Prakash vs State of Gujarat

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V.M. Sahai, J.—We have heard Mr. V.M. Pathan, learned counsel for the appellant and Mr. Vishal Patel, learned Assistant Government Pleader for the respondents.

This Letters Patent Appeal No. 920 of 2014 has been filed challenging the judgment and order dated 4th August 2014 passed by the learned Single Judge in Special Civil Application No. 1954 of 2014, wherein the learned Single Judge, on the basis of three FIRs lodged against the appellant, dismissed the petition. The following FIRs came to be lodged against the present appellant:

In the two cases, the offence disclosed in the FIRs was under Section 25 of the Arms Act and in one case the offence disclosed in the FIR was under Sections 307, 143, 148, 149, 447, 336 of IPC as well as Section 25 of the Arms Act as well as Section 135(1) of the Gujarat Police Act. The allegation in the case under Section 307 was that the petitioner has fired in the air. Now the question which has arisen for consideration before the learned Single Judge was whether the appellant falls within the definition of dangerous person as provided in PASA. The dangerous person has been defined u/s. 2(c) of the PASA, which reads as under:

"2(c) "dangerous person" means 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 Indian Penal Code (GLV of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959);"

In the aforesaid definition, the word ''habitually'' is very important. Habitually means repetitive. Therefore, for passing the order of preventive detention, a single act cannot be said to be forming the habit of the person for bringing the person within the definition of dangerous person. The act complained of must be repeated more than once. The Apex Court in Vijay Narain Singh Vs. State of Bihar and Others, has held as under:-

".................... The expression ''habitually'' means ''repeatedly'' or ''persistently''. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an interference of habit. It connotes frequent commission of acts omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or commissions."

From the definition of dangerous person it is clear that the appellant should be habitual offender and a single act cannot form basis to hold that the appellant is a habitual offender. In the first case under the Arms Act, two country made pistols and six live cartridges were recovered and in the third case one country made pistol and one live cartridge was recovered. Merely by recovery of country made pistols or cartridges would not make a person dangerous to the society. In our opinion, the appellant does not fall within the definition of dangerous person. We are, therefore, of the considered opinion that the appellant is not a dangerous person and his act did not amount to disturbing the maintenance of public order irrespective of the fact that he has fired in air. Therefore, the preventive detention order dated 21.01.2014 cannot be maintained and deserves to be set aside.

This Letters Patent Appeal succeeds and is allowed. The judgment and order dated 4th August 2014 passed by the learned Single Judge in Special Civil Application No. 1954 of 2014 is set aside. The order of detention dated 21.01.2014 passed against the appellant is quashed and set aside. The appellant viz. Prakash @ Pintu Girdharbhai Marathi (Tanpure) shall be released forthwith if he is not required in any other case. There shall be no order as to costs. Direct service is permitted.