Rashidmiya
@ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad & Anr [1989] INSC
184 (5 May 1989)
Pandian,
S.R. (J) Pandian, S.R. (J) Ray, B.C. (J)
CITATION:
1989 AIR 1703 1989 SCR (3) 182 1989 SCC (3) 321 JT 1989 (2) 323 1989 SCALE
(1)1592
CITATOR
INFO : RF 1990 SC 496 (10) F 1990 SC2069 (5) RF 1992 SC 979 (15,16,21)
ACT:
Gujarat Prevention of Anti-social
Activities Act, 1985:
Sections,
2(b), 2(c), 3 and 6.
Preventive
detention--Order---Grounds of detention--Severability and validity of--'Bootlegger'--Activities
of--Whether prejudicial to maintenance of public order.
'Dangerous
person'--Detenu--Whether should be a habitual offender under Chapter XVI or
XVII or XXII of Indian Penal Code or under Chapter V of Arms Act.
Words
and Phrases: 'Maintenance of public order'--'Bootlegger'--'Dangerous person
'--Meaning of.
HEAD NOTE:
The
petitioner was detained, under an order passed by the detaining authority under
Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985,
with a view to preventing him from acting in any manner prejudicial to the
maintenance of public order. The detaining authority reached his subjective
satisfaction on the grounds (i) that the detenu was a 'bootlegger' within the
meaning of Section 2(b) of the Act because he was indulging in criminal and
anti-social activities by illegally storing and selling foreign liquor and beer
and that four cases were registered against him under the Bombay Prohibition
Act, 1949; (ii) that he was also a 'dangerous person' within the meaning of
section 2(c) of the Act because he, as a member of a partic- ular gang, was
spreading an atmosphere of fear and terror by beating innocent people in the Ahmedabad
city thus affecting the public order adversely and a case was also registered
against him under Section 120(B), 212 and 307 of the Indian Penal Code, 1860
and Section 25 of the Arms Act besides under the provisions of various other
Acts.
The
petitioner filed a writ petition in this Court challenging the validity of the
detention order contending that the conclusions drawn by 183 the detaining
authority were not supported by materials.
Quashing
the detention order and allowing the Writ Petition,
HELD:
1. To bring a person within the definition of Section 2(c) of the Act it must be
shown that the person either by himself or as a member of or a leader of a gang
habitually commits or attempts to commit or abets the com- mission of offences
punishable under Chapter XVI or XVII or XXII of the Indian Penal Code or any of
the offences punish- able under Chapter V of the Arms Act. It must be shown
that he is habitually committing or attempting to commit or abetting the
commission of offences enumerated therein. [187-H; 188B]
1.1 In
the instant case, the detenu is said to have committed offences under Sections
307, 120-B, 212 of the Indian Penal Code and Section 25 of the Arms Act besides
under the provisions of various other Acts. Only one case registered under the
provisions of Section 307 of the Indian Penal Code and Section 25 of the Arms
Act fails within the said definition clause. The other two offences registered
under Sections 120-B and 212 are not covered under Section 2(c). Therefore,
this solitary incident would hardly be sufficient to conclude that the detenu
was habitually com- mitting or attempting to commit or abetting the commission
of offences. The general and vague allegations made in the grounds of detention
that the detenu was taking active part in communal riots and entered into
conspiracy to spread an atmosphere of terror being a member of a particular
gang in the absence of any specific instance or registration of any case
thereof, cannot be construed as offences falling under any of the above three
chapters of the Indian Penal Code or chapter V of the Arms Act enumerated under
Section 2(c) so as to characterise the detenu as a 'dangerous person'. [188A-E]
2. A
conjoint reading of Section 2(b) and Section 3(4) with the explanation annexed
thereto clearly spells out 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 activities of the said bootlegger affect adversely or
likely to affect adversely the maintenance of public order. [188H, 189A]
2.1 In
the instant case, the vague allegations in the grounds of detention that the detenu
is the main member of a particular gang indulging in bootlegging activities and
that he is taking active part in such dangerous activities, are not sufficient
for holding that his 184 activities affected adversely or were likely to affect
adversely the maintenance of public order in compliance with sub-Section 4 of
the Section 3 of the Act that the activi- ties of the detenu have caused harm, dangeror
alarm or a feeling of insecurity among the general public or any Sec- tion
thereof or a grave or widespread danger to life, property or public health as
per the explanation to Section 3(4). The offences registered in the. four
cases, under the Bombay Prohibition Act, 1949 against the detenu on the ground
that he was dealing in liquor have no bearing on the question of maintenance of
public order in the absence of any other material that those activities of the detenu
have adversely affected the maintenance of public order. [189A-D] Ashok Kumar
v. Delhi Administration, [1982] 2 SCC 403
and Piyush Kantilal Mehta v. The Commissioner of Police, Ahmedabad City and Anr, Judgments Today, [1988] 4 703, applied.
ORIGINAL
JURISDICTION: Writ Petition (Criminal) No. 395 of 1988.
(Under
Article 32 of the Constitution of India).
Miss Kamini
Jaiswal and S.C. Patel for the Petitioner.
T.U.
Mehta and M.N. Shroff for the Respondents.
The
Judgment of the Court was delivered by RATNAVEL PANDIAN, J. This writ petition
under Article 32 of the Constitution of India is filed by the petitioner (the detenu
herein) canvassing the correctness of the detention order dated 30.8.88 made by
the detaining authority namely Commissioner of Police, Ahmedabad city in
exercise of the powers conferred on him under sub-Section 1 of Section 3 of the
Gujarat Prevention of Anti-social Activities Act 1985 (hereinafter referred as
the Act) with a view to preventing the detenu from acting in any manner
prejudicial to the maintenance of public order in the area of Ahmedabad city.
In
pursuance of the above order, the detenu is detained in the Central Jail,' Sabarmati.
The detenu has been furnished with the copies of the grounds of detention and
all other material documents inclusive of the statements of the wit- nesses on
the basis of which the detaining authority reached his subjective satisfaction
for passing this impugned order.
The
sum and substance of the alleged activities of the detenu 185 mentioned in
grounds of detention are that the detenu was indulging in criminal and
anti-social activities in the area of Dariyapur Kalupur of Ahmedabad city by
illegally storing and selling foreign liquor and beer either personally or
through his associates and that in this regard the following four cases were
registered under the provisions of the Bombay Prohibition Act of 1949. We
reproduce that relevant portion giving the details of the cases as found in the
grounds of detention:
Sr.
No. Police CR No. Section Qty Disposals Station Seized
1 Kalupur
130/88 Prov. 66(B) 8 Ltr. beer Pending in court
2. Kalupur
152/88 -- 500 ML beer order pending
3. Kalupur
156/88 268 bottle Pending in foreign and Court 122 bottle box
4. Dariyapur
80/88 Prov. 66(B) foreign order pending 65(A)81 liquor From the above
materials, the detaining authority has concluded that the detenu was a
bootlegger within the mean- ing of Section 2(b) of the Act.
It is
further stated that the detenu besides indulging in the activities of
bootlegging, he and his companions were creating terror in that area by beating
innocent people in public in Ahmedabad city which in turn affected adversely
the maintenance of public order.
Further
it is stated that the detenu and his associates always armed with dangerous
weapons like bombs, cartridges etc. were threatening the people in the city of Ahmedabad in respect of which a case has been
registered which is re- produced as set out in the grounds of detention:
S. No.
Police Station CR No. Section Disposal (1) Kalupur 2/88 IPC 307, 120(B) Under
212, Terrorist inquiry Act, Sec. 3(1)(3) 186 Explosive Sec. 4, 5 Arms Act;
25(1)(A)(c);
Bombay
Police Act 135(1) In addition to the above it is alleged that the detenu, being
the main member of the gang of Abdul Latif Abdul Wahab Shaikh entered into a
conspiracy to spread an atmosphere of fear and terror among the residents of
that area and also a sense of insecurity among the people.
On the
above materials, mentioned in the grounds of detention, the detaining authority
has come to the conclu- sion that the detenu is a 'dangerous person' within the
meaning of Section 2(c) of the Act.
Thus
the detaining authority. has found that the detenu was not only a 'bootlegger'
but also a 'dangerous person' within the definitions of Section 2(b) and 2(c)
of the Act.
For
drawing the above conclusion the detaining authority has also relied upon the
statements of the witnesses whose names are not disclosed.
Assailing
the legality of the impugned order the learned counsel appearing on behalf of
the petitioner put forth several contentions one of which being that the
conclusions drawn by the detaining authority that the detenu is a 'bootlegger'
as well as a 'dangerous person' are not sup- ported by the materials placed
before him and that there is nothing to show that the activities of the detenu
either affected or were likely, to affect adversely the maintenance of public
order.
We
shall now deal with the above contention in the light of the construction of
the expressions 'bootlegger' and 'dangerous person' read with Section 3(4) of
the Act with the explanation annexed thereto.
The
expression "bootlegger" and "dangerous person" occurring in
Section 2(b) and (c) of the Act read as fol- lows:
"2(b)
"bootlegger" means a person who distills, manufac- tures, stores,
transports, imports, exports, sells or dis- tributes any liquor, intoxicating
drug or other intoxicant in contravention of any provision of the Bombay
Prohibition Act, 1949 (Bom. XXV of 1949) and the rules and orders made thereunder,
or any other law for the time being in 187 force or who knowingly expends or
applies any money or supplies any animal, vehicle, vessel or other conveyance
or any receptacle or any other material whatsoever in further- ance or support
of the doing of any of the things described above by or through any other
person, or who abets in any other manner the doing of any such thing;
2(c)
"dangerous person" means a person, who either, by himself or as a
member of or leader of a gang, habitually commits, or attempts to commit or
abets the commission of offences, punishable under Chapter XVI or Chapter XVII
or Chapter XXII of the Indian Penal Code, (XLV of 1860), or any of the offences
punishable under Chapter V of the Arms Act, 1959 (54 of 1959)." To bring
the detenu herein within the definition of Section 2(b) of the Act, four cases
are made mention of in the grounds of detention which we have already
extracted.
All
the four cases were registered in the year 1988. The trials in respect of two
of the four cases were pending before the Court and in respect of the other
two, the orders were pending. Notwithstanding the result of those cases and the
quantity of liquor seized from the detenu, we shall examine the legality of the
detention order, in the ensuing part of this judgment, even assuming that the detenu
is a 'bootlegger' within the ambit of Section 2(b) of the Act.
For
the conclusions drawn by the detaining authority that the detenu was a
'dangerous person' as defined under Section 2(c) of the Act, the detaining
authority has taken into consideration the registration of a case in crime
number 2/88 in Kalupur police station. Added to that, it is generally stated in
the grounds of detention that the detenu and his associates were beating the
people in public and that the detenu had entered into a conspiracy to spread an
atmosphere of fear and terror in the city of Ahmedabad city being the main member of the gang of Abdul Latif Abdul
Wahab Shaikh. But no specific instance is given either in the grounds of
detention order or in any of the statements of the witnesses.
To
bring a person within the definition of Section 2(c) of the Act it must be
shown that the person either by him- self or as a member of or a leader of a
gang habitually commits or attempts to commit or abets the commission of
offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code
or any of the offences punishable under 188 Chapter V of the Arms Act. In the
case registered in crime No. 2/88 in Kalupur police station, the detenu is said
to have committed offences under Sections 307, 120-B, 212 of the Indian Penal
Code and Section 25 of the Arms Act besides under the provisions of various
other Acts. Though Section 307 falls under Chapter XVI, the offences under
Sections 120-B and 212 fall under Chapters VI and XI of the Indian Penal Code
respectively. Therefore, these two offences are not covered under Section 2(c).
The offence registered under Section 25 of the Arms Act falling under Chapter V
of the said Act is included within the said definition clause. But what the
section requires is that to bring a person within that definition, it must be
shown that he is habitually committing or attempting to commit or abetting the commis-
sion of offences enumerated therein. In the instant case, the registration of
only one case is mentioned under the provisions of Section 307 of IPC and 25 of
the Arms Act falling within the said definition clause. Therefore, this
solitary incident would hardly be sufficient to conclude that the detenu was
habitually committing or attempting to commit or abetting the commission of
offences. The general and vague allegations made in the grounds of detention
that the detenu was taking active part in communal riots and entered into
conspiracy to spread an atmosphere of terror being a member of the gang of
Abdul Latif Abdul Wahab Shaikh in the absence of any specific instance or
registration of any case thereof, cannot be construed as offences falling under
any of the above three chapters of the IPC or Chapter V of the Arms Act
enumerated under Section 2(c) so as to characterise the detenu as a 'dangerous
person'.
Hence
we are of the view that the conclusions drawn by the detaining authority that
the detenu is a dangerous person is bereft of sufficient material as required
under Section 2(c). Therefore, we hold that the detenu cannot be termed as a
'dangerous person'.
No doubt
as per Section 6 of the Act, grounds of deten- tion are severable and as such
the order of detention should not be deemed to be invalid or inoperative if one
or some of the grounds are invalid. In the present case, the question for
consideration is that even if the impugned order cannot be sustained on the
ground that the detenu is a 'dangerous person', can it be sustained on the
other ground that the detenu is a 'bootlegger'. The answer is that the order
could be sustained, provided there are materials to show that the bootlegging
activities of the detenu affected adversely or were likely to affect the
maintenance of public order. A conjoint reading of Section 2(b) and Section
3(4) with the explanation annexed thereto clearly spells out 189 that in order
to clamp an order of detention upon a 'boot- legger' 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 activi- ties of the said
bootlegger affect adversely or likely to affect adversely the maintenance of
public order. Reverting to the facts of this case, the vague allegations in the
grounds of detention that the detenu is the main member of the gang of Abdul Latif
Abdul Wahab Shaikh indulging in bootlegging activities and that the detenu is
taking active part in such dangerous activities, are not sufficient for holding
that his activities affected adversely or were likely to affect adversely the
maintenance of public order in compliance with subSection 4 of Section 3 of the
Act that the activities of the detenu have caused harm, danger or alarm or a
feeling of insecurity among the general public or any Section thereof or a
grave or widespread danger to life, property or public health as per the
explanation to Section 3(4).
The
offences registered in the above mentioned four cases against the detenu on the
ground that he was dealing in liquor have no bearing on the question of
maintenance of public order in the absence of any other material that those
activities of the detenu have adversely affected the mainte- nance of public
order.
There
is a catena of decisions dealing with the question of 'maintenance of public
order'. But we think that it will be sufficient to make reference to the
following two deci- sions.
This
Court in Ashok Kumar v. Delhi Administration, [1982] SCC 403 has observed:
"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."
In a recent decision of this Court in Piyush Kantilal Mehta v. The Commissioner
of Police, Ahmedabad City and Anr., Judgments Today 1988 (4) 703 a question similar
to one before us arose for consideration. In that case, the allega- tions in
the grounds of detention were that the detenu was a prohibition bootlegger,
that he was indulged into the sale of foreign liquor and that he and his
associates indulged in use of force and violence and also beating innocent
citizens by which an atmosphere of fear was created. In that case the detenu
was alleged to have been caught red-handed possessing English wines with
foreign marks and in the second occasion he was caught while shifting 296 190
bottles of foreign liquor in an Ambassador car. While deal- ing with that case,
this Court observed as follows:
"It
is true some incidents of beating by the petitioner had taken place, as alleged
by the witnesses. But, such inci- dents, in our view, do not have any bearing
on the mainte- nance of public order. The petitioner may be punished for the
alleged offences committed by him but, surely, the acts constituting the
offences cannot be said to have affected the even tempo of the life of the
community. It may be that the petitioner is a bootlegger within the meaning of
Section 2(b) of the Act, but merely because he is a bootlegger he cannot be
preventively detained under the provisions of the Act unless, as laid down in
sub-section (4) of Section 3 of the Act, his activities as a bootlegger affect
adversely or are likely to affect adversely the maintenance of public
order." The above observation, in our view, will be squarely applicable to
the facts of this case, in view of the reasons, we have already adverted to in
the earlier portion of this judgment.
Hence
for all the reasons aforesaid, we allow the Writ Petition and quash the
impugned order of detention and direct the detenu to be set at liberty
forthwith.
T.N.A.
Petition allowed.
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