CASE NO.: Writ Petition (crl.) 335 of 1994 PETITIONER: MUSTAKMIYA JABBARMIYA SHAIKH RESPONDENT: M.M. MEHTA, COMMISSIONER OF POLICE AND ORS. DATE OF JUDGMENT: 23/03/1995 BENCH: S.C. AGRAWAL & FAIZAN UDDIN JUDGMENT:
JUDGMENT
1995(2) SCR 960
The following Judgment of the Court was delivered by
FAIZAN UDDIN, J. 1. This writ petition under Article 32 of the Constitution
of India has been filed by the petitioner challenging the correctness and
validity of the detention order dated 19th August, 1994 passed by the
Commissioner of Police, Shahibagh, Ahmedabad city, detain-ing the
petitioner in exercise of the powers conferred on him under sub-section (1)
of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985
(hereinafter referred to as the Act) with a view to preventing the
petitioner-detenu from acting in any manner prejudicial to the maintenance
of public order in the area of Ahmedabad city. In pur-suance of the said
order the petitioner has been detained in jail, Junagarh.
2, Briefly stated the alleged activities of the detenu – petitioner as set
out in the grounds of detention dated 19th August, 1994 are that the
petitioner was habitually indulging in criminal and anti-social activities
in the area of Shahpur, Patwasheri area of Teen Darwaza and Sardar Garden
area of Ahmedabad city by keeping fire-arms, beating and assaulting
innocent citizens in public and creating an atmosphere of fear and terror
in the said areas. It has been alleged that the four witnesses have stated
in their statement that the detenu – petitioner is a headstrong, fierce and
habitual criminal and, therefore, nobody comes forward to complain against
him and the said witnesses have made a request not to disclose their names
and identity for fear of the petitioner and, therefore, the names and
identity of the witnesses have not been disclosed in public interest under
Section 9 (2) of the Act. The relevant criminal activities as alleged
against the detenu-petitioner are precisely detailed herein below:
___________________________________________________________________________
____________
s. No. Date& Time Place of occu-rrence C.R. No. Nature of
Offence Seizure Disposal of Incri-minating articles
1. 24.4.93 Glamour under Section 307,
6.30 PM Hair 452/34 IPC & 25(1)A.
Dresser I 66/93 Arms Act & Section pending
Shahpur 135(1) of Bombay
Police Act
2. 11.04.94 Shahpur 212/214 IPC harbo-
10.30AM of DCB 7/94 uring the absconding
offender of CR No.
63/93 of Shahpur
3. 10.08.94 Patwa- purchased goods worth
04.00PM shen – Rs.500 and on demand
Area of of price thereof
Tin dragging and beating
Darwaza – the businessman on –
public road and
pointing revolver
towards persons
gathered there
4. 12.08.94 Eastern stopping the witness
07.00PM Gate and beating him
Sardar doubting that he was
Garden informing police about
his anti-social activities
and pointing revolver
towards persons
gathered there
5. 14,08.94 Under Section 25/1 Point 34
country
07.45PM DCB Arms Act. made revolver
19/94
and 4 cartridges
___________________________________________________________________________
__________________
3. On the basis of the aforementioned cases and material connected
therewith as well as on the basis of statements of four witnesses the
detaining authority came to the conclusion that the petitioner is an anti-
so-cial element and a dangerous person within the definition of Section
2(C) of the Act who is habitually engaged in committing and attempting to
commit violent activities and creating an. atmosphere of fear by keeping
fire arms without pass/permit and with a view to preventing the petitioner
from acting in a manner prejudicial to the maintenance of public order
passed the impugned order of detention.
4. Initially Shri Sushil Kumar, learned senior counsel for the petitioner
canvassed that the petitioner had made representation on 26.8.1993 to the
Superintendent, District Jail, Junagarh for onward trans-mission to the
competent authorities for its disposal but the said repre-sentation of the
petitioner had not been disposed of so far. But Shri P.S. Vyas, Under
Secretary to the Government of Gujarat, Home Department (Special) in his
affidavit clearly indicated that the petitioner’s repre-sentation dated
26.8,1994 which was submitted by him on 31.8.1994 and received by the Stale
Government on 5.9.1994 was decided on 6.9.1994 and since 9.10.94 and
11.9.1994 were holidays the said decision was communi-cated to the
petitioner by letter dated 12.9.1994. Faced with this situation it was not
possible for the learned counsel to press this ground any further.
5. Learned counsel for the detenu – petitioner, however, strenuously
assailed the impugned order of detention by submitting that there is no
material to indicate that the detenu – petitioner is a dangarous person as
defined under Section 2(C) of the Act nor there is any material or any past
history of the detenu or his antecedents to show that the petitioner is
habitually engaged in anti – social activities which may be said to be
prejudicial, to the maintenance of public order. He submitted that the
petitioner is a married person and maintains a large family by carrying on
lawful business of readymade garments. He further submitted that the
incident dated 4.11.1994 under Section 212/214 I.P.C. regarding the alleged
harbouring of wanted offender does not fall either under Chapter XVI or
Chapter XVII of the I.P.C. as mentioned in Clause (C) of Section 2 of the
Act and, therefore, could not be made a ground in passing the impugned
order of detention. He also submitted that the incident dated 24.4.1993 is
stale and relates to an individual incident and has no relation or any
connection with the problem of any public order. He submitted that it may
at the most amount to a stray and individual incident relating to law and
order. He also submitted that mere possession of the alleged .32 bore
country made revolver with four cartridges without anything more par-
ticularly when the same was found to be rusty and the barrel broken could
hot be said to be to the working order and, therefore, the circumstances of
seizure of the revolver alone cannot lead to create any problem relating to
the public order. He also submitted that the incidents dated 10.8.94 and
12.8.94 are also stray and individual incidents absolutely having no
relation with public order. He, therefore, submitted that in the absence of
any material to indicate that the detenu – petitioner was a dangerous
person habitually committing or attempting to commit or abetting the
commission of any of the offences punishable under Chapter XVI or Chapter
XVII of the IPC or any of the offences punishable under Chapter V of the
Arms Act, the impugned order of detention could not be legally sustained,
6. With a view to deal with the aforementioned submissions advanced by the
learned counsel for the petitioner and to examine the legality/validity of
the impugned order of detention it would be appropriate to look into the
relevant provisions of the Act in question under which the detention order
has been passed. It may be pointed out that the Act provides for preventive
detention of bootleggers, dangerous persons, drug offenders, immoral
traffic offenders and property grabbers for preventing their anti-social
and dangerous activities prejudicial to the maintenance of public order. In
the present case having regard to the grounds of detection the detaining
authority on being satisfied that the detenu – petitioner was a ‘dangerous
person’ within the meaning of clause (C) of Section 2 of the Act and passed
the order of detention. Section 2(C) of the Act reads as under:
“Dangerous person” means a person, and either by himself or as a member or
leader of a gang habitually commits or attempts to commit or abetes 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, 1959″.
Here it would also be appropriate to reproduce the relevant part of Section
3 of the Act as under:-
“3(l)-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 neces-sary so to do, make an order
directing that such person be detained.”,
(2) If having regard to the circumstances prevailing or likely to prevail
in any area within the local limits of the jurisdiction of a District
Magistrate or a Commissioner of Police, the State Govern-ment is satisfied
that it is necessary so to do, it may, by order in writing, direct that the
District Magistrate or the Commissioner of Police, may also, if satisfied
as provided in sub-section (1) exercise the powers conferred by the said
sub-section”.
(3)…………..
(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 section thereof or a grave or widespread danger
to life, property or public health.
7. A reading of the preamble of the Act will make it clear that the object
of provisions contained in the Act including those reproduced above is to
prevent the crime and to protect the society from anti-social elements and
dangerous characters against perpetration of crime by placing them under
detention for such a duration as would disable them from resorting to
undesirable criminal activities The provisions of the Act are intended to
deal with habitual criminal dangerous and desperate outlaws who are so
hardened and incorrigible that the ordinary provisions of the penal laws
and the moral fear of punishment for crime are not sufficient deterrents
for them. Section 3 of the Act is, therefore, intended to deal with such
criminals who cannot readily be apprehended to be booked under the ordinary
law and who for special reasons, cannot be convicted under the penal laws
in respect of the offences alleged to have been perpetrated by them, But
this power under the Act to detain a person should be exercised with
restraint and great caution. In order to pass an order of detention under
the Act against any person the detaining authority must be satisfied that
he is a ‘dangerous person’ within the meaning of Section 2(C) of the Act
who habitually commits, or attempts to commit or abetes the commis-sion of
any of the offences punishable under Chapter XVI or XVII of the Penal Code
or any of the offences punishable under Chapter V of the Arms Act as
according to sub-section (4) of Section 3 of the Act it is such ‘dangerous
person’ who for the purpose of Section 3 shall be deemed to be a person
‘acting in any manner prejudicial to the maintenance of public order’
against whom an order of detention may lawfully be made.
8. The Act has defined ‘dangerous person’ in clause (C) of Section 2 to
mean a person who either by himself or as a member or leader of a gang
habitually commits or attempts to commit or abetes the commis-sion of any
of the offences punishable under the chapters XVI or XVII of the Penal Code
or any of the offences punishable under Chapter V of the Arms Act. The
expression ‘habit’ or ‘habitual’ has however, not been defined under the
Act, According to the Law Lexicon by P. Ramanatha Iyyar, Reprint Edition
1987 page 499 ‘habitually’ means constant, cus-tomary & addicted to
specified habit and the term habitual criminal may be applied to any one
who has been previously convicted of a crime to the sentences and committed
Jo prison more than twice. The word ‘habitually’ means ‘usually’ and
‘generally’. Almost similar meaning is assigned to the words ‘habit’ in
Aiyar’s Judicial Dictionary, 10th Edition page 485. It does not refer to
the frequency of the occasions but to the invariability of practice and the
habit has to be proved by totality of facts. It, therefore, follows that
the complicity of a person in an isolated offence is neither evidence nor a
material of any help to conclude that a particular person is a ‘dangerous
person’ unless there is material suggesting his complicity in. such cases
which lead to a reasonable conclusion that the person is a habitual
criminal. In Gopalan Chari v. State of Kerala, AIR (1981) SC 674 this Court
had an occasion to deal with expressions like ‘bad habit’, ‘habitual’,
‘desperate’, ‘dangerous’, and ‘hazardous’. This Court observed that the
word habit implies frequent and usual practice. Again in Vijay Narain Singh
v. State of Bihar, [1984] 3 SCC 14, this Court construed the expression
‘habitually’ to mean repeatedly or persistently and observed that it
implies a thread of continuity stringing together similar repetitive acts
but not isolated, individual and dissimilar acts and that repeated,
persistent and similar acts are necessary to justify an inference of habit.
It, therefore, necessarily follows that in order to bring a person within
the expression ‘dangerous person’ as defined in clause (C) of Section 2 of
the act, there should be positive material to indicate that such person is
habitually committing or attempting to commit or abeting the commission of
offences which are punishable under Chapter XVI or XVII of the I.P.C. or
under Chapter V of the Arms Act and that a single or isolated act falling
under Chapters XVI or XVII of I.P.C, or Chapter V of Arms Act cannot be
characterised as a habitual act referred to in Section 2(C) of the Act.
9. Further, sub-section (1) of Section 3 of the Act confers power on the
State Government and a District Magistrate or a Commissioner of Police
under the direction of the State Government to detain a person on being
satisfied that it is necessary to do so with a view to preventing him from
acting in any manner prejudicial to the maintenance of ‘public order’. The
explanation attached to sub-section (4) of Section 3 reproduced above in
the foregoing para contemplates that ‘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 sub-
section (4) directly or indirectly, are 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 to life, property or
public health. Sub-section (4) of Section 3 also provides that for the
purpose of Section 3, a person shall be deemed to be ‘acting in any manner
prejudicial to the maintenance of public order’ when such person is a
‘dangerous person’ and engaged in activities which affect adversely or more
likely to affect adversely the maintenance of public order. It, therefore,
becomes necessary to determine whether besides the person being a
‘dangerous person’ his alleged activities fall within the ambit of the
expres-sion ‘public order’. A distinction has to be drawn between law and
order and maintenance of public order because most often the two
expressions are confused and detention orders are passed by the authorities
concerned in respect of the activities of a person which exclusively fall
within the domain of law and order and which have nothing to do with the
main-tenance of public order. In this connection it may be stated that in
order to bring the activities of a person within the expression of ‘acting
in any manner prejudicial to the maintenance of public order”, the fall out
and the extent and reach of the alleged activities must be for such a
nature that they travel beyond the capacity of the ordinary law to deal
with him or to prevent his subversive activities affecting the community at
large or a large section of society. It is the degree of disturbance and
its impact upon the even tempo of life of the society or the people of a
locality which deter-mines whether the disturbance caused by such activity
amounts only to a ‘breach of law and order’ or it amounts to ‘public
order.’ It the activity falls within the category of disturbance of ‘public
order’ then it becomes essen-tial to treat such a criminal and deal with
him differently than an ordinary criminal under the law as his activities
would fall beyond the frontiers of law and order, disturbing the even tempo
of life of the community of the specified locality. In the case of Arun
Ghose v. State of West Bengal, [1970] 1 SCC 98 this Court had an occasion
to deal with the distinction between law and order and public order.
Hidayatullah, C.J. (as he then was), speaking for the Court observed that
public order would embrace more of the community than law and order. Public
order is the even tempo of the life of the community taking the country as
a whole or eves a specified locality. Disturbance of public order is to be
distinguished from acts directed against individuals which do not disturb
the society to the extent of causing a general disturbance of public
transquillity. It is the degree of disturbance and its affect upon the life
of the community in a locality which determines whether the disturbance
amounts only to breach of law and order. It has been further observed that
the implications of public order are deeper and it affects the even tempo
of life and public order is jeopardized because the repercussions of the
act embrace large sections of the community and incite them to make further
breaches of the law and order and to subvert the public order. An act by
itself is not determinant of its own gravity. In its quality it may not
differ from another but in its potentiality it may be very different, Again
in the case of Piyush Kantilal Mehta v. Commissioner of Police, [1989]
Supple. 1SCC322, this Court took the view that b order that an activity may
be said to affect adversely the maintenance of public order, there must be
material to show that there has been a feeling of insecurity among the
general public. If any act of a person creates panic or fear in the minds
of the members of the public upsetting the even tempo of life of the
community, such act must be said to have a direct bearing on the question
of maintenance of public order. The com-mission of an offence will not
necessarily come within the purview of public order which can be dealt with
under ordinary general law of the land.
10, Now reverting to the grounds of detention and the summary of incidents
alleged against the petitioner as mentioned in the beginning of this
judgment, it may be stated that the first incident is said to have taken
place on 24.4.1993 at about 6.45 PM in which the detenu – petitioner
alongwith some of his associates is alleged to have dragged out the
complainant, one Mohd. Hussain from inside the Hair Cutting Saloon of
Shahpur and associates of the petitioner fired four rounds from the
revolver injuring the complainant and one another customer. The report
lodged by the complainant Mohd. Hussain himself on 24.4.1993, a copy of
which has been placed on record, goes to show that a day earlier, that is
on 23.4.1993 at about 9.30 PM there was a quarrel between Amjad Khan, the
younger brother of the complainant Mohd. Hussain and the petitioner upon
sounding the scooter horn in the gali of the house of the petitioner and it
was in that connection that next day i.e. on 24.4.1993 the alleged incident
of assault by the petitioner and his associates to the complainant Mohd.
Hussain took place. From the narration of facts in the said complaint it is
abundantly clear that the criminal activity was directed against an
individual and from the nature of the incident it is difficult to assume
that it gave rise to public order disturbing the tranquillity of the
locality. At the most it was a criminal act directed only against an
individual which has nothing to do with the question of public order It
appears that it was on account of the earlier day incident that the
petitioner made a plan alongwith his associates to teach a lesson to the
complainant by assaulting him when he was seen in the Hair Cutting Saloon
on 24.4.1993, This apart the incident had occurred on 24,4.1993 while the
detention order was passed on 19.8.1994 after the lapse of more than 16
months. This long lapse of time between the alleged prejudicial activity
and the detention order loses its significance because the said prejudicial
conduct was not approximate in point of time and had no rational connection
with the conclusion that the detention was necessary for maintenance of
public order. Such a stale incident can not be construed as justifiable
ground for passing an order of detention. The second incident dated
11.4.1994 was that the detenu – petitioner was harbouring offender which is
an offence under Sections 212/214 of the I.P.C, An offence under Section
212/214 of the I.P.C. cannot be made a basis for passing an order of
detention against the petitioner as the said offence does not fall either
under Chapters XVI or XVII of the I.P.C. In order to bring a person within
the definition of Section 2(C) of the Act it is essential to show that such
person either by himself or as a member of or a leader of a gang habitually
commits or attempts to commit or abets the commission of offences
punishable under Chapter XVI or XVII of the Indian Penal Code or any of the
offences punishable under Chapter V of the Arms Act. But as pointed out
earlier the offence registered against petitioner under F.I.R. of C.R.No.
7/94 of DCB dated 11,4. 1994 is one under Sections 212/214 of the I.P.C.
which falls under Chapter XI of the I.P.C. and not under any of the
chapters XVI or XVII which is the requirement of Section 2(C) of the Act.
This incident, therefore, can not be made a basis for satisfaction of the
detaining authority that petitioner is a habitual offender, so as to
sustain the order of detention.
11. This brings us to criminal activities of the detenu – petitioner which
are said to have taken place on 10.8.1994 at 4.00 PM and on 12.8.1994 at
7.00 PM. I the incident dated 10.8.1994 the petitioner is alleged to have
purchased goods worth Rs. 5(K) from a businessman and on the demand of the
price of the goods, the petitioner is alleged to have dragged him out on
the public road and not only gave a beating to him but also aimed his
revolver towards the people gathered over there. Similarly it is alleged
that on 12.8.1994 at about 7.00 PM the detenu – petitioner stopped the
witness on the road near eastern side of Sardar Garden and beat him as the
petitioner doubted that he was informing the police about the anti-social
activities of the petitioner and his associates. The petitioner is also
alleged to have rushed towards the people gathered there with the revolver.
Taking the aforesaid two incidents and the allegations on their face value
as they are, it is difficult to comprehend that they were the incidents
involving public order. They were incidents directed against single
individuals having no adverse affect prejudicial to the maintenance of
public order disturbing the even tempo of life or the peace and tran-
quillity of the locality. Such casual and isolated incidents can hardly
have any implications which may affect the even tempo of life or jeopardize
the public order an incite people to make further breaches of the law and
order which may result in subversion of the public order. As said earlier
the Act by itself is not determinant of its own gravity but it is the
potentiality of the act which matters.
12. The alleged incident dated 12.8.1994 relating to the beating of some
person on suspicion that he was informing the police about criminal
activities of the petitioner, the allegation is sweeping without any
material to support it. Neither any timely report appears to have been made
about it to the police nor any offence appears to have been registered
against the detenu – petitioner concerning the said incident. There remains
the solitary incident dated 10.8.1994 pertaining to the alleged beating of
a businessman which as said earlier directed was against an individual
having no adverse impact on public at large. Besides, the solitary incident
dated 10.8.1994 alone would not provide a justification to hold that the
petitioner was habitually committing or attempting to commit or abetting
the commission of offences as contemplated in Section 2(C) of the Act
because the expression ‘habitually’ postulates a thread of continuity in
the commission of offence repeatedly and persistently. However, in our
considered opinion hone of the aforementioned two incidents can be said to
be incidents affecting public order nor from these stray and casual acts
the petitioner can be branded as a dangerous person within the meaning of
Section 2(C) of the Act, who was habitually engaged in activities adversely
affecting or likely to affect adversely the maintenance of public order.
Similar is the position with regard to the recovery of .32 bore country
made revolver from the possession of the petitioner without any permit or
licence which is an offence under Section 25 of the Arms Act. The said
revolver was found to be rusty and had a broken barrel. Mere possession of
a firearm without anything more cannot bring a case within the ambit of an
act affecting public order as contemplated in Section 3 of the Act unless
ingredients of Section 2(C) of the Act are also made out. From the facts
discussed above it turns out that there was no material which may lead to a
reasonable and definite conclusion that the detenu – petitioner was
habitually engaged in criminal activities and, therefore, a dangerous
person. The detaining authority thus passed the impugned order of detention
against the petitioner without application of mind on the aforesaid aspects
of the case and, therefore, the detention order could not be sustained.
13. Consequently, we allow the writ petition and quash the impugned order
of detention and direct that the petitioner be released forthwith.