Court No. - 85
Case :- CRIMINAL MISC. WRIT PETITION No. - 7269 of 2021
Petitioner :- Durga Prasad
Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gautam Counsel for Respondent :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the petitioner, learned A.G.A. for the State and perused the material on record.
This writ petition under Article 226 of the Constitution of India is directed against the order dated 20.05.2021 passed by Commissioner Basti Division, Basti (O.P. No.2) as well as order dated 02.12.2020 passed by District Magistrate, Basti, directing externment of the petitioner for a period of six months under Section 3 of U.P. Control of Goondas' Act, 1970 (hereinafter referred to as 'Act').
Briefly stated the relevant facts giving rise to the present writ petition are that the District Magistrate, Basti on 04.08.2020 issued notice to the petitioner under Section 3 of the Act with the allegation that on the basis of information received by him it appeared that Durga Prasad (Petitioner) s/o Jagram resident of village Kaithinauli, Post Pursiya, Makada, District Basti, commits offence under Chapter XVI, XVII or XXII of I.P.C., his general reputation is that he terrorizes the people and he is dangerous to the community, he operates his activity within the area of District Basti. No person is ready to give evidence against him on account of his arduous activities. He is an accused in Case Crime No. 282 of 2019 under Sections 376 (2) N, 323, 342, 506 I.P.C. and Section 3/4 of POCSO Act, Police Station Walterganj, District Basti. This notice also refers beat report no.16 dated 27.07.2020 received without any detail regarding subject matter of the beat information.
The petitioner by the said notice was called upon to furnish written explanation as to why an externment order be not passed against him under Section 3 (3) of the Act. The petitioner was served with the notice, he appeared before the District Magistrate and submitted his detailed written explanation enclosing certain documents, copy of the said notice is annexed as Annexure no.2 to the affidavit. On the basis of materials available on record, District Magistrate (O.P. No.3) declared him to be 'Goonda' and passed order for his externment for a period of six months by the impugned order dated 02.12.2020. Against the aforesaid order passed by O.P. No.3, petitioner preferred an appeal before Commissioner Bsti Division, Basti (O.P. No.2) under Section 6 of Goondas Act that was dismissed by the impugned order dated 20.05.2021 passed by O.P. No.2.
Being aggrieved by the aforesaid both the impugned orders this writ petition has been moved by the petitioner.
It was submitted by the learned counsel for the petitioner that show cause notice issued against the petitioner suffer from the vice of totally application of mind. It was next submitted that neither the petitioner have criminal antecedents nor he has been involved in any anti social activity, except the solitary case shown in the notice. The show cause notice was issued against the petitioner only on the ground of his involvement in a solitary case. Thus, the petitioner does not come within the meaning of 'Goonda' as defined under Section 2(b) of the Act. The petitioner filed his objection to the show cause notice but the respondent no.3 rejected the same and passed the impugned order. The respondent no.2 has also wrongly affirmed the order passed by the respondent no.3. Learned counsel for the petitioner further submitted that the Division Bench of this Court in the case of Imran @ Abdul Quddus Khan Vs. State of U.P. and other reported in 2000 (suppl.) ACC 171 (HC) has taken the view that for a person to be a 'Goonda' under Sub Section (1) (b) of the Act, it is to be a person who has to his credit repeated/persistent overt acts not isolated and individual act and in view of the above, the impugned orders are liable to be quashed. In support of his submission learned counsel for the petitioner has also placed reliance in Shankar Ji Shukla Vs. Ayukt Allahabad Mandal and others reported in 2005 (52) ACC 633.
Learned A.G.A. submitted that the petitioner failed to make out any case for quashing the orders. It was further submitted that a single act or omission is enough to treat the person concerned as an anti social element. There is no illegality or infirmity in the impugned orders warranting interference by this Court.
I have considered the submissions made by learned counsel for the parties and perused the impugned orders, further materials brought on record and case law cited by learned counsel for the petitioner in support of his submission.
The law of preventive detention is a hard law and, therefore, it should be strictly construed and care should taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of the accused who is involved in a criminal prosecution. It is not intended for purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of order of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal Court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal Court.
A Division Bench of this Court in the case of Imran alias Abdul Quddus Khan (supra) while examining the question whether a person can be labelled as 'Goonda' and notice under Section 3(3) of the U.P. Control of Goondas Act can be clamped upon him only on the basis of a solitary incident has, in paragraph nos. 11, 12, 13 and 14 of its aforesaid judgment, observed as under :-
"11. Ex facie, a person is termed as a 'goonda' if he is a habitual criminal. The provisions of section 2 (b) of the Act are almost akin to the expression 'anti social element' occurring in section 2 (d) of Bihar Prevention of Crimes Act, 1981. In the context of the expression 'anti social element' the connotation 'habitually commits' came to be interpreted by the apex court in the case of Vijay Narain Singh V. State of Bihar and others (1984) 3 SCC-
14. The meaning put to the aforesaid expression by the apex court would squarely apply to the expression used in the Act, in question. The majority view was that the word '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 inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Even the minority view which was taken in Vijay Narain's case (supra) was that the word 'habitually' means 'by force of habit'. It is the force of habit inherent or latent in an individual with a criminal instinct with a criminal disposition of mind, that makes a person accustomed to lead a life of crime posing danger to the society in general. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under the specified chapters of the Code, he should be considered to be an 'anti social element'. There are thus two views with regard to the expression 'habitually' flowing from the decision of Vijay Narain's case (supra). The majority was inclined to give a restricted meaning to the word 'habitually' as denoting 'repetitive' and that on the basis of a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. The minority view is that a person in habitual criminal who by force of habit or inward disposition inherent or latent in him has grown accustomed to lead a life of crime. In simple language, the minority view was expressed that the word 'habitually; means 'by force of habit'. The minority view is based on the meaning given in stroud's Judicial Dictionary, Fourth Ed. Vol. II? 1204-habitually requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day to day. Thus, the word- 'habitual' connotes some degree of frequency and continuity.
12. The word 'habit' has a clear well understood meaning being nearly the same as 'accustomed' and cannot be applied to single act. When we speak of habit of a person, we prefer to his customary conduct to pursue, which he has acquired a tendency from frequent repetitions. In B.N. Singh V. State of U.P.AI.R. 1960-Allahabad ?754 it was observed that it would be incorrect to say that a person has a habit of anything from a single act. In the Law Lexicon ? Encyclopedic Law Dictionary, 1997 Ed. by P. Ramanatha Aiyer, the expression 'habitual' has been defined to mean as constant, customary and addicted to a specified habit; formed or acquired by or resulting from habit; frequent use or custom formed by repeated impressions. The term 'habitual criminal', it is stated may be applied to any one, who has been previously more than twice convicted of crime, sentenced and committed to prison. The word 'habit' means persistence in doing an act, a fact, which is capable of proof by adducing evidence of the commission of a number of similar acts. 'Habitually' must be taken to mean repeatedly or persistently. It does not refer to frequency INDIAN LAW REPORTS 6 ALLAHABAD SERIES [2000 of the occasions but rather to the invariability of the practice.
13. The expression 'habitual criminal' is the same thing as the 'habitual offender' within the meaning of section 110 of the Code of Criminal Procedure, 1973. This preventive Section deals for requiring security for good behavior from 'habitual offenders'. The expression 'habitually' in the aforesaid section has been used in the sense of depravity of character as evidenced by frequent repetition or commission of offence. It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in the past and readiness to commit them again where there is an opportunity.
14. Expressions like 'by habit' 'habitual' 'desperate' 'dangerous' and 'hazardous' cannot be flung in the face of a man with laxity or semantics. The court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigorous inference that by confirmed habit, the petitioner is sure to commit the offence if not externed or say directed to take himself out of the district. It is not a case where the petitioner has ever involved himself in committing the crime or has adopted crime as his profession. There is not even faint or feeble material against the petitioner that he is a person of a criminal propensity. The case of the petitioner does not come in either of the clauses of Section 2 (b) of the Act, which defines the expression 'Goonda'. Therefore, to outright label bona fide student as 'goonda' was not only arbitrary capricious and unjustified but also counter productive. A bona fide student who is pursing his studies in the Post Graduate course and has never seen the world of the criminals is now being forced to enter the arena. The intention of the Act is to afford protection to the public against hardened or habitual criminals or bullies or dangerous or desperate class who menace the security of a person or of property. The order of externment under the Act is required to be passed against persons who cannot readily be brought under the ordinary penal law and who for personal reasons cannot be convicted for the offences said to have been committed by them. The legislation is preventive and not punitive. Its sole purpose is to protect the citizens from the habitual criminals and to secure future good behavior and not to punish the innocent students. The Act is a powerful tool for the control and suppression of the 'Goondas'; it should be used very sparingly in very clear cases of 'public disorder' or for the maintenance of 'public order'. If the provisions of the Act are recklessly used without adopting caution and desecretion, it may easily become an engine of operession. Its provisions are not intended to secure indirectly a conviction in case where a prosecution for a substantial offence is likely to fail. Similarly the Act should not obviously be used against mere innocent people or to march over the opponents who are taking recourse to democratic process to get their certain demands fulfilled or to wreck the private vengeance."
In the case of Shankar Ji Shukla Vs. Ayukt Allahabad Mandal, Allahabad (supra) the word "habitually" came for consideration before this Court. The Court relying on its previous judgement in the case of Imran @ Abdul Quddus Khan Vs. State of U.P. and others reported in 2000 SCC 171 Alld., as well as the case of Vijay Narain Singh Vs. State of Bihar and others 1984 (3) SCC 14 decided by the Hon'ble Apex Court held that a single or two acts of the accused will not be sufficient to hold that he is habitually involved in commission of the offences referred in the Act.
Thus, what follows from the above is that a person can be termed as 'Goonda' and clamped with a show cause notice under Section 3(3) of the Act when there is material indicating that he either by himself or as a member or leader or a gang, habitually commits or attempts to commit, or abet the commission of the offences punishable under Sections 153, 153(b) or Section 294 I.P.C. or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the I.P.C. or has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or under the U.P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959 is generally reputed to be a person who is desperate and dangerous to the community or has been habitually passing indecent remarks or teasing women or girls as tout.
In the present case, the show cause notice was issued by the O.P. No.3 against the petitioner on the basis of his involvement in only one case, namely 282 of 2019 under Sections 376 (2) N, 323, 342, 506 I.P.C. and Section 3/4 of POCSO Act, Police Station Walterganj, District Basti. This notice also refers beat report no.16 dated 27.07.2020 received without any detail regarding subject matter of the beat information.
From the above facts and discussion, it appears that the respondent no.3 without applying his judicial mind and observing the provision of law has issued the show cause notice under the Act in routine, casual and mechanical manner and passed the impugned order dated 25.09.2019. The Appellate authority i.e. Commissioner Basti Division, Basti (O.P. No.2) also did not consider these facts and dismissed the appeals filed by the petitioner affirming the order passed by O.P. No.3.
There is nothing in show cause notice which may indicate that the petitioner fall within the ambit of 'Goonda' as defined under Section 2(b) of the Act. Thus, the impugned orders dated 20.05.2021 and 02.12.2020 passed by the Courts below/Authorities concerned suffer from inherent infirmity and illegality and cannot be sustained.
The writ petition succeeds and is allowed. The impugned orders dated 20.05.2021 and 02.12.2020 are hereby quashed.
No order as to costs.
Order Date :- 25.10.2021 S.Ali