Gujarat High Court
Mohamad Rajab S/O Abdul Rahim Through ... vs State Of Gujarat on 12 October, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/11475/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11475 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No.
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MOHAMAD RAJAB S/O ABDUL RAHIM THROUGH HIS NEXT FRIEND
FIROZSHAH DAGUSHAH FAKIR
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR GAJENDRA P BAGHEL(2968) for the Petitioner(s) No. 1
MR BHARGAV PANDYA, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 12/10/2020
ORAL JUDGMENT
1. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 10.6.2020 passed by the respondent No.2 in exercise of the powers conferred under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as the "Act of 1985"), detaining the petitioner-detenue as a 'Dangerous Person', as defined Page 1 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT under clause (c) of Section 2 of the Act of 1985.
2. The facts are to the effect that the petitioner came to be detained as 'Dangerous Person' in connection with the First Information Reports, both registered on 14.10.2019 with Khatodra Police Station for the offences punishable under Sections 392, 395, 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. The petitioner was arrested on 21.10.2019 and was granted bail on 21.4.2020 and released on 28.5.2020. As can be seen, the offences are registered in the month of October, 2019 whereas, the respondent No.2 has passed the order on 10.6.2020, detaining the petitioner as 'Dangerous Person' within the meaning of clause (c) of Section 2 of the Act of 1985, i.e., almost after a period of eight months. Therefore, there is a delay in passing the detention order. Hence, the present petition.
3. Mr. Gajendra Baghel, learned advocate for the petitioner submitted that on the basis of mere registration of the First Information Reports, the petitioner cannot be termed as a habitual offender, so as to attract the provisions of clause (c) of Section 2 of the Act of 1985. It is submitted that if the persons were assaulted, they could have immediately informed the police; however, the same has not been done and it is only after a span of more than eight months that the information has been given to the police. It is thus, submitted that the order of detention impugned in the present petition deserves to be quashed and set aside, which has been passed on the ground of registration of the offences under the Indian Penal Code and Gujarat Police Act which, by itself, cannot bring the case of the petitioner - detenue within the purview of the definition under clause (c) of Section 2 of the Act of 1985.
3.1 It is submitted that the illegal activities likely to be carried out or alleged to have been carried out, cannot have any nexus or bearing on the maintenance of public order and at the most, it can be said to be Page 2 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT breach of law and order. Further, except the statement of witnesses, registration of First Information Reports and panchnama drawn in pursuance of the investigation, no other relevant cogent material is on record, connecting the alleged anti-social activities of the detenue with breach of public order. It is further submitted that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order. Therefore, it is urged that the order of detention be quashed and set aside.
4. On the other hand, Mr. Bhargav Pandya, learned Assistant Government Pleader for the respondent - State supported the detention order passed by the authority. It is submitted that sufficient material and evidence was found during the course of investigation, which indicates that the detenue is in habit of indulging into the activity, attracting the provisions of clause (c) of Section 2 of the Act of 1985. Considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this court.
5. Heard Mr. Gajendra Baghel, learned advocate for the petitioner and Mr. Bhargav Pandya, learned Assistant Government Pleader for the respondent - State through video conference.
6. 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 First Information Reports cannot have any bearing on the public order as required under the Act of 1985 and other Page 3 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT relevant penal laws are sufficient enough to take care of the situation. 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 clause (c) of Section 2 of the Act of 1985. 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 sub-section (2) of Section 2 of the Act of 1985. Except general statements, 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 Supreme Court in Pushker Mukherjee v/s. State of West Bengal reported in AIR 1970 SC 852, where the distinction between 'law and order' and 'public order' has been clearly laid down. The Court observed as follow:-
"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."
7. At this stage, it is required to be noted that the Apex Court in the case of Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police & Ors. reported in (1995) 3 SCC 237 has held that the Page 4 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT provisions of the Act are intended to deal with habitual criminal dangerous and desperate outlaws who are so hardened and incorrigible that the ordinary provisions of the penal laws and the moral fear of punishment for crime are not sufficient deterrents for them. Section 3 of the Act of 1985 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. It is observed that the power under the Act of 1985 to detain a person should be exercised with restraint and great caution. In order to pass an order of detention under the Act of 1985, against any person, the detaining authority must be satisfied that he is a 'Dangerous Person' within the meaning of clause (c) of Section 2 of the Act of 1985 who habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act.
8. The Apex Court in paragraphs 8 and 9 has observed thus:-
"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 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 Aiyar, Reprint Edn. (1987), p.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 Edn., page 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a 'dangerous person' unless there is material suggesting his complicity in. such cases which lead to a reasonable conclusion that the person is a habitual criminal. In Gopalanachari v. State of Kerala, AIR 1981 SC 674 this Court had an occasion to deal with expressions like 'bad habit', Page 5 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT '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 abetting the commission of offences which are punishable under Chapter XVI or XVII of the IPC. or under Chapter V of the Arms Act and that a single or isolated act falling under Chapters XVI or XVII of IPC, or Chapter V of Arms Act cannot be characterised as a habitual act referred to in Section 2(c) of the Act.
9. Further, sub-section (1) of Section 3 of the Act confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of 'public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that 'public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub- section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be 'acting in any manner prejudicial to the maintenance of public order' when such person is a 'dangerous person' and engaged in activities which affect adversely or more likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a 'dangerous person' his alleged activities fall within the ambit of the expression 'public order'. A distinction has to be drawn between law and order and maintenance of public order because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of the activities of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this connection it may be stated that in order to bring the activities of a person within the expression of 'acting in any manner prejudicial to the maintenance of public order", the fall out and the extent and reach of the alleged activities must be for such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which deter-mines whether the disturbance caused by such activity amounts only to a 'breach of law and order' or it amounts to 'public order.' If the activity falls within the category of disturbance of 'public order' then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the case of Arun Ghose v. State of West Bengal, (1970) 1 SCC 98 this Court had an occasion to deal with the distinction between law and order and public order.Page 6 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020
C/SCA/11475/2020 JUDGMENT Hidayatullah, C.J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or eves a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquillity. 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 breach of law and order. It has been further observed that the implications of public order are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different, Again in the case of Piyush Kantilal Mehta v. Commissioner of Police, 1989 Supp (1) SCC 322, this Court took the view that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of public order which can be dealt with under ordinary general law of the land."
9. The registration of the two First Information Reports would not provide a justification to hold that the petitioner was habitually committing or attempted to commit or abets the commission of the offences as contemplated under clause (c) of Section 2 of the Act of 1985.
10. Pertinently, none of the aforementioned two incidents can be said to be the incidents affecting the public order, as a result of which, the petitioner can be branded as a 'Dangerous Person' within the meaning of clause (c) of Section 2 of the Act of 1985. Moreover, as is clear from the record, the First Information Reports were filed in the month of October, 2019, as a result whereof, the petitioner was arrested on 21.10.2019 and was granted bail on 21.4.2020 and was released on 28.5.2020; whereas, the order of detention has been passed in the month of June, 2020. Thus, as per the well settled proposition of law, the live-link has been snapped. Further, there is no explanation coming forth on the record about the delay in passing the order of detention Page 7 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020 C/SCA/11475/2020 JUDGMENT dated 10.6.2020.
11. Considering the facts available on record, so also the observations made by the Apex Court in the case of Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police & Ors. (supra), no case is made out against the petitioner and the activities of the petitioner cannot be said to be dangerous to public at large. This court, therefore is of the opinion that the grounds for passing the order of detention, cannot sustain and therefore, it deserves to be quashed and set aside.
12. In view of the above, this court is inclined to allow this petition inasmuch as, simplicitor registration of the First Information Reports by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act of 1985; no other relevant cogent material exists so as to enable the authorities to invoke the power under sub-section (2) of Section 3 of the Act of 1985.
13. In the result, the petition is allowed. The impugned order of detention dated 10.6.2020 passed by the respondent No.2 deserves to be quashed and set aside and is hereby quashed and set aside. The petitioner - detenue is ordered to be set at liberty forthwith, if not required in connection with any other case.
14. Rule is made absolute. Registry to communicate operative part of the judgment to the concerned authority through fax/e-mail, forthwith.
15. Direct service is permitted.
Sd/-
(SANGEETA K. VISHEN,J) binoy/cmk Page 8 of 8 Downloaded on : Tue Oct 13 00:07:55 IST 2020