JUDGMENT
R.M. Doshit, J.
1. Heard the learned Advocates for the respective parties.
2. The petitioners in all these three petitions, a Police Sub-Inspector and the contables, are co-accused in an offence registered as C. R. No. 380 of 1998 in Kagdapith Police Station for the offences punishable under Sees. 318, 506(2), 170 and 114 I.P.C. and under Section 25(1) of the Arms Act. Pursuant to the said offence, all the writ petitioners are detained under the orders of preventive detention dated 1st September, 1998 made by the Commissioner of Police, Ahmedabad under the powers conferred upon him under sub-section 1 of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as, ‘the Act’). All the three detention orders are based on the same evidence and common questions of law arise in all these three petitions. The petitions are, therefore, disposed of by this common judgment.
3. The grounds of detention served upon the respective petitioner along with the order of detention suggest that apart from the above referred offence registered against the writ petitioners, further information has been received by the concerned authorities in the form of statements by the witnesses. The first witness, whose identity has been withheld, has stated that on 10th August, 1998 when he was passing nearby Raipur Darwaja, three persons came and detained him and asked him to open his bag. These three persons feigned themselves to be personnel from the Office of Directorate of Prohibition, looking for narcotic traffickers. Upon inspection of his bag, nothing objectionable was found. The witness thereupon was threatened of a case under the Narcotic Act and at the point of revolver, the witness was robbed of Rs. 7000/-. This incident attracted passers-by and a crowd gathered. On petitioner’s (i.e., the petitioner in Special Civil Application No. 7809 of 1998) aiming a revolver at the crowd, the people became panicky and started running away. The incident narrated by the second witness is that of 11th August, 1998. The petitioners are alleged to have visited the place of business of witness at around 9.00 O’clock in the evening and projected themselves to be personnel from the office of Directorate of Prohibition and stated that they had received information that the stock of liquor was stored in the shop of the witness and they had come to raid the premises. Upon inspection, no liquor was found from the witness’s shop. When the witness stated that he never consumed the liquor nor did he keep liquor, the irritated petitioner-Nirav Vyas, the petitioner in Special Civil Application No. 7809 of 1998, took out his revolver and aimed at the witness and the two others abused the witness. The three, thereafter robbed the witness
of Rs. 5000/-, his turnover of the day. Upon witness demanding for the said money, all the three dragged the witness out of his shop to the public road and started beating him. The witness having shouted for help, the people gathered there. Even the petitioners abused the people gathered there and the petitioner Nirav Vyas aimed his revolver at the crowd, creating terror. The crowd became panicky and ran helter-skelter. The witness being afraid of retaliation by the petitioners did not complain about the incident in question.
4. Learned Advocate Mr. Dave appearing for the petitioners has submitted that neither of the petitioners can be said to be habitual offender, and therefore, cannot be said to be ‘dangerous person’ as defined in Clause (c) of Section 2 of the Act, nor can they be said to have acted in a manner prejudicial to the maintenance of public order. In absence of both these ingredients, the orders of detention made against the petitioners are not tenable. He has submitted that a single offence has been registered against the petitioners and no person can be detained under the Act for a solitary offence alleged to have been committed by him. He has submitted that while calling a person to be a ‘dangerous person’ within the meaning of Section 2(c) of the Act, such person is required to be shown to be a habitual offender. For being a habitual offender, one has to repetitively indulge himself in commission of the offences referred to in Section 2(c) of the Act. By commission of singular offence, one cannot be said to be a habitual offender. Besides, the offence registered against the petitioners and the incidents narrated by the witnesses all relate to an offence against an individual. Commission of such offence, even habitually, would not affect the public tranquillity or even the tempo of life. The orders of detention could not, therefore, have been based on such material. In support of his contentions, he has relied upon the judgments of the Hon’ble Supreme Court in the matters of Vijay Narain Singh v. State of Bihar & Ors., AIR 1984 SC 1334 and of Rasidmiya @ Chhava Ahmedmiya Shaikh v. Police Commissioner, Ahmedabad & Anr., AIR 1989 SC 1703 : 1990 (1) GLR 489 (SC) and of Mustakmiya Jabbarmiya Shaikh v. Commissioner of Police, Ahmedabad City & Anr., 1995 (2) GLR 1268 and of Smt. Tarannum v. Union of India & Ors., JT 1998 (1) SC 486. He has also relied upon judgments of this Court in the matters of Hafijuddin Fazluddin Kazi v. Commissioner of Police, Ahmedabad City & Ors., 1992 (2) GLR 1332 and of Dhirubhai Ramsinhbhai Bhanvad v. State of Gujarat & Ors. (Special Civil Application No. 8050 of 1998, decided on 11th February, 1999 : Coram :- Mr. Justice A. L Dave) and of Saberaben Yusuf Memon v. State of Gujarat & Ors. (Special Civil Application No. 8994 of 1997, decided on 18th June, 1998 : Coram : Mr. Justice K. R. Vyas).
5. In the matter of Vijay Narayan Singh (supra) amongst other questions, the Court was considering who can be said to be a habitual offender. The majority view was that for bringing a person within the mischief of Section 2(c) of the Act, he must have been alleged to have committed offence punishable under Chapter XVI or XVII of I.P.C. or under Chapter V of the Arms Act. The Court held that the term ‘habitual’ connotes repetitive action. Such action should be of the same nature i.e., unless a person is shown to have committed
similar nature of offence/s repetitively, he cannot be said to be a habitual offender.
6. In the matter of Rasidmia Shaikh (supra), the Court held that, ‘what the Section requires is that to bring a person within that definition, it must be shown that he is habitually committing or attempting to commit or abetting the commission of offences enumerated therein.’ On the facts of the said case, the Court found that the detenu was alleged to have committed just one offence of the nature enumerated in Section 2(c) of the Act. Besides, the allegations made in the grounds of detention were too general and vague, without referring to any specific incident or registration of any case thereof. The Court held that the solitary incident was hardly sufficient to conclude that the detenu was habitually committing or attempting to commit or abetting the commission of offence.
7. In the matter of Mustakmiya Jabbarmiya Shaikh (supra), once again, the Court had an occasion to consider who can be said to be a ‘dangerous person’. The Court, considering the relevant provisions of the Act and its earlier judgments held that, “…it, therefore, necessarily falls, 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 abetting the commission of offences which are punishable under Chapter XVI or XVII of I.P.C. or under Chapter V of the Arms Act and that a single or isolated act falling under Chapter XVI or XVII of I.P.C. or Chapter V of the Arms Act cannot be characterised as a habitual act as defined under Section 2(c) of the Act.” The Court further considered the statements of the witnesses relied upon by the detaining authority and held that it was difficult to comprehend that they were the incidents involving the ‘public order’.
8. In the matter of Smt. Tarannum (supra), the detenu and her companion were alleged to have looted gold ornaments, watches and cash amount of Rs. 1,30,000/- from the house of one Vijay Chaudhary by wielding knives and pistols. The said and the other incidents relate to the main incident referred to in the grounds of detention were held to be relevant to law and order problem and not prejudicial to maintenance of ‘public order’.
9. In the matter of Hafisuddin Fazluddin Kazi (supra), this Court has followed the judgment of the Supreme Court in the matter of Rasidmia Shaikh (supra). The Court held that, ‘the singular criminal case did not bring the detenu within the meaning of ‘dangerous person’ as defined in Section 2(c) of the Act.’ The Court also referred to the statements made by the witnesses before the sponsoring authority. The Court found that the allegations made in the said statements were too general and broad and could not have been relied upon for reaching the subjective satisfaction. The specific incident narrated by the witness did not disclose the dates and the time of the respective incidents. The Court, therefore, held that, ‘it, therefore, becomes clear that the Detaining Authority could not have arrived at the subjective satisfaction on the basis of the above said four statements…..’. In the matter of Dhirubhai Ramsinhbhai
Bharwad (supra) a solitary offence was registered against the detenu. The Court found that solitary offence registered against the detenu was followed by recording statements of witnesses not followed by any subsequent registration of offences. The Court observed that, ‘it is apparent that recording of statements at a later stage indicates that all the subsequently alleged offences indicate similar to a proportion that raises doubt.’
10. In the matter of Saberaben Yusuf Memon (supra) also this Court held that, ‘…even if allegations made against the detenu were taken on their face value, it is difficult to comprehend that they were the incidents involving public order.’
11. For bringing a person within the four corners of the meaning of ‘dangerous person’ as defined in Section 2(c) of the Act, the detenu must be shown to be a ‘habitual offender’. It must also be shown that the detenu habitually commits or attempts to commit or abets commission of offence punishable under Chapter XVI or XVII of the Indian Penal Code or Chapter V of the Arms Act. The definition is clear and unambiguous and in view of the judgments referred to hereinabove, it does not warrant further deliberation. The question is whether it is registered offence alone which can be taken into consideration or the incidents stated by the witnesses, not followed by a formal complaint can also be relied upon. None of the above referred judgments deals with this question. In my view, if the statements are recorded by the sponsoring authority and are believed to be true and the detaining authority has recorded his subjective satisfaction regarding trustworthiness of such witness and the statements made by them, there is no reason why such incidents should not be relied upon for arriving at the subjective satisfaction in respect of a person being a ‘dangerous person’.
12. In the present case, the offence registered against the petitioners and the two incidents narrated by the witnesses disclose the commission of offences of similar nature in the same manner. Besides, all the said three offences are alleged to have been committed in the month of August, 1998 i.e., they are committed in quick succession. The three offences of a similar nature punishable under Chapter XVI and XVII of the I.P.C. and Chapter V of the Arms Act would certainly make the petitioners habitual offenders and as a consequence, the ‘dangerous person’. The witnesses’ statements have been recorded on 27th August, 1998 and 30th August, 1998 and the incidents narrated by them are of 10th August, 1998 and 11th August, 1998. The incidents for which the offence has been registered occurred on 21st August, 1998. The witnesses cannot be said to have referred to the incident at a belated stage nor the incidents can be said to be ancient and/or stale without a live link with the registered offence.
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13. I am, therefore, of the view that the petitioners are habitual offenders and consequently the dangerous person. Besides, their activities were detrimental to the maintenance of public order and unless prevented, the petitioners were likely to repeat the similar offences.
14. Mr. Dave, at this stage has also submitted that father of the petitioner in Special Civil Application No. 7809 of 1998 had on 15th September, 1998 made a representation against the order of detention. It is, however, not known whether the said representation has been considered and decided or not. Similarly, the writ petitioners in Special Civil Application Nos. 8625 of 1998 and 8629 of 1998 had made representations on 8th October, 1998 and the same too have not been decided expeditiously. Upon perusal of the petitions, I find that the submissions are not supported by necessary averments. This, having been brought to the notice of the learned Advocate, he has promptly responded that he can still amend the petition. In absence of necessary averment, the respondents are not expected to answer the submission. However, Mrs. Punani, learned A.G.P., after perusal of the records submitted that the representation made by the writ petitioners in Special Civil Application Nos. 8625 of 1998 & 8629 of 1998 were considered expeditiously and were decided on 18th October, 1998. Upon perusal of the files, I find that the said representations have been attended to immediately and a formal decision has been taken on 18th October, 1998. The said representations are considered and decided expeditiously without unnecessary loss of time. In respect of the writ petitioner in Special Civil Application No. 7809 of 1998, she has submitted that the original file is today not available to her, therefore, she is unable to answer the contention. Be that as it may, since the said contention has not been raised in the petition, it is not necessary to answer the same either.
15. In above view of the matter, the impugned orders of detention made against the respective petitioners do not call for interference. Petitions are, therefore, dismissed. Rule nisi issued in each of the matters is discharged.
16. Rule discharged.