ASHOK AMBU PARMAR v. COMMISSIONER OF POLICE,vadodara
1986-09-25
A.P.RAVANI, P.R.GOKULAKRISHNAN, S.B.MAJMUDAR
body1986
DigiLaw.ai
P. R. GOKULAKRISHNAN, J. ( 1 ) THIS matter comes up before us by reference made by the Division Bench consisting of D. H. Shukla and one of us A. P. Ravani JJ. According to the learned Judges who referred the matter the definition of dangerous person contained in sec. 2 (c) of the Gujarat Prevention of Anti-Social Activities Act 1985 requires consideration by a larger Bench since the learned Judges who referred the matter thought that the pronouncements of Division Benches of our High Court regarding the definition of dangerous person occurring in the Act requires reconsideration. Though it is not necessary for us to go into the facts of the case which are the subject matter of Special Criminal Application No. 225 of 1986 for the completion of the record we may state a few facts. ( 2 ) THE Commissioner of Police Vadodara City Vadodara passed a detention order on 28/10/1985 detaining the petitioner by name Ashok Ambu Parmar under the provisions of the Prevention of Antisocial Activities Act 1985 The petitioner has challenged the legality and validity of the detention order on various ground. In this case the petitioner is detained on the ground that he is a 64dangerous person as defined under sec. 2 (c) of the Act. It is the say of the petitioner that as per the definition of dangerous person occurring in sec. 2 of the Act a person either by himself or as a member or leader of a gang should have during a period of three successive years habitually committed or attempted to commit or abetted 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 Interpreting this definition the petitioner submitted that there must have been commission of offences as contemplated in sec. 2 (c) on every successive year prior to the passing of the detention order. It is submitted by the petitioner that if there is no offence committed in any one of these successive years a person cannot be termed as a dangerous person and as such the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 cannot be invoked.
2 (c) on every successive year prior to the passing of the detention order. It is submitted by the petitioner that if there is no offence committed in any one of these successive years a person cannot be termed as a dangerous person and as such the provisions of the Gujarat Prevention of Anti-Social Activities Act 1985 cannot be invoked. In support of his contention the petitioner cited the Division Bench judgments rendered in (1) Special Criminal Application No. 656 of 1985 (Ayubkhan alias Papu Navabkhan Pathan v. State of Gujarat and Ors.) reported in 27 (1) 1986 GLR 543 (2) Special Criminal Application No. 873 of 1985 decided on 10/01/1986 by B. K. Mehta and B. S. Kapadia JJ. (Hansraj Shivgopal Trivedi v. Commissioner of Police Ahmedabad and Ors.) (3) Special Criminal Application No. 1077 of 1985 decided on 5/02/1986 by B. K. Mehta and B. S. Kapadia JJ. (Mehboob Ibrahim Patel v. B. K. Jha Commissioner of Police Ahmedabad and Ors. reported in 1986 (2) GLR 1358 ) (4) Special Criminal Application No. 1094 of 1985 decided on 21/02/1986 by G. T. Nanavati and R. J. Shah JJ. (Amrat Sabur alias Bavabhai Solanki v. Commissioner of Police Ahmedabad and Ors. Unreported Judgment published in 1986 GLT 241) (5) Special Criminal Application No. 1189 of 1985 decided on 17/03/1986 by G. T. Nanavati and R. J. Shah JJ. (Pathu Devayat Kathi v. State of Gujarat and Ors ) (6) Special Criminal Application No. 41 of 1986 decided on 18/03/1986 by G. T. Nanavati and R. J. Shah JJ. (Narayan Vanmalidas Valand v. Commissioner of Police Vadodara Unreported Judgment published in 1986 GLT 233) (7) Special Criminal Application No 1036 of 1985 decided on 20/03/1986 by G. T. Nanavati and R. J. Shah JJ. (Jusab Umar Sindhi v. State ). All these Division Benches are of the uniform opinion that to come under the mischief of definition of Dangerous person occurring in sec.
(Jusab Umar Sindhi v. State ). All these Division Benches are of the uniform opinion that to come under the mischief of definition of Dangerous person occurring in sec. 2 (c) a person either by himself or as a member or leader of a gang during a period of three successive years should have habitually committed or attempted to commit or abetted the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Panel Code or any of the offences punishable under Chapter V of the Arms Act 1959 In short the learned Judges held in these decisions that the offences should have been committed in all the three years preceding the date of detention order. Hence it is clear from these judgments that if there is no commission of any of the offences mentioned in sec. 2 (c) for any one of the three years prior to the order of detention the person cannot be termed as a dangerous person and as such no order of detention can be passed against him. The Division Bench consisting of D. H. Shukla and A. P. Ravani JJ. in Special Criminal Application No. 225 of 1986 felt difficulty in accepting this interpretation of the definition dangerous person occurring in sec. 2 (c) and as such the matter has been placed before this larger Bench to reconsider the interpretation given by the above said Division Benches. ( 3 ) MR. Bharat C. Dave the learned counsel appearing for the petitioner read the above referred Bench decisions and contended that the interpretation given by the Benches referred above are correct and they have to be upheld. Mr. J. G. Shah intervening in this case supported the above said Bench decisions and contended that even though the period mentioned in sec. 2 (c) has to be taken as one unit of time the reference to every three successive years makes it clear the offence ought to have been committed in every year. Reading the Ordinance which preceded the Act Mr. Shah contended that the sentence during a period of three successive years is not in the Ordinance and that these words have been inserted only in the Act in order to stress that a person to come under the mischief of sec. 2 (c) should have committed offences every year mentioned in this section. Mr.
Shah contended that the sentence during a period of three successive years is not in the Ordinance and that these words have been inserted only in the Act in order to stress that a person to come under the mischief of sec. 2 (c) should have committed offences every year mentioned in this section. Mr. Shah also read the word during occurring in this definition section and submitted that there ought to have been commission of offence during the period of every year mentioned in the section. We shall refer to the decisions cited ky Mr. Shah in the course of our discussion in this judgment ( 4 ) THE learned Advocate General appearing for the State submitted that the word during occurring in sec. 2 (c) will not indicate that the offence should have been committed throughout the period. According to the learned Advocate General the period given in the definition section has to be taken as one unit of time and if that be so the words person occurring in this section will only indicate that during that period the offence mentioned in this definition should have been committed. Reading such of those definitions where the words habitually commits occur the learned Advocate General submitted that the intention of the legislature is that there must have been commission of offence in the said unit of time which is fixed as three years period in this Act. In support of his contention the learned Advocate General read the Objects and Reasons for bringing out the Ordinance the preamble of the Act and also the method of interpreting statutory provisions as enunciated by Francis Bennion in his book entitled Francis Bennion Statutory Interpretation. We will consider these relevant materials during our discussion hereunder. ( 5 ) THE Gujarat Prevention of Anti-Social Activities Act 1985 was preceded by an Ordinance called The Gujarat Prevention of Anti- Social Ordinance.
We will consider these relevant materials during our discussion hereunder. ( 5 ) THE Gujarat Prevention of Anti-Social Activities Act 1985 was preceded by an Ordinance called The Gujarat Prevention of Anti- Social Ordinance. This was promulgated by the State of Gujarat on 27/05/1985 The statement of objects and Reasons for promulgating the Ordinance is as follows:it is noticed by the State Government that the activities of certain anti-social persons who in Common parlance are known in the society as boot-leggers drug offenders goondas (dangerous persons) immoral traffic offenders and property grabbers cause feeling of insecurity among the general public as also grave and widespread danger to the life and property of the public and thereby affect the maintenance of public order in the State. With a view to maintaining the public order in the State it is considered necessary to enact a special legislation for the detention of such anti-social persons. Subsequently the Act came to be enacted called The Gujarat Act No. 16 of 1985. It was published in the Gujarat Government Gazette after receiving the assent of the Governor on 2/08/1985 The preamble of this Act states:an Act to provide for preventive detention of boot-leggers 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. Thus it is clear that the purpose of the Act is to curb the anti-social activities of certain types of individuals only. One such individual is the person who comes under the definition of dangerous person. The others are boot-leggers drug offenders immoral traffic offenders and property grabbers. In this case we are concerned with the definition of dangerous person which occurs in sec. 2 (c ). ( 6 ) IN the Ordinance the definition of the dangerous person was given as follows:2 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 or Chapter XXII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act 1959this definition given in the Ordinance was inserted in the Act with certain modifications.
Sec. 2 (c) of the Act No. 16 of 1985 reads as follows:2 In this Act unless the context otherwise requires (c) 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 commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of Arms At 1959thus we are able to see that there is an addition of a phrase in the Act which runs as follows:during a period of three successive years. Reading the Statement of Objects and Reasons for promulgating the Ordinance and also the preamble to this Act it is clear that the Legislature wanted to identify an individual who can be said to be a dangerous person rather than defining the time factor within which the dangerous activities should be carried on. If we read the various definitions occurring in this Act for bootleggers in sec. 2 (b) for drug-offender in sec. 2 (f) for immoral traffic offender in sec. 2 (g) and for property grabber in sec. 2 (h) it is clear the time factor is not there. The Legislature in order to identify a dangerous person who habitually commits such offences thought it fit to prescribe a period as a unit of time. That is why we find in this definition 2 (c) the phrase a period of three successive years instead of the period of three successive years. Further is nothing in this phrase a period of three successive years to denote a period of each successive year. Underline is given by us in order the emphasise the words used. Deliberately the Legislature has used a and has also omitted to use each in the phrase a period of three successive years. This also clearly brings out the intention of the Legislature in treating this period as one unit of time and it will be too much for us to interpret by stating that the offence ought to have been committed in each of such three years. ( 7 ) COMING to the meaning of the word during from the Dictionary we are able to see the following meanings: (1) Throughout the continuance of; (2) At some point in the duration of.
( 7 ) COMING to the meaning of the word during from the Dictionary we are able to see the following meanings: (1) Throughout the continuance of; (2) At some point in the duration of. (The Concise Oxford Dictionary) Considering the fact that the object of the Legislature is to identify the dangerous person who habitually commits the offences mentioned in sec. 2 (c) the meaning at some point in the duration of fits in more than the meaning throughout the continuance of. The time factor mentioned in this definition is only the unit of time as a whole and during that unit of time if the offences have been committed at some point of time habitually the mischief of sec. 2 (c) will be attracted. If we give any other meaning to the words during a period of occurring in this section than the one we have stated above then the section will become unworkable and will lead to a lot of anomalies. It is too much to expect that the offence should have been committed in every year mentioned in this section to attract the mischief of the definition of dangerous person. If that interpretation is given logically it can also be stretched by saying that the offence should be committed every day if not every minute of the period of three successive years. To avoid such absurd interpretation the one we have referred above which is in consonance with the objects and reasons for promulgating the Act by the Legislature is possible. Further the introduction of the phrase during a period of three successive years in sec. 2 (c) of the Act can be explained by stating that this phrase is introduced with a view to restrict the detaining authority from taking a longer period into account and at the same time making it clear to all concerned that it will be open to the detaining authority to take into account the activities of the person during the entire span of three successive years. This was necessary for the Legislature because there are decisions in which even instances prior to one year of the order of detention have been held to be stale by the Courts. ( 8 ) THE word successive occurring in sec. 2 (c) in our opinion goes with the unit of time and not with the commission of crime.
This was necessary for the Legislature because there are decisions in which even instances prior to one year of the order of detention have been held to be stale by the Courts. ( 8 ) THE word successive occurring in sec. 2 (c) in our opinion goes with the unit of time and not with the commission of crime. The phrase three successive years is used only with a view to point out the time limit which is to be taken into consideration by the detaining authority. The meanings given in the Concise Oxford Dictionary for the word successive are as follows:following one after another in uninterrupted succession running consecutive. This word successive as we have observed goes with the unit of time and not with the commission of crime and if that be so it cannot be interpreted that to come under the definition of dangerous person a person should have committed the offences mentioned in the definition in each year. If this phrase three successive years is not taken as indicating the unit of time absurd results will follow by allowing a dangerous person to get out of the purview of this Act solely on the ground that in some of such successive years that person has not committed the offence mentioned in the definition sec. 2 (c ). The Court should not apply the literal meaning to the words regardless of the consequences. It is a cardinal principle that if the words are capable of more than one meaning the Court must accept that meaning which will be in consonance with the spirit and purpose for which such an enactment has been made. In the book cited by the learned Advocate General entitled Francis Bennion Statutory Interpretation it has been succinctly observed as follows:in interpreting an act of Parliament it is not in general a true line of construction to decide according to the street letter of the act; but the courts will rather consider what is its fair meaning and will expound it differently from the letter in order to preserve the intent. There are many so-called rules of construction that courts of law have resorted to in their interpretation of statutes but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention. It is the basic principle of legal policy that law should serve the public interest.
There are many so-called rules of construction that courts of law have resorted to in their interpretation of statutes but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention. It is the basic principle of legal policy that law should serve the public interest. The Court when considering in relation to the facts of the instant case which of the opposing constructions of the enactment would give. effect to the legislative intention should presume that the legislator intended to observe this principle. It should therefore strive to avoid adopting a construction which is in any way adverse to the public interest. We are in complete agreement with the above said principles. ( 9 ) IN giving the words their ordinary meaning if we are faced with extraordinary results which cannot have been intended by the Legislature we then have to move on to the second stage in which we re-examine the words. In case we are faced with two possible constructions of legislative language we have to look to the results of adopting each of the alternatives respectively for the purpose of upholding the true intention of the Legislature. The construction which promotes the objective for which the enactment is intended must be adopted. Our interpretation must be keeping with the purpose for which the legislation was promulgated. In the above said light if we examine the purpose for which Gujarat Act No. 16 of 1985 is promulgated it will be clear that it is promulgated for the purpose of spotting out dangerous persons apart from other category of persons who have to be taken into custody in order to prevent their anti-social and dangerous activities prejudicial to the maintenance of the public order. If that be so the phrase a period of three successive years mentioned in sec. 2 (c) spells out the unit of time for the purpose of spotting out the dangerous person. Hence to interpret this section literally by stating that only such of those persons who have committed the offences mentioned in this section in each of these three years can be construed as dangerous persons will go against the spirit and purpose for which this enactment has been made. This view is fortified by the decision cited by Mr. J. G. Shah himself.
This view is fortified by the decision cited by Mr. J. G. Shah himself. In one of the decisions cited by the learned counsel which is Bhiayalal Sharma and Others v. Sales-Tax Officer Hardoi and Another reported in XXVI STC 458 the Allahabad High Court had occasion to consider the words during the course of an assessment year in sec. 18 (2) of the U. P. Sales Tax Act. The Bench of the Allahabad High Court held:during the course of an assessment year in sec. 18 (2) would mean the whole of that year. Therefore if a business is commenced at any point of time in that year it will be covered by the sub-section. A business commenced from 1st April will not be outside the purview of the sub-section. In yet another decision in the case of State v. Kanhiyalal Jain reported in XXXII STC 21 a Bench of the High Court of Orissa had occasion to consider the expression period in sec. 12 (8) in the Orissa Sales Tax Act. The Orissa High Court observed in that case;the expression period in sec. 12 (8) of the Orissa Sales Tax Act 1947 cannot be construed as restricted to a quarter nor can it be said to relate to the whole year for which accounts are maintained by the assessee. In common parlance. the meaning of the word period would be a duration of time. The learned Advocate General also cited the decision of the High Court of Australia in the case of Juanita Gough v. Errol Hunter Gough reported in 95 CLR 369 wherein the High Court had occasion to consider sec. 16 (f) of Matrimonial Causes Act 1899 In that case the High Court of Australia had occasion to consider as to when a wife can present a petition to dissolve the marriage. The provision that was considered in that case was that the wife with three years domicile in New South Wales could present a petition praying that her marriage may be dissolved on the ground that during one year previously her husband has repeatedly assaulted and cruelly beaten the petitioner. The High Court observed that the word during occurring in that section suggests that a time limit is prescribed within which the act of cruelty ought to have been committed.
The High Court observed that the word during occurring in that section suggests that a time limit is prescribed within which the act of cruelty ought to have been committed. It further observed that the primary purpose for introducing the word must have been to put a limit of time to the period within which the facts must occur that constitute the ground of divorce. The High Court was of the opinion that such act of cruelty need not be continuous. Referring to the word repeatedly occurring in that section the High Court observed that such a word has been introduced due to the association of the idea suggested by the word repeatedly. Proceeding further the High Court of Australia observed:the change of language from within to during that period there looks to be rather instinctive than designed or deliberate. Probably it was due to the association of the idea suggested by the word repeatedly. If the words had been in the course of that period the meaning would have been conveyed. The better mode of interpreting and applying sec 16 (f) seems to be to understand it as limiting the period within which you must find acts satisfying the description to twelve months and as requiring that there shall be series of such acts forming separate incidents or examples of conduct on the husbands part. Such a series itself implies that the acts are spread in point of time. But it is difficult to suppose that they must be spread over the whole twelve months. It would mean that at neither end of the period nor any where within it could there be a substantial interval in which the petitioner enjoyed a suspension of the cruel beatings or succeeded in avoiding them. This decision also clearly supports the interpretation which we are placing on the phrase during a period of three successive years. The learned Advocate General also brought to our notice the Ordinance issued by the Governor of Gujarat on 24/07/1986 In and by the said Ordinance the phrase during a period of three successive years has been deleted from sec. 2 (c ). The Statement of Objects and Reasons for deleting this phrase reads as follows:according to the existing definition of dangerous person in clause (c) of sec.
2 (c ). The Statement of Objects and Reasons for deleting this phrase reads as follows:according to the existing definition of dangerous person in clause (c) of sec. 2 of the Gujarat Prevention of Anti-Social Activities Act 1985 a person would fall within that definition only if he habitually commits or attempts to commit or abets the commission of the offences mentioned therein during a period of three successive years. However in the case where persons habitually commit offences mentioned in the said clause (c) but the requirement that offences should pertain to a period of three successive years is not fulfilled they cannot be detained under the said Act. It is therefore considered necessary to do away with that requirement by deleting the words during a period of three successive years appearing in the said clause. The decisions referred in paragraph supra rendered by various Division Benches of our High Court have literally interpreted the phrase during a period of three successive years and have held that in each of the said three years the offence should have been committed to come under the mischief of dangerous person as defined in sec. (c) This his necessitated the Government to issue the Ordinance deleting those words since its intention is to detain the dangerous persons who have committed such offences within the unit of time prescribed in that section. If our interpretation given in this decision were to be there there would not have been any necessity to spell out the intention of the Government by the Ordinance referred above. Whatever it may be the intention of the Legislature is clear to the effect that they were particular in detaining the dangerous persons who have committed such offences defined in sec. 2 (c) within the said unit of time mentioned therein. This intention according to our interpretation made in this judgment can even be spelt out from the phrase during a period of three successive years occurring in sec. 2 (c) as it originally stood. 10 In the light of the foregoing discussion the correct interpretation that has to be placed for the phrase during a period of three successive years occurring in sec.
2 (c) as it originally stood. 10 In the light of the foregoing discussion the correct interpretation that has to be placed for the phrase during a period of three successive years occurring in sec. 2 (c) of Act No. 16 of 1985 is that it refers only to the unit of time and will take in such of those persons as dangerous persons who have habitually committed or attempted to commit or abetted 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 at any time during the said period of three years before the passing of the detention order. It is not necessary that the offences should have been committed in each of these years as wrongly construed by the various Division Benches of our High Court in the above cited decisions. The reference is answered in the above said terms. The Special Criminal Application will now be placed before the Division Bench for disposal in the light of our interpretation of sec. 2 (c) of the Act No. 16 of 1985. Reference answered. .