane and relevant for making the order of detention. There is a thinking expressed by the learned Counsel appearing for the detenus that the statement is a proposition of law to find out as to whether a person could be called a “dangerous person,” as defined in Section 2(c) of the Act, taking note of criminal cases pending investigation and not yet decided. The learned Counsel for the detenus would submit that unless a person first falls within the category of a “dangerous person”, within the meaning of Section 2(c) of the Act, there could not be a consideration of further aspects as per the requirements of Section 3(1) and (4) of the Act. Already, the definition of “dangerous person”, as per Section 2(c) has been seen, as per extract found in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990(2) GLH 137 (SC). The provisions of Section 3(1) and (4) run as follows:

3. 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 to do make an order directing that such person be detained.

XXX XXX XXX

(4) For the purpose of this section, a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.

Explanation : For the purpose of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any action thereof or a grave or widespread danger to life, property or public health.

Left with the plain language of the definition of a “dangerous person”, found in Section 2(c), it is not possible for the Court to insist, as a condition precedent, the launching of the process of criminal law, in respect of the concerned cases, which may form the basis for the order of detention, and awaiting a decision in the said process of criminal law at any stage whatsoever. Even if we look into Section 3(1) and (4) of the Act, it is not possible to spell out a proposition that the Detaining Authority should desist from going anywhere near those materials, in respect of which the process of criminal law has been set in motion, but it has not reached any point of decision and it is pending investigation. The definition speaks about habitually committing, attempting to commit or abetting the commission of the enumerated offences and not getting convicted for those offences. Investigation or no investigation, prosecution or no prosecution, conviction or no conviction, the tendency to commit or attempt to commit or abet the commission has to come out from the materials on record. To put it briefly, the habitual conduct has got to come out and not necessarily the character of a convict. Certainly, the Apex Court would not have intended to put a premium over the statutory definition and implications and insist for an element, neither explicit nor implicit in them. The Apex Court in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC). was not at all specifically called upon to deal with any proposition of law that whenever the subject-matter of the incidents or cases forming the basis for the order of detention have gone for investigation under criminal law and are under investigation, consideration of them is totally excluded. The Apex Court, in that case, chose to exclude them from consideration on an overall assessment of the facts of the case. The Apex Court was examining the attacks over the order of detention in that case on the contentions that the grounds therein were not germane and relevant and there had been non-application of mind on the part of the Detaining Authority. The statement, which has given room for our thinking, is part and parcel of the discussion of the factual aspects of the case and a decision over them from that angle. As pointed out by the Apex Court itself in State of Orissa v. Sudhansu Sekhar Misra and Ors. AIR 1968 SC 647, the essence in a decision is its ratio and not every observation found therein, nor what logically follows from the various observations made in it and it is not a profitable task to extract a sentence here and there from a judgment and to build upon it. As observed in H.H. Maharqjadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India AIR 1971 SC 530, a word, a clause or a sentence occurring in a judgment of the Apex Court should not be divorced from its context as containing the full exposition of law on the question when the question, as such, did not even fall to be answered in that judgment. As cautioned in Municipal Committee, Amritsar v. Hazara Singh AIR 1975 SC 1087, by distortion of a passage, the judgment could not and did not pass muster and every statement contained in a judgment of the Apex Court would not attract Article 141 of the Constitution of India. We are also obliged to remember, once again, the guidance given by the Apex Court in Additional District Magistrate, Jabalpur v. Shivakant Shukia AIR 1976 SC 1207, that when we consider the observations of that Court, the greatest possible care should be taken to relate the observations to the precise issues and confine such observations even though expressed in broad terms, in the general compass of the question before the Court, unless it was made clear that intention was to have a wider ambit.

9. If the statement found in Abdul Razak Narmekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC), has to be viewed only as a discussion of facts and conclusion arrived at on facts and could not form guidance as a precedent in law, then, this Court would, legitimately, take guidance from the pronouncements of the Apex Court dealing with this question on the subject of preventive detention law. In Sahib Singh Dugal and Ors. v. Union of India AIR 1966 SC 340, five learned Judges of the Apex Court eschewed the argument that when it was originally intended to prosecute the detenus and the criminal proceedings were, subsequently, dropped as authorities found that they could not muster sufficient evidence to obtain a conviction, it must lead to an inference that the action of the Detaining Authority was mala fide. The Apex Court opined that the said factor, by itself, was not sufficient to lead to such an inference.

In Bidhan Chandra Biswas v. State of West Bengal AIR 1972 SC 1850, two learned Judges of the Apex Court expressed the opinion that even if it may be assumed that cases were registered against the detenu by the police in respect of the incidents and the police, as a result of investigation, could not procure evidence, which could sustain the detention of the detenu, that fact would not be sufficient to say that the detention order made against him was mala fide. The earlier pronouncement in Sahib Singh Dugal and Ors. v. Union of India AIR 1966 SC 340 was referred to in this connection as having concluded the question.

10. In Haradhan Sana and Ors. v. State of West Bengal AIR 1974 SC 2154, a case decided by five learned Judges, as to how the power of detention is qualitatively different from punitive detention has been brought forth in the following passages found therein:

…The essential concept of 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. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelyhood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic)(on proof of?) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in Section 3 of the Act to prevent.

The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation, It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution….

11. In John Martin v. State of West Bengal AIR 1975 SC 775, a case dealt with by three learned Judges, the fact that no charge-sheet was filed in the cases and the cases were dropped, was declined to be taken note of as bearing out mala fides and the Apex Court referred to its earlier pronouncements in Sahib Singh Dugal and Ors. v. Union of India AIR 1966 SC 340, and in Bidhan Chandra Biswas v. State of West Bengal AIR 1972 SC 1850.

12. In Kanchanlal Maneklal Chokshi v. State of Gnjarat and Ors. AIR 1979 SC 1945 : 1979 GLR 890 (SC), a Bench consisting of three Judges, opined that the possibility of launching prosecution is not an absolute bar to an order of preventive detention.

13. In Smt. Hemlata Kantilal Shah v. State of Maharashtra and Anr. AIR 1982 SC 8, the view taken on the question by the two Judges, constituting the Bench after referring to the earlier pronouncement in Kanchanlal Maneklal Chokshi v. State of Gujarat and Ors. AIR 1979 SC 1945 : 1979 GLR 890 (SC), runs as follows:

…The rule laid down is that a prosecution or the absence of it is not an absolute bar to an order of preventive detention, the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences….

14. In Alijan Mian v. District Magistrate, Dhanbad and Ors. AIR 1983 SC 1130, three learned Judges of the Apex Court referred to the earlier pronouncement in Kanchanlal Maneklal Chokshi v. State of Gujarat and Ors. AIR 1979 SC 1945, and held that criminal prosecution is not an absolute bar to an order of preventive detention.

15. The law having been settled by the Apex Court in unambiguous terms in the pronouncements referred to above, that will have to form a guidance to this Court on the question. This is an our opinion expressed as above that what was stated in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC) has not travelled beyond a discussion of facts and a pronouncement on facts and it cannot have the character of a ratio decidendi on law. Even if there is a possibility to elevate the statement found in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC), as a proposition of law, yet, the decisions, which have preceded and spoken on the subject of preventive detention law rendered by the Apex Court itself, have come to be rendered by Larger Benches and they are binding on us and they have to form guidance for us on the question. As to how this Court should take guidance, when there are two pronouncements emanating from the Apex Court on the same question, has also been settled by the Apex Court itself. It will be useful if we refer to the decision in Mattulal v. Radhe Lal AIR 1974 SC 1596, wherein it was indicated that the Apex Court itself must follow the former decision of the Larger Bench than the latter decision of the Smaller Bench.

16. In the State of U.P. v. Ram Chandra Trivedi AIR 1976 SC 2547, the proposition has been succinctly summed up as follows:

…It is also to be borne in mind that even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India v. K.S. Subramanian Civil Appeal No. 212 of 1975, decided on July 30, 1976 to which one of us was a party is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself.

17. Our attention was drawn to the pronouncement of three learned Judges of the Apex Court in Ayub @ Pappukhan Nawabkhan Pathan v. S.N. Sinha and Anr. AIR 1990 SC 2069. to say that, there again, a proposition of law has been countenanced that the cases pending investigation will stand excluded from consideration by the Detaining Authority. In our view, no such proposition is discernible either by express terms, or by implication. What all the Apex Court was called upon to decide is as to whether a solitary incident could be sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of the offences and in that context, the only criminal case pending investigation was held to be not sufficient to come to that conclusion. That again, is a decision on facts and not giving out any ratio decidendi on law.

18. As per our discussion, we would answer the question posedfor our consideration in the affirmative and would say that the cases for the enumerated offences pending investigation will not stand excluded from the consideration of the Detaining Authority under the Act.

19. Accordingly, the present Special Criminal Applications will have to go before the appropriate Bench for consideration on merits.

S.D. Dave, J. (Dissenting)

20. A rather protracted hearing of these three References to this Larger Bench, has not been able to persuade me to concur with the Majority View expressed by My Lord The Hon’ble The Chief Justice. With profound respect, my candid confession should go on record, saying that I have a conviction that till the Supreme Court pronouncement, in case of Abdul Razak N. Pathan v. Police Commissioner, Ahmedabad and Anr. 1990 (2) GLH 137 (SC) holds the field, the Criminal Cases “which are under investigation and yet to be decided” cannot be taken into consideration, for recording a subjective satisfaction that the detenu is a dangerous person who habitually indulges in committing the offences referred to in Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (PASA). This dissenting opinion of mine is a mere reiteration of the said conviction. The reiteration could not be short cut.

21. I feel, I am throughout concerned with a prime question as to how would you read, construe, appreciate and apply a Supreme Court pronouncement or the Supreme Court pronouncement in the case of Abdul Razak (supra). Would you read it with an endeavour to have a lucid awareness of the moot questions involved, the contentions raised and combated therein, the factual and legal aspects demonstrated and the conclusions arrived at, so that ultimately you may be able to discern as to what the Supreme Court says and lays down as ‘the Law Of the Land’ having the constitutional sanctity and the status under Article 141 of the Constitution? Or would you read it applying the ‘Doctrine of Election’ as said in some what, uncharitable sarcastic tone, under which a reader of the pronouncement, may under a guise, of honesty and bona fides declare that he would palce the pronouncement under study, in juxtaposition to some other pronouncements, either of the Supreme Court or other Courts subordinate thereto and on comparison of the most relevant with some thing not relevant and germane in the context, both factual and legal, at the end, would prefer only that which is not relevant to that what is relevant and thereby make good an escape from what has become binding? The first is the method, rational and genuine, preached and advocated by the jurisprudence thus far. The second one has been advanced by the respondents. The complete thought process underlying this method of comparison between two incomparables, can be analysed a little bit later, of course only with a view to emphasis that it deserves an outright rejection. A notice, that this method of reading a pronouncement, preached often before different Benches of this High Court, for the reading of the Supreme Court pronouncement not only in case of Abdul Razak (supra) but also in Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr. AIR 1989 SC 491 and in K.M. Abdulla Kunhi & B.K. Abdul Khader v. Union of India AIR 1991 SC 574, appears to have been adopted to obtain an escape route, from the uncomfortable situation created thereby, would suffice at this juncture. The efforts to prescribe a new method of reading the Supreme Court pronouncement once again before this Larger Bench obviously failed to wonder me. These efforts did not sound novel to me either; it was nothing more and nothing less than the hearing of the oversung tunes of a popular Opera. Different Benches of this High Court have considered the pleas put forth by the detaining authority saying that the Supreme Court pronouncement in Piyush Kantilal Mehta (supra) does not lay down a proposition of Law, when after distinguishing between Law & Order and Public Order situation, it says that the detenu could not have been detained in absence of a subjective satisfaction that the activities of the detenu had the reach and impact on the Public Order situation, only for rejection. Pursuing the same oft-beaten track lengthy arguments have been advanced to convince different Benches of this Court to adopt a view that the Supreme Court pronouncement in case of K.M. Abdulla Kunhi (supra) does not deliver a ratio, in respect of the time sequence for hearing a representation to the Detaining Authority and a reference before the Advisory Board, but only unsuccessfully. Precisely therefore once again, when I commenced to hear that the pronouncement in case of Abdul Razak (supra) also does not provide a ratio, I found myself listening to the same old familiar story.

22. The quoting of the question referred to this Bench and of the crystalised ratio of Abdul Razak’s case may yet be delayed. According a priority to the characterisation sought to be made out by the learned Government Pleader, I recall all what that had transpired. Persistent was my query “Mr. Government Pleader, what do you say – how would you describe the say of the Supreme Court in Abdul Razak’s case?”. The wicket gate was sought to be opened by saying that it might be an Obiter Dicta or Obiters. Realising that Obiter in Law of the Supreme Court would be binding very much to me, quick came the reply, “must be treated as Obiter Simplicitor”. I had to pursue “Are these the Obiters of that nature or category, which are known as “Individual Impertinences”, that bindeth none, not the lips which uttered them?”. Then was advanced the third available alternative, namely “Observations” which ultimately during the course of the hearing came to be finally characterised as “Statement of Facts”. This showed the much wanting necessity of carving out a wicket gate, providing a small but safe escape route. The principle that necessity has to mother the inventions thus came alive before me in the form of an invented method of reading a Supreme Court pronouncement. In absence of a more – meaning – conveying – term, I would reckon it as a Comparison Test. The pronouncements from which a parity on comparison was sought to be drawn are the pronouncements of the Supreme Court and the High Court of Madras in Haradhan Saha v. State of West Bengal and Ors. AIR 1974 SC 2154 and in Suman v. State of Tamil Nadu and Anr. AIR 1986 Madras 318 respectively, which, with utmost respect do not render any assistance in taking a view contrary or different to that expressed in case of Abdul Razak (supra).

23. The thought process underlying this method can be disected this-wise:

(A) A firm conviction of the fact that the Supreme Court pronouncement does not suit you and your purpose.

(B) A deliberate generation of non-genuine doubts regarding the very existence and the validity of the ratio in the Supreme Court pronouncement.

(C) A search for other pronouncements not only of the Supreme Court but the Courts subordinate thereto, saying something different in altogether different contexts, both legal and factual.

(D) A so-called comparison of something which is entirely relevant, with something which is not relevant and is alien to the moot question in controversy, which calls for a resolution.

(E) Annihilation of the entirely relevant with the aid of something which is not relevant.

(F) Escape from consequences following from the Supreme Court pronouncement.

(G) Revolt against the Letter and Spirit of Article 141 of the Constitution of India, bestowing Constitutional Status to the Law laid down by the Supreme Court, resorting to a circuitous thought process, designed to obtain a desired conclusion.

24. It would now be appropriate to extract the question which has been referred to this Larger Bench. The question reads:

Whether the cases for the offences punishable under Chapter XVI and XVII of the Indian Penal Code and Chapter V of the Arms Act, 1959, pending investigation can be taken into consideration for arriving at the subjective satisfaction as to whether a person is a ‘dangerous person’ within the meaning of Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985?

25. The definition of a ‘dangerous person’ provided under Section 2(c) of PASA, 1985 runs thus:

‘dangerous person’ means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959).

26. The emphasis should be on the verbalism “Habitually Commits”. The feature to be taken into account is that abetment and attempt to commit offence are by themselves offences.

27. The Supreme Court in case of Abdul Razak (supra) says thus at para 10:

It has already been stated hereinbefore that offences under Chapter XVI of Indian Penal Code have been compounded and the detenu has been acquitted. As regards the third case, that is, Kagdapith Case No. 225 of 1987, under Section 135 of Bombay Police Act, the petitioner was convicted. This offence is not one of the offences falling with the offences mentioned in Section 2(c) of the PASA Act and as such this case cannot be taken into consideration to hold the detenu a dangerous person. As regards the fourth case-Maninagar Case No. 122 of 1986 being not proved against the petitioner he has been acquitted of the offences charged in the said case. The other three remaining cases, that is Maninagar Case No. 33 of 1988, Kagdapith Case No. 15 of 1988 and 81 of 1988 are all under investigation. Therefore the fourth case in which the petitioner had already obtained acquittal could not be taken into consideration. For the purpose of determining the petitioner as a dangerous person, it is also very relevant to notice that Section 2’c) defines dangerous person as a person who habitually commits or attempts to commit offences punishable under Chapter XVI or Chapter XVII of Indian Penal Code or any of the offences under Chapter V of the Arms Act. From the aforesaid seven criminal cases, two cases are of 1985 and 1986 which are not proximate to the date of the order of detention and so stale. Moreover, the petitioner being acquitted the said cases could not be taken into consideration. Similarly case No. 3 also falls outside the purview of the Section 2(c) of the said Act. Fourth case No. 122 of 1986 can also not be considered as petitioner earned acquittal. Merely on consideration of the other three criminal cases which are under investigation and are yet to be decided the detaining authority cannot come to his subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Section 2(c) of the PASA, 1985.

(Emphasis is mine)

28. Having examined the validity of the concept of Comparison Test advanced by the learned Government Pleader and having seen the question referred along with the definition of the term ‘dangerous person’ as provided under Section 2(c) of the PASA, 1985 and the say of the Supreme Court contained in para 10 of the pronouncement, I think I should proceed to ascertain the true meaning and implications of the term “Ratio decidendi” as understood in the Jurisprudence.

29. Lord Halsbury (Halsbury’s Laws of England, Fourth Edition, Vol. 26, para 573) describes the Ratio decidendi in the following manner:

The use of precedent is an indespensable foundation upon which to decide what is the law and its application to individual cases; provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. The enunciation of the reason of principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding recedem is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or Judge made, and a minor premise consisting of the material facts of the case under immediate consideration.

The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal’s duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. (sic) more reasons than one are given by the tribunal for its judgment, all are taken as forming the ratio decidendi.

(Emphasis supplied)

30. Salmond (“Salmond on Jurisprudence” Twelfth Edition, page 174) after having considered the extent to which Courts are bound by previous decisions proceeds to examine what constitutes the decision in a case and what it is that is actually binding on later Courts.

Salmond puts it this-wise:

First however, we must distinguish what a case decides generally and as against all the world from what it decides between the parties themselves. What it decides generally is the ratio decidendi or rule of law for which it is authority: what it decides between the parties includes far more than just this.

(Underlining provided)

31. Salmond talks of various methods of determining the ratio which have been advanced thus far and takes into consideration the “Reversal Test” of Professor Wambaugh suggesting that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision. Salmond takes note of another test suggested by Dr. Goodhart. According to it, the ratio is to be determined by ascertaining the facts treated as material by the Judge together with his decision on those facts.

32. Rupert Cross (Precedent in English Law, Third Edition) deals with both the above said tests, namely, Wambaugh Test and Dr. Goodhart Test). On page 53 of his classical work he deals with Wambaugh’s Test rather elaborately and points out that Wambaugh had stated the test in the following words:

First frame carefully the supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire “whether, if the Court had conceived this new proposition to be good, and had it in mind, the decision could have been the same If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for the proposition, but if the answer be negative the case is a precedent for the original proposition and possibly for other propositions also, in short, when a case turns only on one point the proposition or doctrine of the case, the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise.

33. Rupert Cross also makes a detailed reference to Dr. Goodhart’s method of determining the ratio decidendi and says that, according to Dr. Goodhart, the ratio decidendi of a case is determined by ascertaining the facts treated as material by the Judge and it is the principle to be ascertained from the Judge’s decision on the basis of those facts. The learned author points out that this method of determining the ratio decidendi has the great merit of paying more regard to the facts as seen by the Judge than is provided by Wambaugh Test.

34. Rupert Cross before dealing with Dr. Goodhart’s method of determining the ratio decidendi takes note of the rule enunciated by Lord Halsbury in Quinn v. Leathern 1901 AC 495 at page 506. In this decision Lord Halsbury opines thus:

A case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to flow logically from it.

35. Turning to the case law in this country the reference firstly shall have to be made to the Supreme Court decision in Dalbir Singh and Ors. v. State of Punjab AIR 1979 SC 1384, which says that, the only thing in a Judge’s decision, binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. A Full Bench decision in State of Bombay v. Chhaganlal Gangaram Lavar AIR 1955 Bombay 1 (FB) being a F.B. decision says that, so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon High Courts. Chief Justice Chagia while speaking for the Full Bench points out that, What is binding is not merely the point actually decided but an opinion expressed by the Privy Council which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given. In the same context a Full Bench decision rendered by Delhi High Court in Flying Officer S. Sundarajan v. Union of India and Ors. AIR 1970 Delhi 29, merits a consideration as it gives a clear idea in respect of ratio by providing a negative formula and proceeds to say:

Under Article 141 of the Constitution, the law declared by the Supreme Court is binding on all the Courts and therefore, even the Principle enunciated by the Supreme Court including its obiter dicta, when they are stated in clear terms, have a binding force. But when a question is neither raised nor discussed in a judgment’ rendred by the Supreme Court, no principle of a binding nature can be deduced from it by implication.

(Emphasis is mine)

This when presented in a positive manner instead of negative, would show that when a question is raised, discussed and decided in a judgment rendered by the Supreme Court, the same shall be a principle of a binding nature. Turning to a rather recent Supreme Court decision in State of U.P. and Anr. v. Synthetics & Chemicals Ltd. and Anr. JT 1991 (3) SC 268, which takes into consideration, the Supreme Court decisions in Municipal Corporation of Delhi v. Gurnam Kaur 1989 (1) SCC 101 and in Shama Rao v. State of Pondicherry AIR 1967 SC 1680 lays down that, any declaration or conclusion, arrived without application of mind or preceded without any reason cannot be deemed to be the declaration of Law or authority of a general nature binding as a precedent. This negative test when put in the positive manner, once again would go to show that a declaration or conclusion arrived at after application of mind and preceding on cogent reasoning, cannot be ignored. Speaking regarding precedents, this pronouncement says that the conclusion which are not preceded by reasoning or rational cannot be deemed to be a law declared to have a binding effect as contemplated under Article 141 of the Constitution of India. Once again putting this in positive language it would mean that the conclusions preceded by reasoning and rational, shall be deemed to be the law declared, having a binding effect as contemplated under Article 141 of the Constitution of India.

36. The Supreme Court has made it clear that even if a question is answered by necessary implication by the Supreme Court, then also the answer cannot be ignored by referring to the decisions appealed against and holding that real question that must be considered to have been answered was something else, and that, what the Judges expressly decided or what they must be considered to have decided by necessary implication would also constitute precedents. This view of the Supreme Court has been expressed in unequivocal manner in Gopal Upadhyaya and Ors. v. Union of India and Ors. AIR 1987 SC 413. The concluding portion of the pronouncement may be extracted thus:

When a question is answered expressly or by necessary implication by Supreme Court the answer cannot be ignored by referring to the decision appealed against and holding that the real question that must be considered to have been answered was something else What the Judges expressly decided or what they must be considered to have decided by necessary implication by reference to the facts stated by the Judges themselves are what constitute precedents.

37. Taking the aid of the said principle laid down by the Supreme Court, even if it is accepted that what has been befallen from the Supreme Court in case of Abdul Razak (supra) does not expressly decide the question as to whether criminal cases pending investigation and yet to be decided can be taken into consideration for the formation of the subjective satisfaction on the part of the detaining authority to detain him as a ‘dangerous person’ within the meaning of Section 2(c) of the PASA, 1985, then also, there should not be any difficulty in accepting alternatively the proposition, that the said question stands concluded by necessary implication in favour of the detenu.

38. An inquisitive look at the Supreme Court pronouncement in case of Abdul Razak (supra) with a view to ascertain whether the say of the Supreme Court conforms with and gets through the above said test, would serve a useful purpose. The Supreme Court pronouncement goes to show that the writ petition was directed against the orders of detention made under Section 3(1) of PASA, 1985, mainly on the ground that the grounds of detention are not germane and relevant and that there has been a non-application of mind by the detaining authority in making the orders of detention. Before proceeding to consider the said two contentions on merits, the Supreme Court has preferred to quote the excerpts of the grounds of detention at para 5 of the judgment. The details shown in the table indicate that out of the 7 cases registered against the petitioner-detenu, the cases at serial Nos. 1 & 2 came to be compounded, the case at serial No. 3 had resulted into conviction while the cases at serial Nos. 5, 6 and 7 registered against the petitioner detenu, were under investigation. Para 10 of the pronouncement, the relevant portion of which has been extracted earlier, provides sufficient indication to warrant a conclusion that the Supreme Court in fact has examined and discussed all the seven criminal cases including the three which were pending and were yet to be decided, while examining the question as to whether this material should be found sufficient for forming the subjective satisfaction on the part of the detaining authority that the detenu was a dangerous person, who habitually indulges in committing offences referred in Section 2(c) of the PASA, 1985. After having discarded the first four cases, while considering the remaining 3 cases which were under investigation and were yet to be decided, the Supreme Court says that, merely on consideration of these 3 such criminal cases, the detaining authority could not come to the subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Section 2(c) of the PASA, 1985. The Supreme Court proceeds further to examine the second crucial question as to whether the grounds of detention referring to the said 7 criminal cases are relevant and germane for passing an order of detention under Section 3(1) of the PASA, 1985, and points out that all the 7 criminal cases mentioned in the table relate to problem of Law & Order and not Public Order, inasmuch as the disclosed cases related to particular persons which had nothing to do with the maintenance of Public Order. The Supreme Court on the analysis of the material and especially the said 7 criminal cases has come to the conclusion that they would not be relevant and sufficient for passing an order of detention under the said provision of the PASA, 1985. Thus on a careful consideration of the contentions raised and combated and the factual and legal position, including the definition of the term “dangerous person”, occurring in Section 2(c) of the PASA, 1985 duly demonstrated, the Supreme Court has ultimately held that the orders of detention were illegal and bad and, therefore, the wait petition deserved to be allowed. The orders of detention were, therefore, ultimately quashed and set aside and the detenu was directed to be set at liberty forthwith.

39. Thus the very text of the Supreme Court pronouncement in case of Abdul Razak (supra) upon an inquisitive look, fully demonstrates that the Supreme Court, while examining the said two contentions urged before it, on the appreciation of the factual and legal aspect of the case, including the definition of term ‘dangerous person’ has concluded that merely on the consideration of the 3 criminal cases which were under investigation and were yet to be decided, the detaining authority could not have formed the subjective satisfaction that the detenu was a ‘dangerous person’ who habitually indulges in committing of offences referred to in Section 2(c) of the PASA, 1985.

40. The process of elimination adopted and employed by the Supreme Court should not go unnoticed even for a moment, under the same, one by one, all the seven cases have been taken out of the zone of consideration for recording the subjective satisfaction. The last three cases ‘under investigation and yet to be decided’, have not been allowed to constitute a material which could have been said to be relevant and germane ground of and for the orders of detention. Thus the ‘very question as to whether such cases could have been taken into consideration, as a ground of detention, was squarely and pertinently, on the anvil of the Supreme Court. The said question having been considered and answered after a clear analysis of the factual and legal aspects including the definition of “a dangerous person” the said say of the Supreme Court acquires, obtains and ultimately assumes the character and the significance of a ratio. The process of elimination under which ultimately the last three such cases have been left out leaves no scope of escape from this conclusion.

41. The Supreme Court had the occasion to examine the term “dangerous person” under Section 2(c) of PASA, 1985 in yet another pronouncement in Ayub @ Pappukhan Nawabkhan Pathan v. S.N. Sinha and Anr. AIR 1990 SC 2069 : 1990 (2) GLH 375 (SC), wherein when there was only one criminal case pending against the detenu, the Supreme Court has said the detenu cannot be said to be habitual offender and consequently, therefore, he cannot be brought under the term of dangerous person. The purpose for the reference should be to ascertain as to what would be the requirement for branding the detenu as a habitual offender and, therefore, a “dangerous person” within the meaning of Section 2(c) of the PASA, 1985. Probably the very view was alive to the Supreme Court while rejecting the three criminal cases “pending investigation and yet to be decided”, as being relevant and germane to the grounds for order of detention. Incidentally it may be noticed that the Full Bench decision of this Court in Ashok Ambu Parmar v. Commissioner of Police, Vadodara and Ors. [1987 (1)] XXVIII (1) GLR 580, which had the occasion to deal with the definition of ‘dangerous person’ within the meaning of Section 2(c) of the PASA, 1985, as it stood before the amendment, which took away the expression “during the period of three successive years” by Gujarat Act No. 16 of 1986 with effect from 25th July, 1986, has also said that the object of the Legislature is, to identify the dangerous person who habitually commits the offences mentioned in Section 2(c) of the PASA, 1985.

42. With a view to draw an artificial parity on the basis of comparison, our attention was drawn to the Supreme Court pronouncement in Haradhan Saha v. State of West Bengal and Ors. AIR 1974 SC 2154. It was sought to be emphasised by the learned Government Pleader appearing on behalf of the respondents before us, that the essential concept of preventive detention, in the sphere of suspense jurisdiction, is not to punish the detenu for something which he has done but is to prevent him from doing it. It was sought to be pointed out further, while placing reliance upon the observations made by the Supreme Court in para-19 therein, that the basis of detention, is the satisfaction of the executive of a reasonable probability and the likelyhood of the detenu acting in any manner similar to his past acts and preventing him by detention from doing the same. Heavy reliance was sought to be placed on the observations occurring in the very same paragraph saying that there is no parallel between prosecution in a Court of Law and the detention under the Maintenance of Internal Security Act, (MISA), 1971. But while making these strenuous efforts, in my view, the learned Government Pleader appears to have clearly overlooked the material distinction between the order of detention under MISA, 1971 and one under PASA, 1985, which is made obvious in para-3 of the said pronouncement, which calls for an extraction for the purpose of a quick reference:

The Act confers powers on the Central Government or the State Government to make orders directing detention of persons. Section 3 of the Act provides that when the Central Government or the State Government is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India, or (ii) the security of the Stats or the maintenance of public order or (iii) the maintenance of supplies and services essential to the community, District Magistrates, Additional District Magistrates or Commissioners of Police can pass orders of detention.

43. A parity, applying the Comparison Test was also sought to be drawn from Full Bench decision of the High Court of Madras in Suman v. State of Tamil Nadu and Anr. AIR 1986 Madras 318. This decision while considering the provisions contained under Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982, says that, reading the definition of Goonda alongwith the relevant part of the definition of “acting in any manner prejudicial to the maintenance of Public Order” it is not necessary for the exercise of powers of detention that a person in order to satisfy the description of a Goonda must be convicted for the offence punishable under Chapter XVI, XVII and XXII of the Penal Code.

44. Both the above said two decisions have been cited before me with a view to show that what has been said by the Supreme Court in case of Abdul Razak (supra) does not have the characteristic of a ratio decidendi. As pointed out by me the Comparison Test sought to be propounded by the learned Government Pleader has its own fallacies. There is a clear design of comparison between what is relevant with that which is not relevant. The Supreme Court pronouncement in Haradhan Saha (supra) concerns the powers conferred upon the Central Government or the State Government for making the orders, directing detention under Section 3 of MISA, 1971. The said decision has nothing to do and could not have to do anything with the question as to whether the criminal cases “pending investigation and yet to be decided” can be taken into consideration while forming the subjective satisfaction that a person requires to be detained as a dangerous person within the meaning of Section 2(c) of the PASA, 1985. An earlier general proposition based upon the examination of the relevant provision of MISA, 1971 cannot be called in aid to erase what has been said by the Supreme Court thereafter, while taking into consideration the provisions of the Act brought on the Statute Book of the State in year 1985 only. The questions which had fallen before the Supreme Court in case of Haradhan Saha and in case of Abdul Razak (supra) being entirely different, the very comparison between the say of these two decisions appears to me entirely uncalled for. Any how if one prefers to undergo such an exercise which appears prominently futile to me, then also the later Supreme Court decision which squarely decides the question as to whether the “criminal cases pending investigation and yet to be decided” can be taken into consideration or not cannot be over-looked. The same would be the position in case of the Full Bench decision recorded by Madras High Court in case of Suman and Ors. (supra). The ratio laid down by the said High Court in this decision cannot be invoked to set at naught the ratio laid down by the Supreme Court in case of Abdul Razak (supra) on a mere comparison. In my view, therefore, the reference to the above said 2 decisions must be discarded as the exercise in futility.

45. As noticed by me, the reliance was sought to be placed upon the earlier decision of the Supreme Court in Haradhan Saha v. State of W.B. AIR 1974 SC 2154, which turns upon the consideration of the relevant provisions of MISA, 1971. The endeavour was to impress upon me that in that particular decision also the detention orders have been said to be valid despite the absence of convictions. It was contended by the learned Government Pleader that the above said view expressed by the Supreme Court being by a Larger Bench, the view taken by the Supreme Court in case of Abdul Razak (supra) cannot be taken as a prevailing law of the land, and that the former decision of a Larger Bench than that of the later Smaller Bench shall have to be respected. With a view to gain support In resect of this contention, the reliance has been placed on the Supreme Court decision in Mattulal v. Radhe Lal AIR 1974 SC 1596. A view indeed has been taken, that the former decision of an earlier Bench than that of the later would prevail and, therefore, the former Bench decision should be followed. But it should not be over-looked that in both the decisions, namely, the former decision of the earlier Bench and the later decision by another Bench the question was one and the same, namely, the jurisdiction and the authority of the High Court in reversing the finding of fact, recorded by the District Court on the question of bona fide requirement of the landlord under M.P. Accommodation Control Act, 1961. Needless it is to emphasis that the former decision of the earlier Bench and the later decision of another Bench had proceeded to examine the very same question. As the Supreme Court decision in Haradhan Saha v. State of W.B. AIR 1974 SC 2154 proceeds on the basis of the consideration of the relevant provisions of MISA, 1971, while the Supreme Court pronouncement in Abdul Razak (supra) proceeds on the consideration of the relevant provisions of PASA, 1985, and especially the definition of a dangerous person within the meaning of Section 2(c) of the same Act, it cannot be successfully urged that the former decision being a decision of a Larger Bench should hold the field. One another decision in the same line which requires consideration is the Supreme Court pronouncement in the State of U.P. v. Ram Chandra Trivedi AIR 1976 SC 2547. This decision underlines the need of the proper course to be followed by a High Court in finding out and following the opinion expressed by Larger Benches of the Supreme Court in preference to those expressed by Smaller Benches of the same Court. Once again it requires to be appreciated that this decision takes note of a factual aspect that there was no real conflict in the ratio decidendi of the cases under consideration. Any how the Supreme Court has not expressed any such view that a decision rendered by a Larger Bench or earlier Bench should prevail upon the opinion expressed by a Smaller Bench or later Bench even though the questions which came to be raised and decided by the Courts were entirely different. Thus it would not be open for the respondent detaining authorities to urge before this Bench that the view expressed by the Larger Bench in Haradhan Saha v. State of W.B. AIR 1974 SC 2154 shall have the over-riding effect on the decision rendered by Supreme Court in case of Abdul Razak (supra).

46. The parity was sought to be drawn on the basis of certain decisions dispensing with the relevancy of the pending cases in the branch of detention law. Emphasis was placed upon the Supreme Court pronouncement in Alijan Mian v. District Magistrate, Dhanbad and Ors. AIR 1983 SC 1130, which, while considering the provisions contained under Article 22 of the Constitution of India, has taken the view, that pendency of the criminal proceedings pertaining to the same subject-matter on which the preventive detention orders are based, would not be a bar. The Supreme Court has ruled that the preventive detention proceedings are not parallel proceedings and the pendency of criminal prosecution is not a bar to an order of preventive detention nor is an order of preventive detention a bar to a prosecution. The question which was squarely before the Supreme Court in the said decision, was as to whether the said two proceedings can be said to be parrallel proceedings and as to whether the initiation or the pendency of one proceeding would bar the other proceeding. I feel I am not concerned with such a question in the present reference. Naturally, therefore, the principle laid down by the Supreme Court in this pronouncement would never assist the respondents in urging before me that “the criminal cases pending investigation and yet to be decided” can form the basis of the subjective satisfaction of the detaining authority that the detenu is a ‘dangerous person’ within the meaning of Section 2(c) of the PASA, 1985.

47. The Supreme Court in Municipal Committee, Amritsar v. Hazard Singh AIR 1975 SC 1087, has taken the view that even obiter dictum of the Supreme Court should be accepted as binding, but the statements of matters other than law have no binding force. This decision, therefore, would go to show that statements of matters other than law cannot be said to be having the binding force. In State of Kerala v. Parameswaran Pillai Vasudevan Nair 1975 Cri.LJ 97 the Full Bench of the Kerala High Court has stated that declaration of law by the Supreme Court, even if it be only by the way, has to be respected by the Courts standing on a lower plank.

48. Thus upon making a study, it appears that the Comparison Test as advocated by the respondents through learned Government Pleader Mr. Trivedi cannot be accepted. The so-called Comparison Test which does not appear to be permissible in the Jurisprudence thus far would require a. Court, subordinate to the Supreme Court, to come to the conclusion that on the application of the said Test, the pronouncement rendered by the Supreme Court under study, does not require to be preferred. Such a comparison would be nothing less than most arbitrary and artificial, as it calls upon the Courts to compare something which is relevant with something which is not in the context of the facts and the law. Applying the Tests known to the Jurisprudence thus far I shall have to revert to the two tests already referred to, namely, Wambaugh Test & Dr. Goodhart Test. If the Wambaugh Test is made applicable and if a reversed proposition is inserted, namely, that such eases can be considered while forming the subjective satisfaction, on the part of the detaining authority, then the decision could not have been the same. The obvious decision would be to hold that the orders of detention are valid and legal and that the material which came to be considered by the detaining authority, namely, “the criminal cases pending investigation and yet to be decided” was germane and relevant to the grounds of detention. It would thus become apparently clear that what the Supreme Court has said in case of Abdul Razak (supra) on the application of Wambaugh Test appears to be nothing but a ratio. The same would be the position even in case of the application of the other test, namely, Dr. Goodhart Test, because thereunder the ratio of a case is to be determined by ascertaining the facts treated as material by the Judge and it is the principle to be ascertained from the Judge’s decision on the basis of those facts. The facts treated as material by the Supreme Court, are the factual position in respect of certain cases registered against the petitioner detenu out of which three cases were pending investigation and were yet to be decided. The definition of dangerous person contained under Section 2(c) of the PASA, 1985 was also taken as a material aspect of the case. Ultimately it is on this material, which includes the factual and legal data, that the Supreme Court has come to the above said conclusion. In my view, therefore, the second test, namely, Dr. Goodhart Test also gets completely satisfied. Taking the compactus of various decisions referred to by me above the principle which emerges is that, when a question is raised and is decided in light of the contentions raised and combated, in the background of the legal and factual aspects demonstrated before the Court recording reasons for the same in the judgment rendered by the Supreme Court, such a decision amounts to a ratio decidendi. As indicated by me earlier in the case of Abdul Razak (supra) the Supreme Court has considered the contentions raised and combated in light of the factual and legal position and has thereafter rendered a decision saying that the material could not be said to be relevant and germane to the grounds of detention. This simple test thus also stands satisfied.

49. The scheme of PASA, 1985 duly demonstrated and pertinently examined by the Supreme Court in case of Abdul Razak (supra) exemplifies that the enactment was enacted and was brought on the Statute Book of the State as Gujarat Act No. 16 of 1985 to provide for the preventive detention of the Bootleggers, Dangerous Persons, Drug Offenders, Immoral Traffic Offenders and Property Grabbers for prevention of their anti-social dangerous activities prejudicial to the maintenance of public order, and it presupposes firstly the characterisation of a prospective detenu as an individual falling within the definition bound compass of any of the said five categories defined under Section 2 of the Act and secondly the subjective satisfaction on the part of the Detaining Authority that with a view to preventing him from acting in any manner prejudical to the maintenance of Public Order he requires to be detained. The ‘deeming’ provided in Sub-section (4) of Section 3 of the Act cannot be called in aid unless the prospectives detenu squarely falls within one of the said categories. Moreover, before an individual can be asked to occupy his seat within the definition Section 2(c) of the Act as a ‘Dangerous Person’ there has to be a satisfaction that he habitually commits or attempts to commit or abets the commission of the offences mentioned in the said subsection. This Scheme of the Act appears to have been demonstrated well and noticed with all the significance it deserves, The question before the Supreme Court, in substance and reality appears to be ‘How would you reckon a habit to commit, attempt to commit, or to abet the commission of the said offences, or a continuous habitual trend of such acts and deeds, on a mare consideration of the offences registered against the detenu but ‘pending investigation and yet to be decided’. An individual will never emerge as a habitual offender, and can never be branded as such, on the basis of the cases ‘which are under investigation and yet to be decided’. All mis, appears to have been laid bare before the Supreme Court. Hence in my view Abdul Razak (supra) provides-a ratio.

50. A careful reading of the Supreme Court pronouncement in case of Abdul Razak (supra), the Scheme of the enactment, namely. PASA, 1985, the prominence of the fallacies associated with the ‘Comparison Test’, the non-consideration of the moot questions involved in Abdul Razak’s case by earlier pronouncements of the Supreme Court (an impossibility in itself as PASA, 1985 with the definition of “Dangerous. Person” is borne on the Statute Book of the State years thereafter), and the satisfying of all the tests for discerning ratio, may be taken as compelling reasons, obliging me to write a dissenting opinion.

50.1. In view of all what I have stated hereinabove, I am of the opinion that the question referred to us requires to be decided and answered in negative. By saying that, the Criminal cases which are under investigation and yet to be decided cannot be taken into consideration for recording a subjective satisfaction mat the detenu me ‘dangerous person’ who habitually indulges in committing the offence referred to in Section 2(c) of Gujarat Prevention of Anti-Social Activities Act, 1985, I answer the same accordingly.

51. I feel I owe an explanation. I have commenced writing this Opinion of Dissent with a conviction, and has described this exercise as a reiteration. Any how, me close examination of the moot question involved, with the aid of relevant material, which was never considered on earlier occasions, would justify a claim mat me opinion is based upon a full reassessment.