JUDGMENT
D.C. Srivastava, J.
1. In this writ petition under Article 226 of the Constitution of India the writ of certiorari has been prayed for quashing the detention order dated 23.3.1998 passed by the Commissioner of Police, Rajkot under section 3(2) of Prevention of Antisocial Activities Act (for short PASA) in addition to writ of habeas corpus for immediate release of the petitioner from illegal detention.
2. The impugned order is contained in Annexure “A” whereas the grounds of detention are contained in Annexure “C” to the writ petition.
3. The brief facts are disclosed in the grounds of detention according to which five cases under various sections of the Indian Penal Code and Bombay Prohibition Act were registered against the petitioner in the years 1995 and 1996. On the basis of these five offences and considering the nefarious prejudicial activities of the petitioner he was ordered to be externed from Rajkot City and Rajkot Rural vide order dated 15.9.1997 under section 56(k) of Bombay Police Act. The order was served on the petitioner on 16.9.1997. The period of externment is to expire on 15.9.1999. Inspite of that the petitioner entered in Rajkot City on 4.10.1997, 2.1.1998 and 5.3.1998 in breach of the externment order and was arrested by the police for committing breach of externment order. Inspite of the externment order the petitioner continued to commit criminal activities and as many as five more cases were registered against him in the years 1997 and 1998, the details of which are given in the grounds of detention. Out of these offences at sr. nos. 1 and 3 were registered for committing breach of externment order. The brief account of offences at sr. nos. 4 and 5 has also been given in the grounds of detention. These offences were committed in the year 1998. In addition to these offences the petitioner was found to be strong- headed, forceful and quarrelsome person who was beating innocent persons for petty matters. He was moving with deadly weapons like knife etc. and giving threats to innocent persons of their lives. Three witnesses also deposed about the antisocial and criminal activities of the petitioner which were prejudicial for maintenance of public order. On the basis of the aforesaid material the Detaining Authority was satisfied that the petitioner is a dangerous person within the meaning of section 2(c) of the PASA Act. Consequently, the impugned order of detention was passed. This order has been challenged on three grounds. In the course of argument of the learned Counsel for the petitioner the first ground was that the documents relating to criminal cases mentioned at sr. nos. 1 to 5 on second page of the detention order were not supplied to the petitioner which has violated fundamental rights of the petitioner to make effective representation in his defence and thus provisions of Article 22(5) of the Constitution of India have been violated. The next ground has been that in the grounds of detention five subsequent cases of 1997 and 1998 have been relied upon but three cases are under the Bombay Prohibition Act. Hence, these offences cannot be said to be punishable under Chapters XVI and XVII of the Indian Penal Code. This has rendered the impugned order invalid because it suffers from the vice of non application of mind. The last ground has been that the activities of the petitioner cannot be said to be prejudicial for maintenance of public order.
4. Coming to the first point it is to be seen what is the effect on non supply of documents relating to offences mentioned at sr. nos. 1 to 5 on second page of english translation of the grounds of detention. From careful examination of the grounds of detention it appears that these five cases were not actually relied upon by the Detaining Authority for passing the impugned order. On the other hand, the reference of these cases was made only with a view to substantiate the stand of the Detaining Authority that the petitioner was externed vide order dated 15.9.1997. In the background of those five cases the said externment order was served on the petitioner on 16.9.1997 and still he has committed breach of the externment order. Naturally copy of the externment order was served on the petitioner and if those cases were mentioned it was only as a matter of precaution and not otherwise that these cases were mentioned. It was only as a matter of precaution and not that this was the material for passing the impugned detention order. In para 7 of the counter affidavit of Chitranjansinh, Ex. Police Commissioner, Rajkot City, he has deposed that he as a Detaining Authority did not take into consideration the five cases mentioned in para 2 of the grounds of detention and those five cases were shown for the purposes of showing that the breach of the earlier externment order was committed and since he did not take into consideration those five cases for passing the detention order the copies of the chargesheet etc. in this respect were not supplied to the detenu. The Apex Court in Abdul Sathar Ibrahim Manik Vs. Union of India, AIR 1991 SC Pg.2261 observed that vital documents like appeal, application and order refusing bail which were not placed before the Detaining Authority nor referred to nor relied upon by the Detaining Authority there was no need to supply the same to the detenu. After considering catena of decisions in this case the Apex Court observed placing reliance upon the case of L.M.S. Ummu Saleema Vs. V. B. Gujaral (1981) 3 SC 1191 that it is therefore, clear that every failure to furnish copy of a documents to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the Detaining Authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5)”. In the view of the Apex Court, it is not necessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts which are not relied upon by the Detaining Authority in making the order of detention. It was further observed that it will therefore to be seen that failure to supply each and every document merely referred to and not relied upon will not amount to infringement of the rights guaranteed under Article 22(5) of the Constitution.
5. It is thus clear from the above two decisions that the Apex Court has drawn distinction between documents which are merely referred in the grounds of detention and the documents which are relied upon by the Detaining Authority for passing the detention order. According to the Apex Court copies of documents which are merely or casually referred in the grounds of detention need not be supplied and this omission will not render the detention order bad in law. However, if the document has not only been referred but also relied upon for reaching subjective satisfaction it is incumbent for the Detaining Authority to supply copies of such documents so that there may be no infringement of rights guaranteed under Article 22(5) of the Constitution of India. It depends upon the facts and circumstances of each case whether a particular document has been merely referred to but not relied upon or it has been referred to as well as relied upon. I have already observed earlier that five cases on page 2 of the translation of grounds of detention were disclosed in the grounds of detention only to facilitate the detenu to know in what background the externment order was passed against him. Thus, copies of chargesheets of those cases were not material. Only copy of externment order was material and this was supplied. The case of Khudiram Das Vs. State of West Bengal and others, AIR 1975 Pg.550 referred by the learned Counsel for the petitioner is distinguishable. In this case it was laid down by the Apex Court that the grounds under Article 22(5) mean all the basic facts and materials which have been taken into account by the Detaining Authority in making the order of detention and on which the order of detention is based and these materials must be furnished to the detenu. However, from this very pronouncement it appears that only basic facts and materials which weighed with the Detaining Authority in passing the detention order should be communicated. Since the Detaining Authority has clarified in his counter affidavit that he did not consider these five cases for passing the detention order, rather, they were mentioned only for showing that externment order was passed on that basis it cannot be said that there has been violation of Article 22(5) of the Constitution of India.
6. Similarly in the case of Smt. Icchu Devi Choraria Vs. Union of India, AIR 1980 S.C. Pg.1983, it was held that supplying of grounds of detention includes documents relied upon in such grounds. In the instant case also the emphasis was that the document which has been relied upon in the grounds of detention should be supplied to the detenu. Since the documents of those five criminal cases were not relied upon by the Detaining Authority he was not obliged to supply their copies of the petitioner.
7. The case of Smt. Shalini Soni Vs. Union of India, AIR 1981 S.C. Pg. 431 also nowhere lays down that the documents which were not relied upon by the Detaining Authority but were merely referred should also be supplied to the petitioner. Thus, on this ground also the impugned order cannot be quashed.
8. The next contention has been that five criminal cases have been relied upon by the Detaining Authority for passing the impugned order against the petitioner. The said offences were committed in the years 1997 and 1998. It was argued that these cases were mechanically considered by the Detaining Authority because the cases at sr. nos. 1 to 3 under section 142 are under Bombay Police Act and not offences punishable under Chapters XVI & XVII of the IPC. Of course the offences at sr. nos. 4 and 5 are offences falling interalia under Chapters XVI & XVII of the IPC. According to the learned Counsel for the petitioner this has rendered impugned order illegal due to the mechanical exercise on the part of the Detaining Authority. I again do not find force in this contention. On the other hand in all fairness the detaining authority has disclosed the entire prejudicial activities of the petitioner which were likely to disturb the public order. For a person to be declared as dangerous person within the meaning of section 2(c) of the PASA Act, 1985 what is required is that a person either by himself or as a member or leader of a gang habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act. Repeated commission of offences is indicated from commission of two offences under sections 394 and 114 of IPC and sections 307 and 504 of IPC. Besides this commission of offences punishable under these chapters has also been indicated by the witnesses in their statements. As such it cannot be said that the impugned order suffers from the vice of non application of mind or that it was passed mechanically. On this ground also the impugned order cannot be quashed.
9. The last ground is that the impugned order is not sustainable because the activities complained against the petitioner do not amount to creating situation prejudicial for maintenance of public order. I do not find force in this contention. Each case has to be decided on its own facts. The facts of this case are that earlier on 15.9.1997 the externment order was passed against petitioner under section 56(k) of the Bombay Police Act and he was externed for a period of two years from Rajkot City and Rajkot Rural. He did not obey this order, rather, intentionally or deliberately committed breach of this order and entered these districts for committing criminal offences and continuing activities in Rajkot City. Specific dates have been given that he entered on 4.10.1997, 2.1.1998 and 5.3.1998. The externment order will expire on 15.9.1999 but before that he committed five offences. At page 8 of the translated grounds of detention the Detaining Authority made it clear that offences at sr. nos. 1 to 3 have been registered for committing breach of externment order. This, therefore, negatives the contention that the order of the Detaining Authority was mechanical. For the purpose for which these cases were mentioned has been disclosed on page 8 of the grounds of detention.
10. In addition to this, the details of offences mentioned at sr. nos. 4 and 5 are also given in the grounds of detention which cannot be underestimated. It is also mentioned that other persons of the city have become victims of petitioner’s antisocial activities. This also cannot be said to be imaginary ground especially when the petitioner after committing brach of externment order entered the city of Rajkot and continued to indulge in his antisocial criminal activities. He was found possessing deadly weapons like knife etc. This is also an offence punishable under Chapter V of the Arms Act.
11. The statements of three witnesses mentioned in the grounds of detention loudly speak that the activities of the petitioner were certainly prejudicial for maintenance of public order and these witnesses on account of fear of the petitioner did not pick up courage to lodge FIR with the police and requested the authorities to keep their names and addresses secret and confidential.
12. The first witness narrated the incident dated 4.3.1998 which took place at 5.00 p.m. The witness was going to his business place. The petitioner asked the witness to pay money. The witness refused to oblige the petitioner, whereupon the petitioner became angry. He caught hold of the neck of the witness and he started abusing him. The witness was severely beaten on the abdomen. He was thrown on the road. The petitioner sat on the chest of the witness and forcibly took out Rs.345/_ from him. When the witness asked the petitioner to return money else he would lodge complaint against him for robbery the petitioner became angry and took out knife from his pant and inflicted knife injury on the abdomen of the witness. Injury was also caused on the palm of the witness. Threat was given to the witness that he would be murdered whereupon persons of the locality collected and an atmosphere of fear was created. Such incident cannot be said to be the incident prejudicial for maintenance of law and order. The persons who collected at the spot were also threatened. The petitioner went towards the mob with open knife. It was therefore a situation prejudicial for maintenance of public order especially in the background that the petitioner violated the externment order and showing disrespect to the law and order continued in his prejudicial criminal activities. If this offence would have been registered certainly it would have been an offence punishable under Chapter XVI of IPC being an offence punishable under section 307 of the IPC.
13. The second witness narrated the incident dated 1.1.1998. Here also the witness was threatened with knife. Not only the knife was shown to the witness but he was injured on the neck by knife which amounted to attempt to commit murder and threat was also given to the persons who collected at the scene of occurrence. In this incident also situation prejudicial for maintenance of public order was created.
14 In the third incident also the petitioner placed knife on the abdomen of the witness and threatened him to kill. The details are given in the grounds of detention and from such details it can be said that the activities of the petitioner were prejudicial for maintenance of public order.
15. The result therefore is that the activities of the petitioner were prejudicial for maintenance of public order, firstly, because despite externment order he violated it and continued to indulge in his antisocial activities. His antisocial activities and criminal activities narrated by the witness also created situation prejudicial for maintenance of public order. Each case has to be decided on its own facts and merely on an abstract distinction between law and order and public order it cannot be said and held that the instances given by the witness in the case under consideration did not amount to incidents prejudicial for maintenance of public order. It was not a case of stray incident between the petitioner and the witnesses, rather it was repeated activity of the petitioner, at least with three persons and nobody knows how many confidential witnesses had suffered silently on account of such activities of the petitioner. Consequently, no advantage can be given to the petitioner from the pronouncement of the Apex Court in the case of Mustakmiya Jabbarmiya Shaikh Vs. M. M. Mehta, Commissioner of Police and Others in (1995) 3 SCC 237. Like wise no benefit can be given to the petitioner of the Apex Court’s verdict in the case of Gulab Mehra Vs. State of U.P. AIR 1987 SC Pg.2332. The case of Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad, 1990(2) GLH Pg.137 also does not help the petitioner because upon overall examination and the nature of the activities in which the petitioner indulged it can be said that even tempo of the life of the society and community was disturbed and was also likely to be disturbed because of his continued activities and grave violation of the externment order which is still continuing and will expire on 15.9.1999. Thus, on this ground also the detention order cannot be quashed.
16. It would be relevant to point out explanation to section 3(4) of the PASA which provides that for the purposes of this sub-section public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely interalia if any of the activities of any person referred to in this section directly or indirectly is causing or likely to cause any harm, danger or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. From this explanation, it is clear that if the activities of dangerous person are such which either directly or indirectly cause or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof it will be deemed that such dangerous person has acted in a manner prejudicial for maintenance of public order. From what has been discussed above, it is clear that persons in the district of Rajkot City and Rajkot Rural felt insecurity from the petitioner because of his repeated criminal activities even after externment order and the residents of that locality on account of subsequent activities of the petitioner were feeling danger and alarm to their life and security. In view of this deeming provision regarding disturbance of public order the petitioner can be said to have disturbed public order and had created situation prejudicial for maintenance of public order.
17. For the reasons stated above I do not find any merit in this writ petition which is hereby dismissed.