Gujarat High Court
Salik Salimbhai Gulamrasul Malek ... vs State Of Gujarat on 10 December, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/9515/2020
JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9515 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order
made thereunder ?
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SALIK SALIMBHAI GULAMRASUL MALEK THROUGH HIS FATHER
SALIMBHAI GULARASUL MALEK
Versus
STATE OF GUJARAT
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Appearance:
MR N R DESAI(6504) for the Petitioner(s) No. 1
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C/SCA/9515/2020
JUDGMENT
MR P P MAJMUDAR(5284) for the Petitioner(s) No. 1
MS VRUNDA SHAH, GOVERNMENT PLEADER(1) for the Respondent(s)
No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 10/12/2020
ORAL JUDGMENT
1. By way of the present petition, the petitioner seeks to challenge the judgment and order passed by respondent No.2, Dated: 26.07.2020, whereby, he has been detained under the Gujarat Prevention of Anti- Social Activities Act, 1985 ('PASA Act', herein after), on the basis of the two FIRs being 28/20 (Part-A), C.R. No. 856/2020 for offence under Section 379 of the Indian Penal Code, 1860, and C.R. No. 857/20 also for the similar offence of theft. He has been termed as a 'Dangerous Person', as provided under Section 2(C) of the PASA Act. Respondent No.2, since, could not pass an order under Section 36 of the Gujarat Police Act of externment, and therefore, noticing the activities of the petitioner, he has chosen to invoke the powers under sub-Section(1) of Section 3 of the PASA Act.
2. The petitioner is aggrieved on the ground that he is not a threat to the maintenance of the public order and there is absolutely no ground for the draconian law, which is anathema of the democracy. The petitioner has also averred that he cannot be termed as a dangerous person, merely because two FIRs are pending against him. According to him, Page 2 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT since, both of them are being well taken care of by the ordinary law of the country, the impugned order deserves to be quashed and set aside.
3. He also had made a representation to the PASA Advisory Board on 30.07.2020, seeking revocation of the impugned order. However, the PASA Board has not acceded to his request. He is, therefore, before this Court, seeking following reliefs:
"11. ...
(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate, writ order or direction, releasing the present petitioner from illegal detention under Gujarat Prevention of Anti-Social Activities Act, 1985, pursuant to order dated 26.07.2020, passed by respondent No. 2 in PCB/PASA/DTN/68/2020 (at ANNEXURE-A hereto) (B) During pendency and final disposal of this petition, YOUR LORDSHIPS may be pleased to release the present petitioner from illegal detention under Gujarat Prevention of Anti-Social Activities Act, 1985, pursuant to order dated 26.07.2020, passed by respondent No. 2 in PCB/PASA/DTN/68/2020 (at ANNEXURE-a hereto);
(C) YOUR LORDSHIPS may be pleased to award compensation to the present petitioner for his illegal detention;
(D) ... "
4. Rule came to be issued by the Court on 19.08.2020 and today, the matter is taken-up for final hearing, as directed on the very date.
5. Learned Advocate, Mr. P.B. Majmudar, appearing with learned Advocate, Mr. L.R. Desai, has argued fervently along the line of the Page 3 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT memo of the petition. He has urged that there are only two FIRs registered against the present petitioner for which a person cannot be termed as a dangerous person. He also, further, urged that there are a couple of motorcycles, which have been produced as muddamal articles.
However, that itself, cannot be a ground for terming the petitioner as the dangerous person. There were two persons, namely one Salim and Shmbhunath, who are alleged to have committed theft of the motorcycles about 10 in numbers within a span of 15 days. They were caught red- handed by the police, when they were attempting to sell, one of the stolen vehicles, i.e. TVS Apache, bearing registration No. GJ-06-MN-9647, which was being taken to Vadodara for sell. He emphasized, reiteratively, that even the acts on the part of the present petitioner is of committing theft of vehicles and such activity of his, hardly can be said to be an issue of public order, and therefore also, he could not have been detained under the PASA Act. In both the offences, according to the leaned Advocate, Mr. Majmudar, the petitioner has been granted and there has been no challenge to the same by the respondent-authorities.
6. Learned AGP, Ms. Vrunda Shah, has argued for and on behalf of the respondent-State authorities and has urged that the petitioner is rightly termed as the dangerous person, in wake of the modus operandi adopted by him and his co-detenue, which is to unlock the motorcycles parked on the road or anywhere, wherever, there is less traffic and with the help of master key, they would commit the theft of a number of motorcycles within a very short span. They have acted very cunningly with criminal mindset, and whenever, it was not possible to sell the motorcycle, they would sell the spare-parts of the same. This, according to her, has created a feeling of panic and fear amongst the general public. She, therefore, has fervently urged that the authority concerned has rightly exercised the discretion and what needs to be considered by this Page 4 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT Court is only the limited aspect, as to whether, such a discretion is exercised without any basis or in absence of any valid material.
7. Having, thus, heard both the sides and also on examining the material on record, it can be noticed that by virtue of the order dated 26.07.2020, passed by respondent No.2, the petitioner has been detained under the PASA Act. The challenge is made on various grounds, principal being that action of the petitioner is, in no manner, causing prejudice to the public peace nor is it causing the disturbance of the public order. On the ground that there is violation of Articles 21 and 22 of the Constitution of India and the settled law of the country, this challenge is made.
7.1 At the outset, the definition of the dangerous persons is required to be considered from the provisions of the PASA Act, which is provided under Section 2(C) of the PASA Act. A person, who either by himself or as a member or leader of a gang; during the period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under the IPC, is termed as a dangerous person under the Act, as provided under this Act or under any other Act. Thus, what is required of the person, who is termed as the dangerous person, is of his commission of offences, as provided in this definition and his habit of committing such offences.
7.2 Sub-Section (1) of Section 3 of the Act, empowers the State Government that, if, it is satisfied with respect to any person that with a view to prevent 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. Therefore, the same shall need Page 5 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT to be regarded by this Court. Further, Sub-Section (4) of Section also shall need to be regarded by this Court, which provides, 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 a person is engaged in or is making preparation for engaging in any activities, whether, as a bootlegger or common gambling house 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. The explanation for the purpose of this sub-section provides that 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 fife, property or public health.
7.3 In this background, the Court shall also need to regard the decision of the Apex Court in the case of 'AMANULLA KHAN KUDEATALLA KHAN VS. STATE OF GUJARAT', AIR 1999 SC 2197, where, the Apex Court was considering as to who can be termed as the dangerous person or a habitual offender. In the matter before the Apex Court, the detaining authority on being satisfied from the activities of the detenu that he belongs to a notorious gang and the members of the gang hatched conspiracy to extort money from the people, by putting them under threat of fear of death, was satisfied that the detenu is a dangerous person within the meaning of Section 2[c] of the Act and the activities of the detenu and his gang members were such that for maintenance of public order it was necessary to detain the detenu and accordingly the order of detention against the detenu was passed. The Apex Court, on hearing both the sides, held that the subjective satisfaction arrived at by Page 6 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT the respondent authority is just and thereby, it refused to interfere with the order of detention. The relevant observations read thus:
"3. The detaining authority on being satisfied from the activities of the detenu that he belongs to a notorious gang and the members of the gang hatched conspiracy to extort money from the people who are engaged in building construction business in the city by putting the people under threat of fear of death, was satisfied that the detenu is a dangerous person within the meaning of Section 2[c] of the Act and the activities of the detenu and his gang members were such that for maintenance of public order it was necessary to detain the detenu and accordingly the order of detention against the detenu was passed. Immediately after the order of detention was passed, the detenu approached the Gujarat High Court as already stated inter alia on the ground that the single activity of the detenu for which CR No. 36/97 under Sections 120- B, 387 and 506(2) IPC had been registered is not sufficient to hold him to be a dangerous person within the meaning of Section 2[c] of the Act and as such the order of detention is vitiated. By the impugned Judgment, the High Court came to the conclusion that the satisfaction of the detaining authority was not based solely on the incident culminating in registration of the criminal case under Sections 120-B, 387 and 506(2) of the Indian Penal Code but also the incidents that happened on 26.7.98 and 2.8.98 about which the two witnesses have stated before the detaining authority and therefore, the satisfaction of the detaining authority, holding the detenu to be a dangerous person cannot be said to be vitiated.
4. Mr. Anil Kumar Nauriya, the learned counsel appearing for the detenu in this court reiterated the same contention namely that a single incident in which the detenu is alleged to be involved and for which the criminal case had been registered will not be sufficient to hold the detenu to be a dangerous person under Section 2[c] of the Act inasmuch as the expression dangerous person has been defined to be a person who either by himself or as a member or leader of a gang, during a period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959. In other words according to the learned counsel unless the activities of the detenu considered by the detaining authority indicate that he has either habitually committed or attempted to commit or Page 7 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT abet the commission of offence, cannot be held to be a dangerous person under Section 2[c] of the Act. The expression habitually would obviously mean repeatedly or persistently. It supplies the threat of continuity of the activities and, therefore, as urged by the learned counsel for the petitioner an isolated act would not justify an inference of habitually commission of the activity. In this view of the matter the question that requires adjudication is whether the satisfaction of the detaining authority in the present case is based upon the isolated incident for which the criminal case was registered or there are incidents more than one which indicate a repeated and persistent activity of the detenu. If the grounds of detention is examined from the aforesaid stand point, it is crystal clear that apart from the criminal case which had been registered against the detenu for having formed a gang and hatched a conspiracy to extort money from the innocent citizens by threatening them and keeping them under constant fear of death, the two witnesses examined by the detaining authority narrated the incident that happened on 26.7.98 and 2.8.98 in which the detenu was involved and on the first occasion a sum of Rs. 1 lac was demanded and when the person concerned refused, he was dragged and assaulted and on the second occasion a sum of Rs. 50 thousand was demanded and on refusal, the persons were dragged on the road and were beaten on the public road. It is not the grievance of the detenu that the statements of the aforesaid two witnesses had not been appended to the grounds of detention or had not been mentioned in the grounds of detention. In fact the grounds of detention clearly mention the aforesaid state of affairs and there is no bar for taking these incidents into consideration for the satisfaction of the detaining authority that whether the person is a dangerous person within the ambit of Section 2[c] of the Act. We, therefore, fail to appreciate the first contention raised by the learned counsel for the petitioner that the satisfaction of the detaining authority that the detenu is a dangerous person is based upon the solitary incidence in respect of which a criminal case has already been registered. In our considered opinion the detaining authority has considered the three different incidents happened on three different dates and not a solitary incidence and, therefore, the test of repeatedness or continuity of the activity is fully satisfied and the satisfaction of the detaining authority holding the detenu to be a dangerous person is not vitiated in any manner. The contention of the learned counsel for the petitioner therefore stands rejected.
5. Mr. Anil Kumar, the learned counsel then urged that even if the activities of the detenu were sufficient to hold him to be a dangerous person yet an order of detention can be passed under the Gujarat Act only with a view to prevent Page 8 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT the detenu from acting in any manner prejudicial to the maintenance of the public order. By virtue of provisions contained in Sub-section (4) of Section 3 of the Act 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. Thus maintenance of public order is sine qua non for passing an order of detention under Section 3 of the Gujarat Act. But in the case in hand the alleged activities of the detenu are all in relation to violation of the normal criminal law and it has got no connection with the maintenance of public order and, therefore, the order of detention is vitiated. We are unable to appreciate this contention of the learned counsel for the detenu inasmuch as even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of public order or not. In Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commisioner of Police and Ors. 1995(3) SCC 237, it has been held by this court 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 of 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 breach of public order. Applying the ratio of the aforesaid decision to the facts of the present case we find that the activities of the detenu by trying to extort money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them and torture them on public road undoubtedly affected the even tempo of life of the society and, therefore such activities cannot be said to be a mere disturbance of law and order. In our considered opinion the activities of the detenu are such that the detaining authority was satisfied that such activities amount to disturbance of public order and to prevent such disturbance the order of detention was passed. We, therefore, do not find any substance in the second contention of the learned counsel for the detenu. Mr. Anil Kumar then urged that the Advisory Board having not indicated that the detenu is to be detained for more than three months, has failed to discharge its constitutional obligation and there has been an infringement Page 9 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT of Article 22(5) of the Constitution and in support of the same reliance has been placed on the decision of this court in A.K. Gopalan vs. The State of Madras, 1950 SCR 88 and the decision of this Court in John Martin vs. The State of West Bengal, 1975(3) SCR 211. At the outset it may be stated that the detenu had not made any such grievance in the writ petition that had been filed in the Gujarat High Court. That apart, the opinion of the Advisory Board to the State Government, rejecting the representation of the detenu and expressing its opinion with regard to the existence of sufficient cause for the detention of the detenu is not a part of the record and what is pressed into service by the learned counsel in support of his argument is the mere communication from the Section Officer of the Home Department dated 27th August, 1998, intimating the factum of the rejection of representation by the Advisory Board. Section 11 of the Act is the procedure for making reference to the Advisory Board and Section 12 provides the duties and obligation of the Advisory Board on the basis of materials placed before it. Under Sub-section (2) of Section 12 it is the requirement of law that the report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the detenu and this opinion of the Advisory Board has been furnished in the present case. We really fail to understand how a contention could be raised that the Advisory Board has failed to discharge its obligation and how the court would be entitled to examine the same without even the copy of the report of the Advisory Board being formed a part of the records of the present proceedings. In view of the counter affidavit filed in the present case that all the provisions have been duly complied with and in the absence of any material to support the arguments advanced by the learned counsel, we do not find any force in the contention raised alleging any infraction of provision of law in the opinion given by the Advisory Board and the said Board in rejecting the representation of the detenu. This contention therefore, is devoid of force."
7.4 In case of 'SUBRAMANIAN VS. STATE OF TN & ANOTHER', (2012) 4 SCC 699; the Apex Court was considering the as to when would be the public order can be said to be disturbed. It denotes the tempo of the community, the use of the weapons and the damage caused to the public and private property, threatening public tempo and creating panic amongst the people in a locality and this was held sufficient to disturb the public order. The relevant observations are as under:
Page 10 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021C/SCA/9515/2020 JUDGMENT "9) With regard to the first submission that no case is made out for preventive detention by invoking the provisions of T.N. Act 14 of 1982, though the ground case incident arose out of a land dispute between the detenu and the de facto complainant, however, the argument that it is only a law and order problem and that public order was not disturbed is contrary to the facts and equally untenable. As rightly pointed out by Mr. Guru Krishnakumar, the Detaining Authority, on consideration of materials placed has found that the accused caused damage to both public and private properties, threatened the public and also created a situation of panic among the public. In this regard, it is useful to refer the materials narrated in the grounds of detention which are as follows:
"On 18.07.2011, at about 10:00 hours, while Kaliyamoorthy was available in the STD booth, Kajamalai Kadaiveethi, Kajamalai, Tiruchirapalli city, the accused Kajamalai Viji @ Vijay armed with aruval, his associates Manikandan, Uthayan, Sathiya, Sivakumar armed with Kattas came there. The accused Kajamalai Viji @ Vijay abused Kaliyamoorthy in a filthy language, threatened to murder him with aruval by saying "Have you become such a big person to give complaints against me. You bastard, try giving a complaint, I will chop you down right here."
His associates threatened him with their respective kattas. Thereafter, the accused Kajamalai Viji @ Vijay caused damage to the glasses, chair and stool available in the shop. While Kaliyamoorthy questioned them, the accused Kajamalai Viji @ Vijay slapped him on the face. Kaliyamoorthy raised alarm for rescue. The general public came there and they were threatened by the accused Kajamalai Viji @ Vijay and his associates by saying "if anyone turns up as witness, I will kill them." The nearby shop-keepers closed their shops out of fear. Auto drivers took their autos from the stand and left the place. The situation created panic among the public. On the complaint of Kaliyamoorthy, a case in K.K. Nagar P.S. Cr. No. 361/2011 u/s 147, 148, 447, 448, 427, 294(b), 323, 506(ii) IPC and 3 P.P.D. Act was registered."
10) From the above materials, the Detaining Authority was satisfied that the detenu is habitually committing crimes and also acting in a manner prejudicial to the maintenance of public order and as such he is a `goonda' as contemplated under Section 2(f) of the T.N. Act 14 of 1982. The order further shows that the Detaining Authority found that there is a compelling necessity to detain him in Page 11 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT order to prevent him from indulging in such activities in future which are prejudicial to the maintenance of public order. After narrating the details of the ground case and after adverting to earlier instances commencing from the years 2008 and 2010, the Detaining Authority has concluded as under:-
"Hence, I am satisfied that the accused Kajamalai Viji @ Vijay is habitually committing crimes and also acting in a manner prejudicial to the maintenance of Public order and as such he is a Goonda as contemplated under Section 2(f) of the Tamil Nadu Act No. 14 of 1982. By committing the above described grave crime in a busy locality cum business area, he has created a feeling of insecurity in the minds of the people of the area in which the occurrence took place and thereby acted in a manner prejudicial to the maintenance of public order."
11) It is well settled that the court does not interfere with the subjective satisfaction reached by the Detaining Authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the Detaining Authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the Court but for the Detaining Authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion."
7.5 Reliance is also placed on the decision of this Court in Special Civil Application No. 6414 of 2020, Dated : 12.06.2020, where, the Court was considering the question of detaining authority having termed the petitioner as the dangerous person under Section 2(C) of the PASA Act. Relying on the decision of the Apex Court in 'PUSHKER MUKHERJEE V. STATE OF WEST BENGAL', AIR 1970 SC 852, 'DR. RAM MANOHAR LOHIA V. STATE OF BIHAR & OTHERS', (1966) 1 SCR 709 and Page 12 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT 'DARPAN KUMAR SHARMA ALIAS DHARBAN KUMAR SHARMA V. STATE OF T.N. AND OTHERS', AIR 2003 SC 971 and other decisions, the Court held that the detaining authority failed to substantiate the aspect that the alleged anti-social acts of the petitioner-detenu adversely affected or likely to adversely affect the maintenance of public order. Profitable, it would be to reproduce the relevant observations, which read thus:
4. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the breach of public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(c) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(c) of the Act.
Except general statements (two FIRs), there is no material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order. In this connection, it will be fruitful to refer to a decision of the Hon'ble Supreme Court in Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852, where the distinction between 'law and order' and 'public order' has been classically laid down, which is as under:
"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive Page 13 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."
5. The distinction between "public order" and "law and order" has been carefully defined in a Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dr. Ram Manohar Lohia v. State of Bihar & Others, (1966) 1 SCR 709. In this judgment, His Lordship Hidayatullah, J. by giving various illustrations clearly defined the "public order" and "law and order". Relevant portion of the judgment reads as under:
"....Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary Page 14 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order".
One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State...."
6. In Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and others, reported in AIR 2003 SC 971, the Hon'ble Supreme Court made the following observations:
"The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs.1000/-. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of 'Goonda' the acts prejudicial to public order are 'when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order'. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention."
7. In Siddharth @ Sindhu Laxmanbhai Thorat v. District Magistrate, Navsari, in Letters Patent Appeal No.1020 of 2019 dated 08.05.2019, this Court has made following observations:
"8. Having regard to the facts and circumstances of the case, We find that though there are powers available under section 3(1) of the Act, Page 15 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT ordinary law of Indian Penal Code under which FIRs are registered in four offences for which punishment is prescribed in the Indian Penal Code, is sufficient and order of detention cannot be passed as a short cut to exhaust such remedy. Ordinarily, this Court will be loath in interfering with subjective satisfaction of the detaining authority. While arriving at subjective satisfaction, the detaining authority is supposed to undertake objective assessment of the material available. In this connection, we may refer to the judgment of this Court in Letters Patent appeal No.2732 of 2010, dated 28.3.2011 in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others, wherein, this Court has quoted the observations made by Apex Court in the case of Pushker Mukherjee vs. State of West Bengal, reported in AIR 1970 SC 852, wherein distinction is drawn between public order and law and order. The Supreme Court observed in the said judgment as under:
"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."
8. It is also fruitful to refer to the judgment of the Hon'ble Supreme Court in the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, wherein, the Hon'ble Supreme Court has observed as under:
Page 16 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021C/SCA/9515/2020 JUDGMENT "... Public order was said to 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 even 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 tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act...."
9. Further in the case of Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta, Commissioner of Police and Others, 1995 (2) GLR 1268 observed as under:
"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 abets the commission of any of the offences punishable under Chapter XVI or Chapter 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 Aiyar, Reprint Edn. (1987), p. 499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to 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 Edn., p.
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 Gopalanchari v. State of Kerala, AIR 1981 SC 674, this Court had an occasion to deal with expressions like "bad habit", 'habitual', 'desperate', 'dangerous', and Page 17 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT 'hazardous'."
7.6 In 'Mustakmiya Jabbarmiya Shaikh' (Supra), the Court examined the expression 'habit' or 'habitual' offender to held that 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. However, it does not refer to the frequency of the occurrence and invariably the practice and the habit.
7.7 This Court in Special Civil Application No. 8592 of 2020 also was considering the case of the petitioner, who was detained under Section 2(C) of the PASA Act as a dangerous person, on the basis of the criminal case registered against him for the offence under the Disaster Management Act, on the ground that the activities of the petitioner was affecting the maintenance of the public order and the order under challenge was not upheld. While so doing, the Court relied on the decision of 'DR. RAM MANOHAR LOHIA' (Supra).
7.8 In 'Commissioner of Police V. C. Anita (Smt.)', (2004) 7 SCC 467, the Apex Court examined the issue of 'public order' and 'law and order' to hold and observe thus:
...."the crucial test is whether the activities of the detenu were prejudicial to public order. While the expression' law and order' is wider in scope inasmuch as contravention of law always affects order, 'public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public Page 18 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of law and order and public order is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it would raise problem of law and order only. It is the length, magnitude and intensity of terror waves unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that concerning law and order. The question to ask is:
' Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?
This question has to be faced in every case on its facts."
7.9 As can be noticed from the decision of the Apex Court in 'PUSHKER MUKHERJEE' (Supra), it is not a case of two people quarreling and fighting with each other either in their house or in the streets, and therefore, there was disorder, but, not public disorder. Such cases are dealt with the ordinary criminal laws and obviously, no person could have been detained on the ground that they were disturbing public order. Such contravention of the law would always vitiate the order, as is held by the Apex Court. But, before it is said to have affected the public order, it must affect the public at large. Therefore, the Court has drawn a line, demarcating between serious and grave danger and injury to the public interest and relatively minor breach of peace of purely local, which Page 19 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT is primarily of local and is not likely to affect the public order. It would be vital for this Court to consider, as to whether, it can be said to be mere disturbance of law and order, leading to disorder, as provided under the PASA Act.
7.10 The public order, as held in case of 'ARUN GHOSH' (Supra), is said to embrace more of the community than law and order. The Court even went to an extent to state that public order is the even tempo of the life of the community taking the country as a whole or even 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 tranquility.
7.11 On the basis of the law on the subject, what needs to be regarded by this Court is, as to whether, the kind of infraction or the order can be regarded as prejudicial to the maintenance of the law and order or whether the same would be governed under the public order which has disturbed the tranquility of the society in the specified areas! 7.12 On the strength of the law on the subject, if, the actions of the petitioner are considered from the material, which has been presented on record, this Court notices that there are two FIRs registered against him, which speaks of the theft of motorcycles. The person had gone to serve, after parking his motorcycle in the parking and when he returned, he found the same to be missing. Likewise, the second FIR filed with the JP Road Police Station also speaks of such theft of the vehicle by unknown persons. It is vital to make a mention, at this stage, the various statements recorded of the police personnel, who had formed a team at DCB Police Station. There was increase in number of theft of motorcycles within the Page 20 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT city of Vadodara, and therefore, various teams were formed and used of CCTV footages and surveillance and other modes were also used to detect the crime. In such an attempt of nabbing the criminals, while Team- 2 was in patrolling on an input received that some persons were trying to sell the motorcycles, which were allegedly stolen, those persons were cordoned and the motorcycle with engine and chassis number, but, without any RTO registration was found. Thereafter, it was realized that there had been theft of about 10 motorcycles and later on, the father of the petitioner produced the same. The details of the same is forming the part of the statement of the police witnesses as well as the secret witnesses.
7.13 At the first go, this may appear to be the case of only two FIRs, and therefore, the question arose as to whether, the expression 'habit' or 'habitual' can be applied to someone, who is allegedly involved in two of such crimes. As held in the case of 'Mustakmiya Jabbarmiya Shaikh' (Supra) and other decisions that it does not refer to the frequency of the occasion alone, but to the invariability of practice and the habit which has to be proved by totality of facts.It is the repeated and persistent acts where the number of FIR alone are not the determining factor. The complicity of a person in an offence with substantive evidence and material, if has led to conclude that a particular person is a "dangerous person", it is a reasonable conclusion that the person is a habitual criminal. In the case on hand, it can, surely, be stated that the acts of the petitioner are, though, directed against individuals or in essence in a locality, his act determines that it not only amounts to disturbance of the law and order but also essentially and materially affect the public order.
This, surely, cannot be said to be a breach of peace of local significance, injuring only the specific individual and noticing the number of theft of motorcycles and the plethora of material to substantiate this aspect which Page 21 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021 C/SCA/9515/2020 JUDGMENT created serious panic and fear in the minds of people in a wide spectrum of area, concerning their property, the petitioner would be covered under the definition of a dangerous person and it will be difficult for this Court to hold that the subjective satisfaction arrived at by the respondent-authority is without any valid basis, necessitating any indulgence.
8. Resultantly, this petition fails and is DISMISSED. Rule is discharged.
(SONIA GOKANI, J) MISHRA AMIT V./UMESH Page 22 of 22 Downloaded on : Thu Feb 25 09:12:28 IST 2021