Gujarat High Court
Shamjibhai Manjibhai Patel vs Commissioner Of Police And Anr. on 29 April, 1992
Equivalent citations: (1992)2GLR1360
JUDGMENT S.D. Dave, J.
1. The petitioner-detenu Samjibhai Manjibhai Patel, by filing the present Habeas Corpus Petition under Article 226 of the Constitution of India, challenges the orders of detention pronounced by the Commissioner of Police, City of Ahmedabad, respondent No. 1 herein, Annexure 'A' dtd. 26th September, 1991, saying that, the petitioner-detenu requires to be preventively detained under the provisions of PASAA 1985.
2. The orders of detention dated 26th September, 1991 and the grounds of detention bearing even date have been duly furnished to the petitioner-detenu. The reference to the grounds of detention would go to show that nowhere it has been stated that the petitioner-detenu is a "dangerous person" within the meaning of Section 2(c) of the PASAA 1985. Any how, the mention of certain criminal cases registered against the petitioner-detenu and the recital in respect of certain statements recorded by the Sponsoring Authority would go to show that the petitioner-detenu has been treated as a "dangerous person" within the meaning of Section 2(c) of PASAA 1985. The subjective satisfaction arrived at, by the Detaining Authority, is that the activities of the petitioner-detenu affect adversely or are likely to affect adversely, the maintenance of the public order. It appears that the above said subjective satisfaction has been reached on the basis of four criminal cases registered against the petitioner-detenu at Bapunagar Police Station in respect of the theft of motor vehicles, namely Hero Honda Motor Cycles. It is also averred in the grounds of detention that the petitioner-detenu is fierce and headstrong person, picks up quarrels with the citizens and threatens them of dire consequences and thus his activities affect or are likely to affect adversely the maintenance of the public order.
3. The foremost contention raised by the learned Advocate Miss Kachhavah appearing on behalf of the petitioner-detenu is, that firstly the Detaining Authority was required to record the subjective satisfaction to the effect that the petition.ir-detinu is a "dangerous person" within the meaning of Section 2(c) of the PASAA 1985 and secondly that his activities affect or are likely to affect adversely, the maintenance of the public order. But in the submissions of Miss Kachhavah, none of the above said two ingredients can be elicited from the subjective satisfaction allegedly recorded by the Detaining Authority, vitiating the orders of detention.
4. When reference is made to the relevant provisions of the PASAA 1985, it would become clear that the Act has been meant for the preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers, with a view to prevent them from indulging into anti-social and dangerous activities prejudicial to the maintenance of public order. Section 3 of the Act 1985 would further go to show that though there is a deeming provision contained under Sub-section (4) of Section 3, the Detaining Authority has got to record a subjective satisfaction, that the detenu who is either a bootlegger or a dangerous person or belongs to any other category of person, as described and defined in the definition clauses, acts in a manner prejudicial to the maintenance of the public order. A bare reading of the definition clause and the provisions contained under Section 3 of the Act 1985 would go to show that person cannot be detained under the relevant provisions of the PASAA 1985 unless and until, the Detaining Authority is subjectively satisfied that the detenu falls in one of the above said categories and that his activities are such that they affect or are likely to affect the maintenance of the public order. The Scheme of the Act is so eloquently clear, that no assistance of case law in this respect would be required to support or strengthen this view, culminating from a bare reading. Any how certain Supreme Court pronouncements in this respect can be seen. In Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and Anr. , it has been made clear that merely because the detenu was a bootlegger within the meaning of Section 2(b) of the Act of 1985, he could not have been preventively detained under the provisions of the PASAA 1985. Unless as laid down in Sub-section (4) of Section 3 of the Act his activities as a bootlegger, affect adversely or were likely to affect adversely the maintenance of the public order. (Emphasis supplied)
5. In Rasidmfya @ Chhava Ahmedmiya Shaikh v. Police Commissioner of Ahmedabad and Anr. , the same view has been reiterated. It has been made clear in this decision that, in order to clamp an order of detention upon a bootlegger under Section 3 of the Act, the Detaining Authority must not only be satisfied that the person is a bootlegger within the meaning of Section 2(b) but also that the activity of the said bootlegger affects adversely or is likely to affect adversely the maintenance of public order (Emphasis supplied). This view expressed by the Supreme Court in case of Rasidmiya (supra) confirms the earlier view of the Supreme Court in case of Plyush Kantilal Mehta (supra).
Therefore from the above said two Supreme Court decisions it is abundantly clear that before a person can be detained either as a bootlegger or a dangerous person the Detaining Authority has to reach a subjective satisfaction, that his activities affect adversely or are likely to affect adversely the public order situation.
6. The contentions raised by Miss Kachhavah therefore are required to be examined in the background of the above said settled legal position. As indicated above, the first contention raised by Miss Kachhavah is that while recording the subjective satisfaction in respect of the preventive detention of the petitioner four criminal cases which were pending investigation at the relevant time, could not have been taken into consideration. Incidentally it requires to be appreciated that the petitioner-detenu was arrested on September 23, 1991, after the registration of the above said offences at Bapunagar Police Station and was subsequently bailed out on September 26, 1991. It also requires to be incidentally noticed that the above said four cases have resulted into acquittal by the orders pronounced by the Competent Criminal Court on 9-12-1991. Indeed the above said aspect of the case regarding, the acquittal of the petitioner-detenu, in the above said four cases is wholly immaterial for the purpose of recording of the subjective satisfaction. Any how the contention raised by Miss Kachhavah, that the Criminal Cases registered against the petitioner-detenu which were pending investigation could not have been taken into consideration, must be accepted Without any hesitation whatsoever. Miss Kachhavah, in support of her contention has placed reliance upon the Supreme Court decision in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr., reported in 1990 (2) GLH 137. In this decision, as the facts would show, there were as many as seven criminal cases registered against the petitioner-detenu during the relevant period. Any how the Supreme Court has pointed out that merely on consideration of the three criminal cases which were under investigation and were yet to be decided the Detaining Authority could not have come to the subjective satisfaction that the detenu was a 'dangerous person' who habitually indulges in committing offences referred to in Section 2(c) of the Act. This decision of the Supreme Court, clearly supports the contention which is being raised by Miss Kachhavah for the petitioner before us. On the basis of the above said principle laid down by the Supreme Court, it shall have to be accepted that the Detaining Authority could not have utilised the registration of the above said four criminal cases against the petitioner-detenu because at the relevant time they were all under investigation.
7. If the above said four cases, which form the material and important base of the grounds of detention are taken away, then the Habeas Corpus Court is left with the statements allegedly recorded by the Sponsoring Authority, with a view to sponsor the detention of the detenu by the Detaining Authority. The grounds of detention do say in nutshell that the petitioner-detenu used to indulge in the activity of committing theft of motor vehicles like Hero Honda Motor Cycles and that he used to carry with him deadly weapon and used to extend threats to kill psople and also used to indulge in the activity of beating and assaulting upon the citizms and thereby his activities clearly adversely affected the maintenance of public order. The contention raised by Miss Kachhavah in respect of this recital in the grounds of detention and the statement recorded by the Sponsoring Authority is, that even from this literature the Detaining Authority could not have reached the subjective satisfaction that the petitioner-detenu is a dangerous person and that his activities affect adversely or are likely to affect adversely the maintenance of public order. In support of her contention Miss Kachhavah has firstly placed reliance upon the decision of the Supreme Court in case of Piyush Kantilal Mehta (supra). We have made a reference to the above said decision while endorsing the views expressed by Miss Kachhavah that a person can be detained as a dangerous person only if he is a "dangerous person" within the meaning of Section 2(c) of the PASAA 1985 and that bis activities affect or are likely to affect adversely the maintenance of public order. At this juncture we make a reference to this decision once again, with a slightly different purpose. It was of course, a case in respect of a detenu who was branded as a bootlegger within the meaning of Section 2(b) of the PASAA 1985, but there were certain statements recorded by the Sponsoring Authority and the Detaining Authority had sought to derive the subjective satisfaction on the basis of the allegations contained in the statements with a view to come to the conclusion that the activities of the petitioner-detenu affect adversely or are likely to affect adversely the maintenance of the public order. A special mention is required to be made to the gist of the statements as incorporated at Para 15 on Page 496 of the above said decision. In the case before the Supreme Court, the Sponsoring Authority had recorded the statements of five witnesses and the same were utilised by the Detaining Authorityfor the purpose of recoiding the subjective satisfaction. Apart from some minor incidents of beating by the petitioner, the witnesses in the statements had alleged that the petitioner was a high-handed and fierce man and his high-handedness and bickering nature had caused terror to the public of the area and that he was not afraid of the police and that his activities were anti-social and that he always used to keep with him deadly weapons like knife and revolver. According to the say of the witnesses, contained in these statements, the petitioner-detenu used to threaten the surrounding people. Therefore the five witnesses in fact in their statements recorded by the Sponsoring Authority had said that the petitioner-detenu indulged in the above said neffarious, anti-social activities. It should not escape anybody's notice that not only the petitioner was said to be high-handed and fierce by nature, but it was also alleged that he used to cause terror in the public and he was not even afraid of the police and that he used to carry with him dangerous weapons like knife and revolver. Despite the said allegations in the said statements as detailed at Para 15 on Page 496, after a detailed consideration, the Supreme Court has stated very clearly at Para 18 on the next page that though there were such incidents alleged against the petitioner-detenu by the witnesses, in view of the Supreme Court they do not have any bearing on the maintenance of the public order. It is time and again being urged on behalf of the respondents while making a reference to the case of Piyush Kantilal Mehta (supra) that in that case there were no statements before the Detaining Authority and that even if the statements were there, the allegation were not so serious. The clear observations made by the Supreme Court at Para 15 at Page 496 and at Para 18 on the next page do provide a clear answer to such contention often being raised on behalf of the respondents before the Habeas Corpus Courts.
8. A reference to the decision in Rashidmiya @ Chhave Ahmedmiya Shaikh v. Police Commissioner, Ahmedabad , goes to show that the Detaining Authority must also be satisfied that the activity of the detenu affect adversely or are likely to affect adversely the maintenance of public order. It was indeed a case of bootlegger who would fall within the definition of a bootlegger under Section 2(b) of the Act of 1985. But after considering certain Supreme Court decisions and also after taking into consideration the Supreme Court pronouncement in Piyush Kantilal Mehta (supra) it has been brought out that for the purpose of clamping the orders of detention, it would be necessary to record a subjective satisfaction to the effect that the activities of the petitioner-detenu affect or are likely to affect the maintenance of the public order. The Supreme Court on the analysis of the material has said that "the conclusion drawn by the Detaining Authority that the petitioner was a dangerous person was bereft of sufficient material as required under Section 2(c) of the Act of 1985".
9. This decision requires a reference from another angle also. The Supreme Court, while making a reference to the earlier decision in Ashokkumar v. Delhi Administration and by quoting paragraph at Page 1147, has stated that it is the potentiality of the act to disturb the even tempo of the life of the community, which makes it prejudicial to the maintenance of public order.
10. The decision of T. Devaki v. Government of Tamil Nadu and Ors. also calls for careful and analytic glance. In that case the sole ground for the orders of detention was that while a Seminar was going on in a Hall, in which a Minister of the State as well as the District Magistrate were participating, the detenu incited his men saying "finish Minister's chapter today" and after saying so he threw a dagger towards the Minister which had missed the target. Thereafter the detenu had taken out a bottle containing petrol and match box and when he was trying to proceed further in his activity, the P.S.I, had caught hold of the detenu and other persons who were accompanying him. The petitioner-detenu and his companions had also attempted to attack she Minister with the knives in their hands, but were overpowered by the Police and the members of the public.
11. It is in context of these facts, that the Supreme Court has stated that a solitary assault on one individual can hardly be said to have disturbed public peace or place the public order in jeopardy. The important observations of the Supreme Court are yet to follow. It has been pointed out by the Supreme Court that the Detaining Authority had acted on the statement, to the effect that as a result of the incident, those who were present in the Hall, were panicked and had got scared and had ran helter skelter, causing obstruction to traffic on a nearby road. It was also alleged that the attempted murderous assault on the Minister had created a sense of alarm, scare and a feeling of insecurity in the minds of the persons present in the Hall and the detenu's action had interrupted the proceeding of the Seminar for a while. Despite these statements, the Supreme Court has pointedly observed that there was no material to show that the reach and potentiality of the above said incident was so great as to disturb the normal life of the community in the locality or that it disturbed the general peace and tranquillity. These observations according to us are of great importance in assessing the contentions raised by Miss Kachhavah, the learned Advocate for the petitioner duly combated by the other side. In the instant case also as it would become clear by a reference to the statements, that there is the chanting of selective phrases that people were panicked and they were scared, the assaults had obstructed the Traffic on a nearby road, and a sense of insecurity prevailed in the locality. The Supreme Court, with a view to point out that such a casual statutory chanting which always finds place in the statements to be recorded would not give birth to a genuine subjective satisfaction that the alleged activity had reached the Public Order situation has observed:
Repetition of these words in the grounds are not sufficient to inject the requisite degree of quality and potentiality in the incident in question.
12. In Mrs. Harpreet Kaur v. State of Maharashtra and Anr., Judgment Today 1992 (1) SC 502, the Supreme Court was once again concerned with a distinction between the public order situation and law and order situation. It was a case in which, the Police personnel maintaining a watch on vehicles passing near the fish market, under the Matunga Police Station had seen a fiat car coming there at about 8.45 hrs. and though the police party had signalled the driver to a stop, the detenu who was driving the car, had accelerated the car and driven the same towards the Police party giving rise to an apprehension in their minds that they were likely to be run over. The car had rushed towards the Police party, the detenu had hurled abuses and kept driving his vehicle recklessly and had dashed against the pedestrian causing injuries to him and later on the fiat car driven by the detenu had dashed against a stationary taxi damaging it. The above said were the facts with which the Supreme Court was concerned in the above said case. One of the contentions raised by the learned Counsel Mr. Chitale, appearing on behalf of the petitioner-detenu was that the activity of the detenu could have been said to be prejudicial only to the maintenance of "Law and Order" and not to the maintenance of "Public Order". At para 10 of the judgment the Supreme Court has pointed out the distinction between the "Public Order" and "Law and Order" situation and has made a reference to as many as six pronouncements of the Supreme Court at Para 11 to 16. The decisions referred to by the Supreme Court may be cited thus:
(1) Ram Manohar Lohia v. State of Bihar .
(2) Arun Ghosh v. State of West Bengal .
(3) Madhu Limaye v. Ved Murti .
(4) Kanu Biswas v. Slate of West Bengal .
(5) Ashok Kumar v. Delhi Administration .
(6) Subhash Bhandari v. District Magistrate, Lucknow .
13. After reproducing the ratio laid down by the Supreme Court in the above said six decisions and after considering the same, the Supreme Court has said that from the above said law laid down by the Supreme Court, it follows that it is the degree and the extent of the reach of the objectionable activity upon the society, which is vital for considering the question whether a man has committed only a breach of "Law and Order" or has acted in a manner likely to cause disturbance to "Public Order". The Supreme Court has also pointed out that the facts of each case shall have to be carefully scrutinised to test the validity of an order of detention.
The Supreme Court in the eontext has said thus:
In each case, therefore, the Courts have to see the length, magnitude and intensity of the questionable activities of a person to find out whether his activities are prejudicial to maintenance of "Public Order" or only "Law and Order."
Ultimately the Supreme Court has confirmed the Bench decision of the Bombay High Court saying that they are satisfied, in the facts and circumstances of the case that orders of the Bombay High Court do not call for any interference. Thus on the compactus of the decisions referred to by the Supreme Court, in case of Mrs. Harpreet Kaur (supra), it is clear that each case shall have to be judged on its own facts with a view to test the validity of an order of detention on the ground that the alleged activity has a bearing on the public order situation.
14. Incidentally it may be pointed out that the same view has been expressed in one more Supreme Court decision in case of Smt. Victoria Fornandes v. Lalmal Sawma and Ors. . It is with this back ground of an up date legal position that we are expected to proceed to examine the statements recorded by the sponsoring authority and employed as the material by the detaining authority to structure the so called subjective satisfaction.
15. As indicated by us earlier, the petitioner-detenu was arrested in respect of the above said four criminal cases registered against him at Bapunagar Police Station on September 23, 1991 and was bailed out on September 26, 1991. The impugned orders of detention were pronounced on the same day, i.e., on September 26, 1991. The statements of the four witnesses came to be recorded by the Sponsoring Authority on 23-9-1991 and on 24-9-1991. It appears therefore very clearly that the above said statement came to be recorded only after the petitioner-detenu was arrested on 23-9-1991 in respect of the above said four criminal cases. One interesting aspect which also requires to be taken into consideration is the fact that one R.G. Patil, P.S.I, attached to Bapunagar Police Station was on petrolling, and at that time, according to him, he had allegedly seen the petitioner-detenu going with Hero Honda Motor Cycle and later on he was apprehended and after some investigation the above said offences were registered on the same day, i.e., on September 23, 1991.
16. Taking the statements of the four witnesses one after another, it becomes clear that the initial paragraph of the statement of witness No. 1 whose name has not been disclosed, is too vague and general alleging certain anti-social activities on the part of the petitioner-detenu. The second part of the statement is in respect of the incident which had allegedly taken place before about eight days at about 7-00 p.m. at Bapunagar Char Rasta near a bus stand. The witness has stated that he had gone to a Pan Biri Shop with a view to purchase a Pan, but at that time the petitioner-detenu, who was drunk had come there on Hero Honda Motor Cycle, with a hockey and he had indulged in eveteasing and on accosting by the witness, he was enraged and had assaulted upon the witness and had firstly given 2 or 3 first blows and later on had given hockey blows on his back and at that time a crowd of about 100 to 200 people had collected there and the members of the crowd were also threatened. It is also stated that because of this incident, the shops were closed down and there was a traffic jam and the people in the surrounding area were scared. The statement of witness No.2 is also on the same line and refers to an incident which had allegedly taken place before about 5 days at about 9-00 p.m. According to the witness, he was closing his shop for the day and at that time, the petitioner-detenu had approached him and had tried to extort some money from him and on his refusal, he was assaulted upon and thereafter the petitioner-detenu had tried to take some money from his pocket and later on the petitioner-detenu had tried to inflict some injuries on his person by the razor. At that time a crowd of about 100 people came to be collected, the members of which were also threatened and the nearby shops were closed down.
17. Witness No. 3 in his statement dtd. 23-9-1991 refers to an incident which had allegedly taken place before about 15 days, during which the witness was intercepted and the petitioner-detenu had charged him as a 'police agent' and later on had tried to inflict injuries on his person by the dagger. Witness says that because of this incident, a crowd of about 50 to 100 people was collected and that the petitioner-detenu had threatened the members of the crowd as a result of which the shutters of the shops were dropped down and there was a scare and panic in the nearby area. The last statement of witness No. 4 recorded on the very same day is on the same lines. According to the witness, the petitioner-detenu had travelled by the Auto-rickshaw of the witness and on demanding the fare, the petitioner-detenu had taken out Rampuri knife as a result of which a crowd was collected, the shops wera closed down, the traffic had jammed and the people were scared.
18. The above said statements cannot be described or appreciated in a better manner, then has been done by the petitioner-detenu in Ground 'U' at Para 11 of the petition, which may be reproduced thus:
All the four witnesses have all of a sudden appeared before the P.I, Bapunagar after 3-00 p.m. on 23-9-1991 and gave statements of the past incidents almost similar, only by changing the weapon every time, i.e. one says hockey, second says Katar, third says Astra and fourth says Rampuri, and the other story remains the same word to word. It is important to note that the petitioner was never known as the accused before 23-9-1991 at 3-00 p.m. when he was arrested and on the same day before night all the witnesses come forward and give their statements....
19. On the basis of the above said four statements, it has been tried to be urged by the learned A.P.P. that because of the alleged activities enlisted therein there was a clear impact or "reach-potentiality" on the public order situation. In case of Piyush Kantilal Mehta (supra) as pointed out earlier, the allegations were not only similar and akin to the allegation contained in the statements before us, but the allegation had travelled beyond also, because in that case, it was alleged that the detenu used to keep a revolver or a knife with him. Even though and despite of the above said statements the Supreme Court had preferred to take the view that such incidents do not have any bearing on the maintenance of the Public Order. In case of Mrs. T. Devaki (supra) there was an allegation of the panic amongst the people in the Hall and residing in the vicinity. It was also stated that the psople had scared and had run helter skaiter. It was also alleged that there was obstruction to the traffic on the nearby road and the incident had created alarm, scare and a feeling of insecurity in the minds of the persons present in the Hall and outside. Despite the above said chanting of selective phrases in the statements, the Supreme Court has said very clearly that it cannot be said that the above said activities had a reach and potentiality to affect and disturb the normal life of the community in the locality. The Supreme Court has also pointed out that it cannot be accepted that the above said activity had disturbed general peace and tranquillity.
Therefore, on a careful examination of the statements recorded by the Sponsoring Authority and the averments and allegations made thereunder, we feel that even if the above said statements are to be accepted on their face value, disregarding the fact that all of them were recorded after the petitioner-detenu was arrested, it is impossible for us to come to the conclusion that the above said activities had a reach on the public order situation.
20. In view of this position, both the contentions raised by Miss Kachhavah require to be accepted. We accept the first contention raised by Miss Kachhavah that the four cases which were pending investigation could not have been utilised as a meaningful resource for reaching the subjective satisfaction that the pethioner-detenu is a dangerous persons. We also accept the second and the further contention raised by Miss Kachhavah that even if the statements as recorded by the Sponsoring Authority are accepted at their face value, they do not give rise to a situation which can be termed as a "Public Order" situation. As a necessary corollary we shall have to. allow this petition and shall have, to set aside the order of detention by branding it as invalid, illegal and unconstitutional. We therefore hereby allow the present petition and set aside and quash the orders of detention under challenge and direct that the petitioner-detenu be released from the detention and be set at liberty forthwith, if not required in any other criminal case or proceeding. Rule made absolute accordingly.