Gujarat High Court
Hemendrasinh @ Chikubha Jayrajsinh ... vs The State Of Gujarat on 10 June, 2020
Author: Gita Gopi
Bench: Gita Gopi
C/SCA/7103/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7103 of 2020
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HEMENDRASINH @ CHIKUBHA JAYRAJSINH JADEJA THROUGH HIS
FRIEND PARDIPSINH ERANJITSINH CHAUHAN
Versus
THE STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MS VRUNDA SHAH, ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 3
RULE NOT RECD BACK(63) for the Respondent(s) No. 2,4
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 10/06/2020
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner, through his friend, has challenged the legality of the order of detention dated 11.05.2020 passed by respondent no.2 under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("P.A.S.A Act" for short) by detaining the detenu as a "dangerous person" with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of public order.
2. The petitioner-detenu came to be detained as a "dangerous person" on the ground that his activities are prejudicial to the maintenance of public order.
3. Learned advocate for the petitioner has raised the following Page 1 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER submissions:
(I) That the order of detention passed against the detenu is illegal, unconstitutional and null and void;
(II) That the petitioner had visited Vavdi Check-post to ascertain as to when Train is scheduled for driving back the migrant labourers to their respective home States. The petitioner is politically active and had arranged for food / shelter for the migrants. On account of some commotion at the Check-post, the petitioner has been branded as a "dangerous person".
(III) The impugned order has been passed without application of mind.
(IV) The detenu has been detained on the ground that the alleged anti-social activities of the petitioner adversely affect or is likely to affect the maintenance of public order in clear abuse of the powers and process of legal machinery, which is nothing, but arbitrary and illegal.
4. On the other hand, Ms. Vrunda Shah, learned AGP has supported the impugned order of detention passed by respondent no.2 and submitted that the detenu is a ''dangerous person'' as he has been spreading rumors and sufficient material was found during the course of investigation, indicating that the detenu is in habit of indulging himself into illegal activities, as defined under Section 2 (c) of the PASA Act and therefore, considering the facts of the case, the detaining authority has rightly passed the order of detention, which deserves to be upheld by this Court.
Page 2 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER4.1 Learned AGP further contended that the detenu has indulged into anti-social activities, which are prejudicial to the maintenance of public order. In view of this, there is sufficient material to arrive to the satisfaction that the detenue is a "dangerous person" and is involved in anti-social activities, which are prejudicial to the maintenance of public order. She also contended that the order of detention is passed based on material subjective satisfaction and therefore, she prays this Court to dismiss the petition.
6. Having heard learned counsel for the parties and having gone through the material on record, the only question arises for consideration in this petition is whether the order of detention deserves to be quashed. It appears that the authority concerned has taken note of the fact of a sole FIR bearing No.11208053200872 of 2020 dated 10.05.2020 registered with Rajkot Taluka Police Station for the offences punishable under sections 323, 186, 188, 109 and 504 of IPC, Section 51(a) of the Disaster Management Act, 2005, section 135 of the Gujarat Police Act and Section 3 of The Epidemic Diseases Act, 1897, registered against the detenu. However, it is difficult to conclude that the alleged incidents have any direct bearing on public order or it may be termed as an activity by which the petitioner could be branded as a habitual offender. There is nothing on record to arrive at the conclusion that the activities of the petitioner had disturbed public order in any area. The alleged offences registered against the petitioner are individual in nature and it cannot be said that law and order situation would be affected by the activities of the petitioner. All the statements Page 3 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER recorded during the course of investigation are general in nature and therefore, the alleged incidents wherein the detenu was involved, have no adverse effect prejudicial to the maintenance of public order disturbing the peace of the society. Hence, the detenu cannot be branded him as a "dangerous person" within the meaning of Section 2 (c) of PASA Act.
7. In this backdrop, it would be apposite to refer to the case of Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner reported in 1995 (3) SCC 237, wherein the Apex Court has observed thus:
"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 outthat 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:-
Page 4 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER"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 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 Page 5 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER 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 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, 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' Page 6 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER 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."
8. In light of the above principles propounded by the Supreme Court in the above-cited judgment to the facts of the present matter relating to labourers migrating to their home States on account of the Covid-19 pandemic, the detaining authority has failed to substantiate that the alleged activities of the detenu adversely affect or are likely to adversely affect the maintenance of public order. The alleged activities of the detenu cannot be termed as dangerous to the public at large. As a result, the grounds for passing such detention order cannot be sustained and therefore, it deserves to be quashed and set aside.
9. In the result, present petition is allowed. The impugned Page 7 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020 C/SCA/7103/2020 ORDER order of detention dated 11.05.2020 passed by respondent no.2 is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in connection with any other case. Registry is directed to communicate this order to the concerned jail authority by fax/e-mail forthwith.
(GITA GOPI,J) MARY VADAKKAN Page 8 of 8 Downloaded on : Thu Jun 11 00:08:10 IST 2020