Gujarat High Court
Amanullakhan Kudratallakhan Pathan vs State Of Gujarat on 5 April, 1999
Equivalent citations: (2000)GLR737
Author: D.C. Srivastava
Bench: D.C. Srivastava
JUDGMENT D.C. Srivastava, J.
1. The petitioner who has been adjudged and declaredas dangerous person by the Detaining Authority,Commissioner of Police, Ahmedabad City under section 3(2) of the Gujarat Prevention of Anti-social ActivitiesAct,1985 (for short 'PASA') has challenged the detentionorder dated 13.8.1998 and has prayed for quashing of thesaid order and also for his immediate release fromillegal detention.
The facts giving rise to this petition brieflystated are as under.
2. From the grounds of detention it seems that thepetitioner is belonging to the notorious Latif gang ofAhmedabad and the members of this gang hatch conspiracywith intention to extort money and to fulfill thatconspiracy with a view to extorting Rs.10 lakh frominnocent persons engaged in building constructionbusiness in the City, in complicity with each other madeinnocent citizens to talk with Latif on cellulor phone.The petitioner decided to extort Rs.5 lakh and threatenedthe victim with life, kept him under constant fear ofdeath. On this activity of the petitioner CR No.36/97under sections 120B, 387 and 506(2) IPC was registeredagainst him in Ahmedabad. In addition to this, twoconfidential witnesses also gave statements against thepetitioner highlighting his antisocial activities in thenature disclosed in above crime register number and alsothat his activities were prejudicial for maintenance ofpublic order. Being satisfied from the aforesaidmaterial, the Detaining Authority declared the petitioneras dangerous person and finding his activities to beprejudicial for maintenance of public order passed theimpugned order of detention.
The impugned order has been challenged only onone ground that the petitioner is not a dangerous personand could not be declared as dangerous person becauseonly one registered offence was available against him andon the basis of isolated registered offence thepetitioner could not be adjudged as dangerous person.
A dangerous person has been defined under section 2(c) of the PASA as under :
"2(c) "dangerous person" means a person, whoeither by himself or as a member or leader of agang habitually commits, or attempts to commit orabets the commission of any of the offencespunishable under Chapter XVi or Chapter XVII ofthe Indian Penal Code or any of the offencespunishable under Chapter V of the Arms Act,1959."
3. From the above definition, it is clear that aperson can be said to be dangerous person when he himselfor as a member or leader of a gang habitually commits orattempts to commit or abets the commission of any of theoffences punishable under Chapters XVI and XVII of theIndian Penal Code and any of the offences punishableunder Chapter V of the Arms Act.
4. Learned Counsel for the petitioner placingreliance upon two decisions of the Apex Court in AyubPappukhan Nawabkhan Pathan Vs. S.N.Sinha and another,AIR 1990 SC 2069 and Rashidmiya @ Chhava Ahmedmiya ShaikhVs. Police Commissioner, Ahmedabad, AIR 1989 SC 1703contended that the Apex Court has held that solitaryincident would hardly be sufficient to conclude that thedetenu was habitually committing or attempting to commitor abetting the commission of offences hence, detentionof the petitioner on the basis of one registered offenceonly is illegal.
5. The expression "habitually commits" under section 2(c) of PASA was explained by the Apex Court in VijayNarain Singh Vs. State of Bihar, AIR 1984 SC 1334. Theexpression habitually means repeatedly or persistently.It implies a thread of continuity stringing togethersimilar repetitive acts. Repeated, persistent andsimilar but not isolated individual and dissimilar actsare necessary to justify an inference of habit. Itconnotes frequent commission of acts or omissions of thesame kind referred to in each of the said sub-clauses oran aggregate of similar acts or omissions.
6. In Rashidmiya @ Chhava Ahmedmiya Shaikh Vs.Police Commissioner (Supra), the Apex Court held that asilitary incident would hardly be sufficient to concludethat the detenu was habitually committing or attemptingor abetting commission of offence.
7. Thus, in view of Section 2(c) of PASA andaforesaid decisions, it is necessary that before a personcan be declared as dangerous person he either himself oras a member or leader of a gang commits offencespunishalbe under Chapter XVI or Chapter XVII of the IPCor under Chapter V of the Arms Act, habitually. Attemptto commit such offence by such person will also rendersuch person as dangerous person. Likewise abetment bysuch person in commission of such offence will alsorender him dangerous person. Further, a single isolatedincident or case cannot be equated with word habitual orexpression habitually commits 'such offence' within themeaning of Section 2(c) of the Act.
8. The cases of Ayub Pappukhan Nawabkhan Pathan V/s.S.N.Sinha (Supra) and Rashidmiya @ Chhava AhmedmiyaShaikh Vs. Police Commissioner,Ahmedabad (Supra) aredistinguishable on facts. So far as the law isconcerned, in both the cases the Apex Court has laid downthat single offence registered against the detenu is notenough to declare him as dangerous person. However, ifwe look to the facts of the two cases it can be said thatthe two cases are distinguishable on facts with referenceto the facts of the case under consideration before me.
9. In Ayub's case (Supra) the facts were that onlyone CR No.96/90 was pending investigation against thedetenu. No other case was registered against the detenunor any witness had stated about commission of anyoffence by the petitioner. In these circumstances thesolitary case registered against the petitioner was foundinsufficient to declare him as dangerous person withinmeaning of section 2(c) of the PASA. Likewise inRashimmiya's case (Supra) also, only one CR No.2/88 wasregistered against the detenu in Kalupur Police Station.The other four cases against the detenu were under BombayProhibition Act, which were for the purpose of section 2(b) of the PASA. The only registered offence againstthe petitioner was CR No.2/88 under sections 307, 120Band 212 IPC, Section 3(1)(3) of Terrorist Act andSections 4 and 5 of Explosive Act and Section 25(1)(A)C) of the Arms Act. Here also no witness stated about thecommission of any other offence by the detenu which couldbe punishable under Chapters XVI and XVII of the IPC orunder Chapter V of the Arms Act.
10. In the case before me it is true that only oneoffence CR No.36/97 under sections 120B, 387 and 406(2) of the IPC was registered against the petitioner. Butthat is not the end of the matter. Two confidentialwitnesses also stated about the incidents dated 26.7.1998and 2.8.1998.
11. The first witness stated about the incident dated26.7.1998 at 7.00 P.M. He was present at the place ofhis business. The petitioner along with his companionswent to the witness and demanded Rs.1 lakh for fightingcase against the petitioner and his companions. Thewitness refused whereupon the petitioner got excited andthreatened the witness along with his companions anddragged him near Nehru Bridge in public. The witnessraised alarm for his rescue. People from the nearbylocality collected. The petitioner became more excitedand he in the company of his companions rushed towardsthose persons hence there was helter-skelter amongstpeople and an atmosphere of fear was created and trafficwas disturbed.
12. The other witness narrated the incident dated2.8.1998 which occured at 5.00 P.M. He too was presentat his business place. The petitioner in the company ofhis companions went there and told him that for gettingbail of Latif gang members lot of money was spent henceRs.50,000/- were demanded from the witness. The witnessrefused whereupon the petitioner got excited and with thehelp of his companions dragged the witness near KhanpurGun House on the raod and took out Rs.900/- from hispocket and beat him. The witness raised alarm.Therefore, people gathered from nearby locality. Thepetitioner and his companions rushed towards those peoplewith arms and thereafter helter-skelter was created.Traffic was disrupted and atmosphere of fear gripped thearea.
13. Thus, the second witness has stated aboutextortion of Rs.900/- from him. Further, from these twowitnesses commission of offence of beating to these twowitnesses is also prima facie disclosed. Demand of Rs. 1lakh from the first witness was also disclosed.
14. Similar was the activity in the registeredoffence when Rs. 10 lakh were to be collected and out ofthis amount Rs. 5 lakh were demanded from thecomplainant and on refusal he was threatened with life.He was placed under constant fear of death. Thus, modusoperandi in all the three cases seems to be the same andin this view of the matter repeated commission ofoffences punishable under Chapters XVI and XVII of theIPC are prima facie disclosed.
15. It is difficult to accept the contention thatsince only one case was registered against the petitionerhe could not be declared as dangerous person. Therequirement of section 2(c) of the PASA is that suchperson who habitually commits, or attempts to commit orabets the commission of any of the offences mentionedunder this section can be said to be the dangerousperson. Thus, commission of any of the offencespermissible under Chapter XVI or XVII of the I.P.C. orunder Chapter V of the Arms Act or attempt to commit orabetment in commission of any of these offences has beenthe intention of the legislature in enacting section 2(c) and not that registration of these offences is acondition precedent to attract section 2(c) of PASA.
16. There may be several reasons for not registeringthe said offences with the police. The extreme fear inthe mind of the witness may be one factor as has beendisclosed by the two confidential witnesses in theinstant case. Likewise out of several otherconsiderations, for example, fear to the life andproperty of the witnesses or the victims and fear ofdamage likely to be caused to the reputation of suchvictims to approach the police for registering the casemay be the reasons why commission of such offences is notreported to the police. Thus, registration of cases wasno intention of the legislature while enacting section 2(c) to treat it as condition precedent. On the otherhand, the provision under this section is habituallycommission of offences and if repetition of such activitywas noticed by the Detaining Authority (i) in theregistered offence and (ii) in the incidents narrated bytwo confidential witnesses, it can be said that there wassufficient material before the Detaining Authority toreach subjective satisfaction that the petitioner washabitually committing offences punishable under ChaptersXVI and XVII IPC. It has also been made out from thegrounds of detention that the petitioner is a member ofLatif gang and he was committing such offences not alonebut as member of Latif gang in the company of hiscompanions. In this view of the matter requisiteingredients of section 2(c) of PASA are made out in theinstant case, hence, the subjective satisfaction of theDetaining Authority in declaring the petitioner asdangerous person requires no interference nor suchsubjective satisfaction is vitiated in the eyes of law.
17. No other point was pressed by the learned Counselfor the petitioner. The Detaining Authority wastherefore justified in declaring the petitioner asdangerous person.
18. However, a point which should have been arguedwas not argued by the learned Counsel for the petitionerviz. even dangerous person cannot be detainedpreventively unless his activities are found prejudicialfor maintenance of public order within the ambit ofsection 3(4) and explanation appended to that section.The concept of public order and the definition of publicorder in section 3(4) and explanation appended theretounder PASA makes it clear that even deeming provision hasbeen made in this behalf by the legislature and extendedmeaning of disturbance of public order is that publicorder shall be deemed to have been affected adversely orshall be deemed likely to be affected adversely interalia if any of the activities of any person referred toin this sub-section directly or indirectly is causing oris likely to cause any harm, danger or alarm or feelingof insecurity amongst general public or any sectionthereof or grave or widespread danger to life , propertyor public health. The person indulging in suchactivities can be said to have involved in the activitiesprejudicial for maintenance of public order.
19. Narration of incidents by the two confidentialwitnesses is enough to cover the activities of thepetitioner within the extended meaning of disturbance ofpublic order as contained in section 3(4) and explanationappended thereto. In one case, the witness wasthreatened of dire consequences in case he was notwilling to give Rs.1 lakh to the petitioner to fight outthe cases. He was beaten by the petitioner and hiscompanions and he was dragged near Nehru Bridge a publicplace. The petitioner shouted for help. The persons whocollected at the spot were also threatened and chased bythe petitioner and his companions showing them arms.People ran helter skelter. Atmosphere of fear wascreated in the locality viz. on Nehru Bridge and in thenearby locality. From this incident a signal was givenin the minds of the witness as well as people whocollected to save the witness that the petitioner is sohighhanded that he could demand Rs.1 lakh from thebusinessman and on refusal he was beaten and threatenedwith life and even persons who were willing to help himand save him were also to face similar consequences. Thepublic order was therefore disturbed in the area nearNehru Bridge and businessmen in the locality were alsofeeling sense of insecurity in their minds at the handsof the petitioner and his companions.
20. In the second incident also similar situationarose. In addition, that the witness was beaten onrefusal to pay Rs.50,000/- to the petitioner, Rs.900/wereforcibly taken from the pocket of the witness and he wasbeaten again. The persons who reached the spot to savethe witness were also chased by the petitioner and hiscompanions showing arms, on account of which people ranhere and there helter skelter and traffice on the roadwas disturbed. Atmosphere of fear was created. Thesetwo incidents were not such which occured inside thebusiness place of the two witnesses, rather the twowitnesses were dragged to public places like Nehru Bridgeand on public road and they were beaten because theyrefused to pay Rs. 1 lakh and Rs.50,000/- respectivelyto satisfy the demand of the petitioner. Thus, feelingof insecurity was created in the minds of the witness andthe public at large in the locality. In the secondincident also harm was caused to the second witness.This harm was not only physical harm in the sense thatthe witness was beaten but also he was deprived ofRs.900/- from his pocket by the petitioner.
21. Thus considering the magnitude of the twoactivities disclosed by the two confidential witnesses itcan be said that public order was certainly disturbed bythe activities of the petitioner.
22. The petitioner under these circumstances wasrightly detained under PASA. The impugned order istherefore perfectly valid and requires no interference inthis writ petition. The writ petition is thereforedevoid of force and is bound to fail.
The writ petition is hereby dismissed.