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Judgment
Ilesh J. Vora, J
By way of this petition under Article 226 of the Constitution of India, the petitioner through his brother Ismail Abdul Mahammad Bada has
challenged the legality of the order of detention of his brother viz. Shaukat Abdul Mahammad Bada dated 24.04.2020 passed by respondent no.2 â€
District Magistrate, Bharuch, under sub-section 2 of Section 3 of the Gujarat Prevention of Anti- Social Activities Act, 1985 (“P.A.S.A Act†for
short) by detaining the detenue as a dangerous person as defined under Section 2 (c) of the PASA Act with a view to prevent the detenue from acting
in any manner prejudicial to the maintenance of public order in the area of Bharuch. In pursuance of the said order dated 24.04.2020, the detenue has
been detained in Central Jail, Lajpore at Surat.
The detenue came to be detained as a dangerous person on his involvement in the offence i.e. FIR being C.R.No.A- 11199034200046 of 2020
registered at Kavi Police Station, Tal.: Jambusar, District : Bharuch, under Sections 332, 186, 188 of the IPC, Section 3 of Epidemic Decease Act and
under Section 135 of the Gujarat Police Act.
Learned counsel for the petitioner has raised the following contentions:
(I) The impugned order is in violation of the Constitutional guarantees enshrined under the Constitution of India, more particularly in violation of
Articles 21 and 22 of the Constitution of India;
(II) Except the aforesaid FIR, there is no other criminal antecedent of the detenue;
(III) The detaining authority has considered the solitary offence for labeling the petitioner as dangerous person.
(IV) That there is no contemporaneous material with the detaining authority to indicate that the public order is disturbed in any manner. Further there
was no material to indicate as to whether the incident alleged in the statement had actually occurred or not, thus, the absence of any material on
record, the order of detention is required to be quashed and set aside.
(V) The detaining authority has considered the extraneous reasons in the detention order.
(VI) The statements of the witnesses recorded by the police are false, concocted and stereo type statements, which can never be a basis to arrive at
a conclusion that, the detenue is a dangerous person.
(VII) The detenue has been falsely involved in the case mentioned in the grounds of detention and there is no material to indicate that, the alleged
activities created strong fear in public, prejudicial to the maintenance of the public order and the society as a whole is ever disturbed;
On the other hand, Mr. Soaham Joshi, learned AGP has supported the impugned order of detention passed by respondent no.2 and submitted that
during the lockdown period, in this outbreak of pandemic Covid 19, the detenue and other persons had intentionally breached the Notification and were
roaming throughout the territory of his village along with his associates and while restrained by the police authority, except the detenue, other persons
ran away from the place and he obstructed the public servants while discharging their public duty and knowingly disobeyed the Notification and
directions given by the concerned and tried to cause serious injury by wooden lobe. Therefore, the offence registered against the detenue having been
rightly considered by the authority as a dangerous person and has considered the statements of the witnesses and after considering sufficient material
by the authority, the impugned order having been passed, which deserves to be upheld by this Court.
Learned AGP further contended that there is one offence registered against the detenue and he has been arrested in connection with the same.
The detenue is strong person and has indulged into anti-social activities, which are prejudicial to the maintenance of public order. In view of this, there
is sufficient material to arrive to the satisfaction that the detenue is a dangerous person and is involved into anti- social activities, which are prejudicial
to the maintenance of public order. He also contended that the order of detention is passed based on material subjective satisfaction and therefore, he
prays this Court to dismiss this petition.
Having heard learned counsel for the parties and having gone through the material on record, the only question arises for consideration in this
petition is, whether the order of detention deserves to be quashed ?
It is not in dispute that, the FIR was lodged against the detenue with Kavi Police Station, for the alleged commission of offences punishable under
Sections 332, 186, 188 of the IPC, Section 3 of Epidemic Decease Act and under Section 135 of the Gujarat Police Act, which is recorded as FIR
being C.R.No.A-11199034200046 of 2020, as a result, detenue was produced before the competent authority and was released on bail.
On the basis of reported incident as above, the detenue was preventively detained by the authority upon this subjective satisfaction to the effect
that, the detenue is a dangerous person and his activities is likely to affect the public peace and health.
After scrutiny of the record and materials supplied to the detenue, it appears that, the police personnel were on patrolling and after seeing the police
personnel, the persons who were gathered at the place of offence, ran away from there. However, the detenue did not run away and made arguments
with the police personnel with respect to their duty and thereby, tried to voluntarily causing hurt by wooden lobe. The contents of the FIR indicate that,
the village persons were gathered and doing social chats despite the Notification under the Epidemic Disease Act, 1897. Therefore, the incident is
happened in a spur of moment without any premeditation. The material further shows that, there is no any positive evidence to infer that, the activities
of the detenue would fall under the definition of dangerous person as defined under Section 2(1) of the PASA Act. No any past antecedent been
found by the authority to show that, the detenue is a habitual offender. Therefore, the subjective satisfaction arrived at by the detaining authority on
the basis of solitary offence reported against the detenue is without application of mind and having been arrived at on the basis of extraneous
consideration as the detenue has indirectly made obstruction in the official duty of the police authority. The offence reported against the detenue is
individual incident relating to law and order, which has nothing to do with the disturbance of public order. The alleged incident reported would not
directly or indirectly had caused or likely to cause harm, danger, or feeling of insecurity among the general public or disturb the public peace and order.
In view of the above, the activities as reported against the the detenue branding him as a dangerous person could not sustain in the eyes of law.
It is apt to refer to the case of Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner, reported in 1995 (3) SCC 23,7 wherein the Apex
Court observed thus:
With a view to deal with the aforementioned submissions advanced by the learned counsel for the petitioner and to examine the legality/validity of
the impugned order of detention it would be appropriate to look into the relevant provisions of the Act in question under which the detention order has
been passed. It may be pointed out that the Act provides for preventive detention of bootleggers, dangerous persons, drug offenders, immoral traffic
offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order. In the present
case having regard to the grounds of detection the detaining authority on being satisfied that the detenu - petitioner was a 'dangerous person' within the
meaning of clause (C) of Section 2 of the Act and passed the order of detention. Section 2(C) of the Act reads as under:
Dangerous person"" means a person, and either by himself or as a member or leader of a gang habitually commits or attempts to commit or abetes the
commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under
Chapter V of the Arms Act, 1959"".
Here it would also be appropriate to reproduce the relevant part of Section 3 of the Act as under:-
3(l)-The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the
maintenance of public order, it is neces-sary so to do, make an order directing that such person be detained."", (2) If having regard to the
circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police,
the State Govern-ment is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of
Police, may also, if satisfied as provided in sub-section (1) exercise the powers conferred by the said sub-section"".
(3)..............
(4) 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
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,
Explanation. - For the purpose of this sub-section, 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 life, property or
public health.
A reading of the preamble of the Act will make it clear that the object of provisions contained in the Act including those reproduced above is to
prevent the crime and to protect the society from anti- social elements and dangerous characters against perpetration of crime by placing them under
detention for such a duration as would disable them from resorting to undesirable criminal activities The 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 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, But this power under the Act to detain a person should be exercised with restraint and great
caution. In order to pass an order of detention under the Act against any person the detaining authority must be satisfied that he is a 'dangerous
person' within the meaning of Section 2(C) of the Act who habitually commits, or attempts to commit or abetes the commis-sion of any of the
offences punishable under Chapter XVI or XVII of the Penal Code or any of the offences punishable under Chapter V of the Arms Act as according
to sub-section (4) of Section 3 of the Act it is such 'dangerous person' who for the purpose of Section 3 shall be deemed to be a person 'acting in any
manner prejudicial to the maintenance of public order' against whom an order of detention may lawfully be made.
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 abetes the commis-sion 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 Iyyar, Reprint Edition 1987 page 499 'habitually' means constant, cus-tomary & 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 Edition 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 Gopalan Chari v. State of Kerala, AIR (1981) SC 674 this Court had an occasion to deal with
expressions like 'bad habit', '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 abeting the commission of offences which are punishable under Chapter XVI or XVII of the I.P.C.
or under Chapter V of the Arms Act and that a single or isolated act falling under Chapters XVI or XVII of I.P.C, or Chapter V of Arms Act cannot
be characterised as a habitual act referred to in Section 2(C) of the Act.
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 expres-sion '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 main-tenance 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.' It the activity
falls within the category of disturbance of 'public order' then it becomes essen-tial 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. 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 transquillity. It is the degree of disturbance and its affect 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] Supple. 1SCC322, this Court took the view that b 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 com-mission 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.
10, Now reverting to the grounds of detention and the summary of incidents alleged against the petitioner as mentioned in the beginning of this
judgment, it may be stated that the first incident is said to have taken place on 24.4.1993 at about 6.45 PM in which the detenu - petitioner alongwith
some of his associates is alleged to have dragged out the complainant, one Mohd. Hussain from inside the Hair Cutting Saloon of Shahpur and
associates of the petitioner fired four rounds from the revolver injuring the complainant and one another customer. The report lodged by the
complainant Mohd. Hussain himself on 24.4.1993, a copy of which has been placed on record, goes to show that a day earlier, that is on 23.4.1993 at
about 9.30 PM there was a quarrel between Amjad Khan, the younger brother of the complainant Mohd. Hussain and the petitioner upon sounding the
scooter horn in the gali of the house of the petitioner and it was in that connection that next day i.e. on 24.4.1993 the alleged incident of assault by the
petitioner and his associates to the complainant Mohd. Hussain took place. From the narration of facts in the said complaint it is abundantly clear that
the criminal activity was directed against an individual and from the nature of the incident it is difficult to assume that it gave rise to public order
disturbing the tranquillity of the locality. At the most it was a criminal act directed only against an individual which has nothing to do with the question
of public order It appears that it was on account of the earlier day incident that the petitioner made a plan alongwith his associates to teach a lesson to
the complainant by assaulting him when he was seen in the Hair Cutting Saloon on 24.4.1993, This apart the incident had occurred on 24,4.1993 while
the detention order was passed on 19.8.1994 after the lapse of more than 16 months. This long lapse of time between the alleged prejudicial activity
and the detention order loses its significance because the said prejudicial conduct was not approximate in point of time and had no rational connection
with the conclusion that the detention was necessary for maintenance of public order. Such a stale incident can not be construed as justifiable ground
for passing an order of detention. The second incident dated 11.4.1994 was that the detenu - petitioner was harbouring offender which is an offence
under Sections 212/214 of the I.P.C, An offence under Section 212/214 of the I.P.C. cannot be made a basis for passing an order of detention against
the petitioner as the said offence does not fall either under Chapters XVI or XVII of the I.P.C. In order to bring a person within the definition of
Section 2(C) of the Act it is essential to show that such person either by himself 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 of the Indian Penal Code or any of the offences
punishable under Chapter V of the Arms Act. But as pointed out earlier the offence registered against petitioner under F.I.R. of C.R.No. 7/94 of
DCB dated 11,4. 1994 is one under Sections 212/214 of the I.P.C. which falls under Chapter XI of the I.P.C. and not under any of the chapters XVI
or XVII which is the requirement of Section 2(C) of the Act. This incident, therefore, can not be made a basis for satisfaction of the detaining
authority that petitioner is a habitual offender, so as to sustain the order of detention.
This brings us to criminal activities of the detenu - petitioner which are said to have taken place on 10.8.1994 at 4.00 PM and on 12.8.1994 at 7.00
PM. I the incident dated 10.8.1994 the petitioner is alleged to have purchased goods worth Rs. 5(K) from a businessman and on the demand of the
price of the goods, the petitioner is alleged to have dragged him out on the public road and not only gave a beating to him but also aimed his revolver
towards the people gathered over there. Similarly it is alleged that on 12.8.1994 at about 7.00 PM the detenu - petitioner stopped the witness on the
road near eastern side of Sardar Garden and beat him as the petitioner doubted that he was informing the police about the anti-social activities of the
petitioner and his associates. The petitioner is also alleged to have rushed towards the people gathered there with the revolver. Taking the aforesaid
two incidents and the allegations on their face value as they are, it is difficult to comprehend that they were the incidents involving public order. They
were incidents directed against single individuals having no adverse affect prejudicial to the maintenance of public order disturbing the even tempo of
life or the peace and tran- quillity of the locality. Such casual and isolated incidents can hardly have any implications which may affect the even tempo
of life or jeopardize the public order an incite people to make further breaches of the law and order which may result in subversion of the public order.
As said earlier the Act by itself is not determinant of its own gravity but it is the potentiality of the act which matters.
The alleged incident dated 12.8.1994 relating to the beating of some person on suspicion that he was informing the police about criminal activities
of the petitioner, the allegation is sweeping without any material to support it. Neither any timely report appears to have been made about it to the
police nor any offence appears to have been registered against the detenu - petitioner concerning the said incident. There remains the solitary incident
dated 10.8.1994 pertaining to the alleged beating of a businessman which as said earlier directed was against an individual having no adverse impact
on public at large. Besides, the solitary incident dated 10.8.1994 alone would not provide a justification to hold that the petitioner was habitually
committing or attempting to commit or abetting the commission of offences as contemplated in Section 2(C) of the Act because the expression
'habitually' postulates a thread of continuity in the commission of offence repeatedly and persistently. However, in our considered opinion hone of the
aforementioned two incidents can be said to be incidents affecting public order nor from these stray and casual acts the petitioner can be branded as a
dangerous person within the meaning of Section 2(C) of the Act, who was habitually engaged in activities adversely affecting or likely to affect
adversely the maintenance of public order. Similar is the position with regard to the recovery of .32 bore country made revolver from the possession of
the petitioner without any permit or licence which is an offence under Section 25 of the Arms Act. The said revolver was found to be rusty and had a
broken barrel. Mere possession of a firearm without anything more cannot bring a case within the ambit of an act affecting public order as
contemplated in Section 3 of the Act unless ingredients of Section 2(C) of the Act are also made out. From the facts discussed above it turns out that
there was no material which may lead to a reasonable and definite conclusion that the detenu - petitioner was habitually engaged in criminal activities
and, therefore, a dangerous person. The detaining authority thus passed the impugned order of detention against the petitioner without application of
mind on the aforesaid aspects of the case and, therefore, the detention order could not be sustained.â€
In light of the aforesaid principles as propounded by the Supreme Court in the above cited judgment and considering the facts of the present case,
the detaining authority has failed to substantiate that the alleged anti-social activities of the detenue affect adversely or are likely to affect adversely to
the maintenance of public order. The alleged activities of the detenue were not of dangerous to the public at large. As a result, the grounds for passing
such detention order cannot be sustained and therefore, it deserves to be quashed and set aside.
In the result, present petition is allowed. The impugned order of detention dated 24.04.2020 passed by respondent no.2 â€" District Magistrate,
Bharuch, is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in connection with any other case. Rule
is made absolute.
Registry is directed to communicate this order to the concerned jail authority by fax/e-mail forthwith.