Gujarat High Court
Hafijuddin Fazluddin Kazi vs Commissioner Of Police And Anr. on 23 April, 1992
Equivalent citations: (1992)2GLR1332
JUDGMENT S.D. Dave, J.
1. Hafijuddin Kazi the petitioner-detenu herein challenges, by way of filing the present petition under Article 226 of the Constitution of India, the orders of detention passed by the Commissioner of Police, Ahmedabad City, the respondent No. 1 herein, dated 11-9-1991 Annexure 'A', saying that the petitioner-detenu is a dangerous person within the meaning of PASAA, 1985 and that, therefore, he requires to be preventively detained under the same. The orders under challenge dated 11-9-1991 at Annexure 'A' have been duly furnished to the petitioner-detenu.
2. The grounds of detention would show that a singular crime, namely C.R. No. 168 of 1991 was registered at the Ellisbridge Police Station on 15-3-1991 for the alleged commission of the offences punishable under Sections 365, 342, 506(1) and under Section 114 of Indian Penal Code. The grounds of detention, do further go to show that because of the registration of the above said offences at the Ellisbridge Police Station against the petitioner-detenu, he appears to be a 'dangerous person' within the meaning of Section 2(c) of the PASAA, 1985. It is also further recited and incorporated in the grounds of detention at Annexure 'B', that certain statements of the witnesses recorded by the sponsoring authority, also go to show that the petitioner-detenu is a dangerous person and that, his activities affect adversely or are likely to affect adversely, the maintenance of the public order. It is therefore that, according to the detaining authority, the petitioner-deteau was required to be preventively detained under the relevant provisions of PASA, 1985.
3. The learned Advocate Mr. Kapadia who appears on behalf of the petitioner-detenu has urged that the detaining authority could not have come to the subjective satisfaction that the petitioner-detenu is a 'dangerous person' within the meaning of Section 2(c) of the PASAA, 1985, only on the basis of the registration of a singular crime against him at the Ellisbridge Police Station. Taking up the question regarding certain statements allegedly referred in the grounds of detention and, the copies of which have been duly supplied to the petilioner-deteuu, Mr. Kapadia has urged that, though the statements are vague in nature as the exact date, time and place of the alleged occurrence have not been given, and that, even if those statements are to be accepted on their face value, a clear-cut case regarding the adverse effect on the public order situation has not been carved out. It is on these contentions that Mr. Kapadia seeks to challenge the impugned orders of detention dated 11-9-1991. A reference to the memo of the petition filed on behalf of the petitioner-detenu would go to show that various other contentions have been raised therein. But as the above said are the only contentions raised by Mr. Kapadia before us, we do not find it necessary to enter into the details or the niceties of the other contentions raised in the memo of the petition. The immediate reaction against the above said contentions raised by Mr. Kapadia, emanating from Mr. Dave the learned A.P.P. is that, even from a singular incident which appears to be a crime according to the law of land, and in respect of which the offence has been registered at the concerned police station, the subjective satisfaction can be arrived at by the authority passing the detention orders, that the petitioner-detenu requires to be preventively detained. Mr. Dave has also urged that the statements of certain witnesses recorded by the police would serve as a meaningful resource for the purpose of coming to the conclusion that the petitioner-detenu was required to be preventively detained. Thus, in the submissions of Mr. Dave the learned A.P.P. appearing on behalf of the respondents, the contentions raised by the petitioner-detenu through the learned Advocate Mr. Kapadia are not sustainable.
4. It must be accepted without any hesitation that a singular offence has been registered against the petitioner-detenu at Ellisbridge Police Station vide C.R. No. 168 of 1991 on 15-3-1991 for the alleged commission of the offences punishable under Sections 365, 342, 506(1) read with Section 114 of the Indian Penal Code. It appears that though the above said offence was registered on 15-3-1991 the petitioner-detenu came to be arrested as late as 11-9-1991. Therefore it requires to be accepted without any hesitation as it emanates from the grounds of detention at Annexure 'B', that only one offence, and that also as mentioned above, was allegedly committed by the petitioner-detenu somewhere in March 1991, for which the above said offence came to be registered on 15-3-1991.
5. The above said factual aspect cannot be disputed and has not in fact been disputed by the learned A.P.P. Mr. Dave. Therefore, after having established the said factual position Mr. Kapadia has urged that only because a singular offence came to he registered against the petitioner-detenu he would not fall within the perview of Section 2(c) of the PASAA, 1985. Section 2(c) of PASAA, 1985, defines a dangerous person. The statutory definition provided under the above said provision runs thus:
Dangerous Person" means a person, who either by himself as a member or leader of a gang habitually commits, or attempts to commit or abets 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.
6. A bare look at the above said definition of 'dangerous person' provided under the Statute would go to show that 'dangerous person' would mean a person who habitually commits or attempts to commit or abets the commission of certain offence which would fall under the definition clause. Mr. Kapadia has underlined the words 'habitually commits' and has urged that unless a person is shown to be habitually committing or habitually attempting to commit the offence mentioned under the above said definition clause he cannot be branded as a 'dangerous person'. It appears that the very language of Section 2(c) of PASAA which defines 'dangerous person' is so eloquently clear that unless a man habitually commits or attempts to commit or abets the commission of the offence mentioned under the said provisions of law, he cannot be branded as a dangerous person. Any how this position has heen settled by certain reported decisions on which Mr. Kapadia has placed reliance. Firstly our attention has been drawn to a Bench decision of this Court in Der Punja Fogal v. District Magistrate, Rajkot and Ors. . In this decision while considering the provisions contained under Section 2(c) of the PASAA, 1985 and especially examining the meaning of the expression 'habitually commits' the Berch of this Court has taken the view that the expression "habitually commits" means "repeatedly and persistently"-an isolated or solitary act would not cover the expression 'habitually commits". It has also been pointed out that the expression 'habitually' means "repeatedly or persistently" and it implies a thread of continuity stringing together similar repetitive acts. While coming to the above said conclusion, this Court has placed reliance upon the Supreme Court decision in Vijay Narain Singh v. Slate of Bihar and Ors. . Before going to the Supreme Court decision in Vijay Narain Singh (supra) it requires to be appreciated that in case of Der Punja Fogal (supra) the Bench decision of this Court, has taken into consideration the fact that there was only one offence registered against the petitioner-detenu. It is indeed true that certain statements were also recorded by the sponsoring authority but after having a careful look at the above said statements, the Bench decision proceeds to say, that it cannot be said that the petitioner would be a dangerous person as defined under the relevant provisions of PASAA, 1985. In Vijay Narain Singh (supra) the Supreme Court was concerned with certain provisions of the Bihar Control of Crimes Act, 1981, and especially with the definition of Anti-social Elements as defined under Section 2(d) of the said Act. While considering the above said provisions, the Supreme Court has taken the majority view that the word 'habitually' means 'repeatedly' or 'persistently' and it implies a thread of continuity stringing together similar repetitive acts. It has also been pointed out that 'repeated, persistent and similar' but not 'isolated, individual and dissimilar acts' would be necessary to justify an inference of habit. The above said views expressed as per the majority decision, no doubt are in connection with Section 2(d) of the Bihar Control of Crimes Act, 1981, but they do provide the clear clue regarding the meaning which can be ascribed to the expression 'habitually'. It is therefore clear that on a joint reading of the above said Supreme Court decision in Vijay Narain Singh (supra) and this High Court decision in case of Der Punja Fogal, it shall have to be accepted that an isolated act would not make a petitioner-detenu a 'dangerous person' within the meaning of Section 2(c) of the PASAA, 1985. The same view has been taken in two other Supreme Court decisions. The first being Rashidmiya Shaikh v. Police Commissioner, Ahmedabad and Anr. . In this decision while considering the provisions contained under Section 2(c) of the PASAA, 1985, with which we are concerned in the present habeas corpus petition, the Supreme Court has ruled that a solitary incident would not be sufficient to conclude that the detenu was habitually committing offences or attempting or abetting commission of offences. The Supreme Court has also ruled, in unequivocal terms, that the solitary incident would not be sufficient to characterise the detenu-Rashidmiya, in that case, as a dangerous person within the meaning of Section 2(c) of the PASAA, 1985. The other decision in the same line is the Supreme Court decision in Ayub Nawabkhan Pathan v. S.N. Sinha and Anr. . In this case before the Supreme Court the definitions which came to be examined by the Supreme Court were in respect of Section 2(b) and Section 2(c) of the PASAA, 1985. It is not necessary, for the purposes of the decision of the present petition to see as to what has been said by the Supreme Court in respect of the definition of a 'bootlegger' within the meaning of Section 2(b) of the PASAA, 1985. But so far as the definition of 'dangerous person' covered within Section 2(c) of the PASAA, 1985 is concerned, it was pointed out that when only one criminal case was pending against the detenu he cannot be said to be the habitual offender and consequently he cannot be said to be a 'dangerous person'.
7. Looking to the above said decisions rendered by this Court and the Supreme Court, there is no escape from the conclusion that in the instant petition also when a solitary offence came to be registered against the petitioner-detenu vide C.R. No. 168 of 1991 at Ellisbridge Police Station, he cannot be termed or branded as a 'dangerous person' within the meaning of Section 2(c) of the PASAA, 1985. The first contention therefore raised by Mr. Kapadia requires to be accepted.
8. Mr. Dave the learned A.P.P. who appears on behalf of the respondents has invited our pointed attention to certain averments and recitals made in the grounds of detention at Annexure 'B' and the statements of four witnesses recorded by the sponsoring authority. Mr. Dave, on the basis of the above said material, has tried to urge that here in the instant petition over and above the registration of the offence against the petitioner-detenu, there was the relevant material before the detaining authority on the basis of which a subjective satisfaction could have been arrived at to the effect that the petitioner is a 'dangerous person' and therefore he requires to be preventively detained under the relevant provisions of the PASAA, 1985-It is indeed true that in the grounds of detention at Annexure 'B' such a recital has been made. It is also true that the statements of four witnesses came to be recorded by the sponsoring authority on 7-9-1991, 8-9-1991 and 9-9-1991. The immediate reaction coming from Mr. Kapadia is that above said statements are too vague and general in nature and that, therefore, the above said could not have been taken as the base for reaching the subjective satisfaction that the petitioner-detenu requires to be preventively detained. We have scrutinised the above said statements recorded by the sponsoring authority with the assistance of the learned Advocate Mr. Kapadia and the learned A.P.P. Mr. Dave. It appears imperative to point out that in the initial portion of all the above said four statements, the general and broad allegations regarding the alleged anti-social activities being carried on by the petitioner-detenu have been made. Needless it is to say that the above said initial portion of the statements could not have been utilised to warrant a subjective satisfaction that the petitioner-detenu was a 'dangerous person' and his activities effect adversely or were likely to affect adversely the maintenance of the public order So far as the later portion of these four statements are concerned, it requires to be pertinently noticed that the exact date and the time have not been given by the persons whose statement came to be recorded by the sponsoring authority. The first statement dated 7-9-1991 says that the petitioner-detenu had purchased on.; kg. of 'shrikhand' from the shop of the witness and the petitioner-detenu had refiissd to make payment and on demand of the price of the said commodity by the witness, he was enraged. The second statement dated 8-9-1991 would go to show that the petitioner-detenu had asked for an amount of Rs. 500/- in cash, from the witness and on his refusal to part with the above said amount, the petitioner-detenu had taken out a Rampuri knife with a view to assault him. The statement of the third witness dated 8-9-1991 says that before about 15 days of the recording of the statement the petitioner-detenu had alleged against the witness that he is the police agsnt and that he was supplying certain information to the police against him. The last statement dated 9-9-1991 says that when the witness was present at his shop and when he had called the petitioner -detenu to the shop and had requested him to make the payment of the pending bills to the tune of Rs. 1200/- he had refused to do so and had threatened the witness. In this last statement dated 9-9-1991 not only the date and time in respect of the incident, have rot been furnished but at the same time, the statement is silent in respect of the place at which the above said incident had taken place. Mr. Kapadia after referring to this statements has urged that these statements are vague because the exact date, time and place have not been furnished by the respective witness. Mr. Kapadia has urged that, a view has been taken by this Court in various other decisions, saying that such statements can always be branded as too vague and general from which the subjective satisfaction could not have arrived at. We see no reason to defer from the above said view taken by this Court in several other matters, even afier having a careful look at the statements aforesaid. It therefore becomes clear that the detaining authority could not have arrived at the subjective satisfaction on the basis of the above said four statements that the petitioner-detenu is a 'dangerous person' and, therefore he requires to be preventively detained under the relevant provisions of the PASAA, 1985.
9. One more contention raised by Mr. Kapadia is based upon the Supreme Court decision in Piyush Kamtilal Mehta v. Commissioner of Police, Ahmedabad City and Anr. . In this decision it has been made abandantly clear that the allegations in the statements referred to above would not be the allegations from which the adverse affect on the public order can be culled out. Moreover it has been pointed out in this decision at para-18, page 497 that it may be that the petitioner would be a 'bootlegger' within the meaning of Section 2(b) of the Act but merely because he is a bootlegger he cannot be preventively detained under the provisions of PASAA, 1985, unless as laid down in Sub-section (4) of Section 3 of the Act, his activities affect adversely or are likely to affect adversely the maintenance of public order. It is indeed true that in that decision the Supreme Court was concerned with the bootlegging activity of the petitioner-detenu, while in the instant petitwn we are concerned with a case of a petitioner who has been detained on the ground that he is a "dangerous person" within the meaning of PASAA, 1985. But looking to the above said Supreme Court decision and further looking to the scheme of the Act and especially looking to the provisions contained under Section 3 of the Act, it becomes clear that even if the petitioner-detenu were to be branded as a dangerous person, he could not have been preventively detained unless and until a subjective satisfaction was arrived at to the effect that his activities affect adversely or likely to affect adversely the maintenance of public order. We should say at once that because of the dual reasons the above said subjective satisfaction could not have been arrived at in the instant petition. Looking to the fact that there was only a solitary incident alleged against the petitioner-detenu in the form of an offence having been registered at Ellisbridge Police Station, the petitioner-detenu could not have been said to be a "dangerous person" within the meaning of Section 2(c) of the PASAA, 1985. Even if that part were to be accepted, it is clear that there is absolutely no material to warrant a conclusion or subjective satisfaction that the activities of the petitioner-detenu affect adversely or are likely to affect adversely the maintenance of the public order.
10. Therefore it is apparent that the subjective satisfaction arrived at by the detaining authority saying that the petitioner-detenu requires to be preventively detained under the relevant provisions of PASAA, 1985, clearly stood vitiated and that, the petitioner-detenu could not have been detained on the above said material which never give birth to the subjective satisfaction of the authority passing the orders of detention.
The present petition therefore requires to be allowed and the impugned orders of detention require to be quashed and set aside. We therefore hereby accordingly allow the present petition and do hereby quash and set aside the orders of detention dated 11-9-1991 at Annexure 'A' and direct the respondents to release the petitioner-detenu from the detention and to set him at liberty forthwith, if not required in any other criminal case or procsediags. Rule made absolute accordingly.