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2020 DIGILAW 862 (GUJ)

NITINBHAI KARSHANBHAI SOLANKI v. STATE OF GUJARAT

2020-10-20

BELA M.TRIVEDI

body2020
JUDGMENT : 1. The instant petition has been filed by the petitioner – detenu challenging the legality and validity of the impugned order of detention dated 23.04.2020 passed by the respondent No. 2 under the provisions contained in the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as ‘the said Act’). 2. The petitioner – detenu having been allegedly involved in the three cases registered under the IPC and the three witnesses having made statements against the petitioner, the respondent No. 2 has passed the impugned order declaring him as a “dangerous person” within the meaning of Section 2(c) of the said Act and further holding that his activities are likely to adversely affect the maintenance of the public order. 3. It is sought to be submitted by the learned advocate Ms. Patel for the petitioner that all the three cases mentioned in the impugned detention order pertained to the individuals, and he could not be termed as a “dangerous person”, nor his activities could be said to have adversely affected the maintenance of public order. She also submitted that out of the three cases, one case is pending for trial, and two cases are pending for investigation, and the petitioner has been released on bail in all three cases. Ms. Patel has heavily placed reliance on the decision of the Supreme Court in the case of Mustakmiya Jabbarmiya Shaikh vs M.M. Mehta, Commissioner Of Police and others reported in 1995 (3) SCC 237 in support of her submission that in absence of any material to show that the activities of detenu were likely to adversely affect the maintenance of public order, the detention order is liable to be set aside. 4. Per contra, the learned AGP Ms. Bhatt submitted that the respondent authorities having arrived at a subjective satisfaction that the detenu is a dangerous person within the meaning of Section 2(c) of the said Act, and that his activities are likely to adversely affect the maintenance of the public order, the Court should not interfere with the same. 5. As stated earlier, the detaining authority i.e. respondent No. 2 has relied upon the three cases registered against the applicant one being IIC. 5. As stated earlier, the detaining authority i.e. respondent No. 2 has relied upon the three cases registered against the applicant one being IIC. R. No. 3168 of 2019 registered at Tankara Police Station for the offences punishable under sections 504 and 506(2) of IPC; the other being Apart C.R. No. 11189006200189 of 2020 registered at the same police station for the offences punishable under section 323, 504, 506(2) of IPC and 135 of G.P. Act, and the third being Apart C.R. No. 11189006200190 of 2020 at the same police station for the offences punishable under section 186, 333, 504 and 506(2) of IPC. The respondent No. 2 has also relied upon the statements of the three witnesses, whose identity has not been disclosed for the security purpose. However, it may be noted that all the three cases registered against the present applicant pertained to the individual person. At this juncture, a very pertinent observations made by the Supreme Court in the case of Mustakmiya Jabbarmiya Shaikh vs M.M. Mehta, Commissioner Of Police and others (supra), are required to be reproduced. Para 6 to 9 thereof read as under : “ 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 antisocial 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 necessary 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 Government 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 subsection (1) exercise the powers conferred by the said subsection". (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 subsection, 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 subsection 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. 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 antisocial 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 commission 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 subsection (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 commission 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, customary & 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. 9. Further, subsection (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 subsection (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 interalia if any of the activities of any person referred to in subsection (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. Subsection (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 expression '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 maintenance 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 determines 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 essential 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. 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 commission 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.” 6. Now, it is true that the Courts should normally not interfere with the detention order passed by the respondent authorities on their subjective satisfaction, however, so far as the facts of the present case are concerned, as discernible from the impugned order, the detaining authority has relied upon three cases registered against the petitioner. As submitted by the learned advocate Ms. Patel, out of the three, two cases are pending investigation and one is pending for trial, and therefore, the case of the petitioner should be treated as the one of solitary incident. That apart, looking to the nature of allegations in the light of aforestatd legal position settled by the Supreme Court, it is difficult to sustain the findings of the respondent No. 2 District Magistrate that the petitioner is a “dangerous person” within the meaning of Section 2(c) of the said Act and that his activities are likely to adversely affect the maintenance of the public order. The impugned order, therefore, being arbitrary, and not tenable at law, deserves to be quashed and set aside, and is accordingly set aside. The petitioner – detenu is directed to be set free, if not required in any other case. 7. The petition is allowed accordingly. Rule is made absolute. Direct service is permitted.