DIPAKBHAI MANGABHAI SOSA v. COMMISSIONER OF POLICE,surat CITY
1998-12-30
D.C.SRIVASTAVA
body1998
DigiLaw.ai
D. C. SRIVASTAVA, J. ( 1 ) IN this writ petition under Art. 226 of the Constitution of India, the prayer is for quashing the detention order dated 27-3-1998 passed by the Commissioner of Police. Surat. under Sec. 3 (2) of the Gujarat Prevention of anti-Social Activities Act, 1985 (for short "pasa Act") by a writ of certiorari and for immediate release of the petitioner from illegal detention through a writ of" habeas corpus. ( 2 ) BRIEF facts are that the detaining Authority, viz. , the Police Commissioner. Surat considered in the grounds of detention three offences against the petitioner under various sections of the Arms Act as well as various sections of the Indian penal Code. He also considered statements of three witnesses who requested that their names and addresses be not disclosed on account of their fear from the petitioner. Upon considering the aforesaid material and alternative remedies the detaining Authority found that the petitioner is a dangerous person and his activities were prejudicial for maintenance of public order. Other alternative remedies were not found efficacious. Accordingly, the impugned order was passed which is under challenge in this writ petition. ( 3 ) NUMBER of" grounds of attack are found in the writ petition but in the course of arguments learned Counsel for the petitioner pressed only four points, viz. , that the activities of the petitioner do not amount to disturbance of public order, secondly the detention order was passed mechanically and there was non-application of mind by the detaining Authority, thirdly that the names and addresses of" the companions of the petitioner are not disclosed in the grounds of detention hence the petitioner was prevented from making effective representation in his defence which in turn has violated Art. 22 (5) of the Constitution of India and last that the confidential witnesses have not stated the exact place of occurrence as a result of which the petitioner could not make effective representation and he was prevented from taking plea of alibi. Other grounds including non-consideration of representation were not pressed by the learned Counsel for the petitioner. ( 4 ) I do not find any force in the contention that non-disclosure of names and addresses of the companions of the petitioner has deprived fundamental right of the petitioner under Art. 22 (5) of the Constitution of India.
Other grounds including non-consideration of representation were not pressed by the learned Counsel for the petitioner. ( 4 ) I do not find any force in the contention that non-disclosure of names and addresses of the companions of the petitioner has deprived fundamental right of the petitioner under Art. 22 (5) of the Constitution of India. Such disclosure of names of companions of the petitioner would have been necessary if the confidential witnesses would have told the names of companions to the Sponsoring Authority or to the detaining Authority or when the detaining Authority himself knew the names of companions of the petitioner. If the witnesses did not know the names of companions of the petitioner nor the Sponsoring Authority nor the detaining authority, it was impossible for the detaining Authority to disclose the names of companions of the petitioner. It was not the function of the detaining Authority to cross-examine the confidential witnesses and collect further information regarding names and addresses of the companions of the petitioner. The role assigned to the companions of the petitioner was disclosed by the witnesses and from that narration the detaining Authority prepared the grounds of detention. Consequently, it cannot be said that on the facts and circumstances of the case non-disclosure of names of companions of the petitioner has deprived the petitioner of a valuable right under art. 22 (5) of the Constitution of India. The case of A. C. Banerjee v. State of West bengal, reported in 1972 (1) SCC 636 relied upon by the learned Counsel for the petitioner is distinguishable. Inter alia in this case the particulars of the gang leader or members of the gang on the other side with whom the petitioner entered in a clash was not disclosed, whereas in the case before me it is disclosed that the petitioner threatened the witnesses, their names were available to the detaining authority, but he did not disclose it on the ground of claiming privilege under Sec. 9 (2) of the PASA. Thus. it was not the case where the person with whom the petitioner clashed was not known. The members of the public were likewise not known to the witnesses. Consequently, their names also could not be disclosed.
Thus. it was not the case where the person with whom the petitioner clashed was not known. The members of the public were likewise not known to the witnesses. Consequently, their names also could not be disclosed. ( 5 ) I also do not find merit in the contention that because confidential witnesses did not disclose the exact place of incident it has deprived the petitioner of his right of making effective representation and the petitioner was prevented from taking the plea of alibi. Learned A. G. P. pointed out from the original statement of witness no. 1 that the place of incident was Gota Talavadi area in Surat. It seems that the detaining Authority did not mention this place of incident in the extract of statement of witness No. 1. However, the exact place of occurrence in the statement of 2nd and 3rd witnesses is not to be found in the original statement of witness, but in the extract of statements it has been clarified that when the second witness was passing through Surat city area that the incident took place. The second witness also stated to the same effect. However, plea of alibi could not be denied to the petitioner inasmuch as the date of incident was disclosed by these two witnesses as 8-3-1998 and 25-2-1998 respectively. The petitioner could have very well taken the plea of alibi by pleading that he was not in Surat city on these two days. The details of his activities have been given in the grounds of detention. As such this ground is also insufficient for rendering the detention order illegal and invalid. ( 6 ) THE third contention has been that the detention order was passed mechanically and it suffers from the vice of non-application of mind. It was pointed out that the detaining Authority in the second para of the grounds of detention has mentioned that three offences were committed by the petitioner under Chapters XVI and XVII of the Indian Penal Code and Chapter V of the Arms Act whereas only in two cases offences were committed under the Indian Penal Code and that too these offences were not punishable under Chapter XVI and XVII of the I. P. C. This Court will not enter in exercise of finding fault with the detention order.
There is no obligation on the part of the detaining Authority to disclose under what Chapters offences committed by the petitioner are punishable. It is only for deciding whether the petitioner is a dangerous person or not that the detaining Authority has to consider within the meaning of Sec. 2 (c) of the PASA that the offences punishable either under Chapter XVI or under Chapter XVII of the I. P. C. or under Chapter V of (he Arms Act were committed or not. If relevant sections under which the offences were committed were mentioned in the grounds of detention, this Court can find out under what Chapter of the Indian Penal Code the offences were committed. In the absence of statutory obligation on the part of the detaining Authority to disclose the Chapters of the Indian Penal Code under which the offences were committed the detention order cannot be said to be invalid, because such disclosure was not made or that such recital was reckless or was made under some mistake. The first offence is evidently under Chapter V of the Arms Act. The second offence was under sec. 452, 394. 506 (2) and 114 of the I. P. C. The third offence is under Sec. 385 of the I. P. C. This was sufficient disclosure and on this ground it cannot be said that the impugned order suffers from the vice of non-application of mind. These offences are punishable under Chapter XVII of the I. P. C. and as such the so-called omission cannot invalidate the order. Moreover, if Chapter XVI of the I. P. C. was mentioned in the opening portion of the grounds of detention and no offence under this section was committed the petitioner cannot be said to have been prejudiced in any manner. It would be going too far to accept the contention that the petitioner committed offences punishable under Chapter XVI of the I. P. C. . but those materials were not disclosed by the detaining Authority. A mere mistake in the detention order is not to be equated with intentional suppression of material facts. This is a case of sheer omission on the part of the detaining Authority that Chapter XVI of the I. P. Code was mentioned, and not that any deliberate concealment of offences punishable under chapter XVI of the I. P. Code was made.
This is a case of sheer omission on the part of the detaining Authority that Chapter XVI of the I. P. Code was mentioned, and not that any deliberate concealment of offences punishable under chapter XVI of the I. P. Code was made. As a consequence thereof it cannot be said that the materials showing commission of offence punishable under Chapter xvi of the I. P. Code were not supplied to the petitioner nor it can be accepted that on such hyper-technical contention the fundamental right of the petitioner was in any way affected. If no offence punishable under Chapter XVI of the I. P. Code was committed by him the detaining Authority could not have furnished any material for the offences punishable under this Chapter. ( 7 ) LAST contention has been that the activities of the petitioner were not prejudicial for maintenance of public order and as such even if he was described and treated as dangerous person he could not be preventively detained. ( 8 ) IN view of repetition of commission of offences punishable under Chapter xvii of the I. P. Code the petitioner was rightly considered to be a dangerous person within the meaning of Sec. 2 (c) of the PASA. Learned Counsel for the petitioner contended that even then the activities of the petitioner were not prejudicial for maintenance of public order and at the most the incidents narrated by the three witnesses indicate that situation for maintenance of law and order only was created and as such preventive detention was hardly called for. Hence, the impugned order is illegal. Three cases were cited by the learned Counsel in support of his contention. The case of Smt. Tarannum v. Union of India, reported in AIR 1998 SC 1013 to my mind is distinguishable on facts. In this case distinction between law and order and public order was explained and the case of Smt. Anguri Devi v. Union of India, reported in 1989 (1) SCC 385 was referred by the Apex Court. It was, however. a case under National Security Act. The provisions of the National Security Act are not identical with the provision of PASA insofar as activities which can be deemed to be prejudicial for maintenance of public order.
It was, however. a case under National Security Act. The provisions of the National Security Act are not identical with the provision of PASA insofar as activities which can be deemed to be prejudicial for maintenance of public order. Under Sec. 3 (2) of the national Security Act, 1980 only this much is provided that the Central or State government, 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 or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary to make an order directing that such person be detained. Explanation to sub-sec. (2) of Sec. 3 is confined to acting in any manner prejudicial to maintenance of supplies and services essential to the community. According to this explanation this does not include acting in any manner prejudicial to maintenance of supplies of commodities to the community as defined in explanation to Sec. 3 (1) of the Prevention of Black Marketing Act, Beyond this sec. 3 (2) of National Security Act does not provide any deeming provision under which the activities can be said to be prejudicial for. maintenance of public order. As against this under Sec. 3 (4) of PASA-it is provided by a deeming friction of law that a person shall be deemed to be acting in any manner prejudicial to maintenance of public order when such person is engaged in or is making preparation for engaging any activity whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber which affects adversely or is likely to affect adversely the maintenance of public order. A further deeming provision of activities being prejudicial to maintenance of public order is provided in Explanation to sub-sec. (4) of Sec. 3 of the PASA which provides that for the purpose of this section public order shall be deemed to have been affected adversely or shall be deemed to be 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 and harm. danger or alarm or feeling of insecurity among the general public or any section thereof or grave or widespread danger to life, property or public health.
danger or alarm or feeling of insecurity among the general public or any section thereof or grave or widespread danger to life, property or public health. ( 9 ) THUS, according to this explanation if the activity of the offender is such which is likely to cause danger or alarm or feeling of insecurity either amongst general public or in any section of public or it is likely to cause grave or widespread danger to life. property or public health such activities shall be deemed to be prejudicial for maintenance of public order. ( 10 ) KEEPING in view this explanation if the incidents nan-anted by the three witnesses are examined it can be said that the activities of the petitioner were certainly of such nature which caused alarm or danger as well as feeling of insecurity amongst the persons and in the mind of the witnesses who were present at the time of incident. ( 11 ) IN the first incident dated 10-2-1998 which took place between 10-00 to 10-15 p. m. the petitioner along with his two associates prevented the witness, showed rampuri knife to him and asked him to part with whatever money he was having. The witness refused and thereupon the petitioner caught hold of him. The witness shouted for help. Passers-by on the road, vehicle owners, vehicle operators, larrigallwala collected at that spot. Four, out of such persons, came to save this witness and then on the extortion of the petitioner his associates took out knife and rushed towards people. Due to this incident the shops in the vicinity were immediately closed, persons were afraid so also larri-gallawalas who collected at that spot. The witness was beaten, Rs. 200. 00 were taken from his pocket and then he was left with threat to kill him. This incident certainly created danger, alarm and feeling of insecurity amongst the persons who collected at the spot at the time of the incident and a signal was given that in late hours the petitioner can force any person to pan with his belongings. As such the people became afraid of moving on the road after 10-00 Oclock in the night. ( 12 ) THE second incident is also of similar nature.
As such the people became afraid of moving on the road after 10-00 Oclock in the night. ( 12 ) THE second incident is also of similar nature. The witness did not remember the exact date of incident, but he told from his memory that the incident took place on or about 8-3-1998 or a month before. The witness forgot the actual date of incident. According to him at 8-00 p. m. he was passing through Surat city when the petitioner stopped him at the point of knife. The knife was put on the abdomen of the witness and the witness was again asked to part with whatever amount he was in his pocket. The witness replied that he had no money. He was beaten by kicks and fists. The witness shouted for help. Passers-by on the road and nearby larri-gallawalas collected. Some of them came out to save the witness when the petitioner rushed towards them. Again due to fear persons took shelter here and there. Seeing this incident nearby shopsand larri-gallawalas were immediately closed and in the whole areas tense atmosphere was created, traffic was disrupted. The witness was having Rs. 300. 00 with him which were taken away by the petitioner with further threat not to inform the police else he would be killed. This incident is also akin to first incident narrated by the first witness. ( 13 ) THE third incident took place on 25-2-1998 at 8-00 p. m. The petitioner. at that time, went to the business place of the witness. He purchased some articles and was about to leave the business place without making any payment. The witness asked for payment, whereupon he was abused by the petitioner and was beaten by kicks and fists. Not only this. the articles lying in the business place of the witness were thrown outside. Witness shouted for rescue. Passers-by and nearby gallawalas collected. Some of them attempted to intervene to save the witness. On the exhortation of the petitioner his companions took out knife and rushed towards the mob. Again due to fear people ran here and there and took shelter at various places in the street whichever was found by them. Nearby larrigallas and shops were closed immediately and atmosphere of terror spread over the whole area, traffic was disrupted. .
On the exhortation of the petitioner his companions took out knife and rushed towards the mob. Again due to fear people ran here and there and took shelter at various places in the street whichever was found by them. Nearby larrigallas and shops were closed immediately and atmosphere of terror spread over the whole area, traffic was disrupted. . The threat was given to the witness that he would be killed and his business place would be set to fire. This incident read with previous two incidents make it clear that the activities of the petitioner were prejudicial tor maintenance of public order within the meaning of Explanation to Sec. 3 (4) of the PASA Act. ( 14 ) THE case of M. J. Shaikh v. M. M. Mehta. 1995 (3) SCC 237 : [1995 (2) glr 1268 (SC)1 cited by the learned Counsel for the petitioner is distinguishable on facts. Whether the activities of the petitioner in a particular case amount to disturbance of public order or not has to be considered in the light of the facts and circumstances of each case. The facts of the case under consideration are altogether different from the case of M. J. Shaikh (supra), hence it cannot be said that the activities of the petitioner were not prejudicial for maintenance of public order. ( 15 ) IN view of the aforesaid discussion, I find that none of the arguments advanced by the learned Counsel for the petitioner is capable of rendering the impugned order invalid. Consequently, the writ petition has no force and is liable to be dismissed. The petition is accordingly dismissed. .