1. Heard learned counsel for the parties.
2. This petition is directed against the order of detention dated 22.05.2012 passed by the authority functioning under respondent No.1, i.e Police Commissioner, the respondent no.2 herein, in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the detenue as a “dangerous person” as defined under Section 2(c) of the Act.
3. Learned counsel for the detenue submits that order of detention impugned in this petition deserves to be quashed and set aside and the ground that registration of five offences by itself cannot bring the case of the detenue within the purview of definition under Section 2(c) of the Act. Further, learned counsel for the detenue submits that illegal activity carried out as alleged cannot have any nexus or bearing with maintenance of public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of public order.
4. Learned counsel for the detenue, placing reliance on the decisions reported in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) v. State of Gujarat reported in 2000(3) GLR 2696;
(ii) Ashokbhai Jivraj @Jivabhai Solanki v. Police Commissioner, Surat reported in 2000(1) GLH 393; and (iii) Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, reported in (1995)3 SCC 237, submitted that the case on hand is squarely covered by the ratio laid down in the aforesaid decisions. Learned counsel for the detenue further submits that it is not possible to hold in the facts of the present case that the activities of the detenue with reference to the criminal case/s had affected even tempo of the society, posing a threat to the very existence of the normal and routine life of the people at large or that on the basis of the criminal case/s, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order.
5. Learned AGP for the respondent-State supported the detention order passed by the authority and submitted that the detenue is a dangerous person and sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue itself indicate that the detenue is in habit of indulging into activities as defined under Section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court.
6. Having heard learned counsel for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue as a dangerous person within the meaning of Section 2(c) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a dangerous person within the meaning of Section 2(c) of the Act. Except general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order.
7. In the judgment reported in case of Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, reported in 1995(3) SCC 237, the Apex Court in para-8 held
as under:
“para-8: 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 abets the commission of any of the offences punishable under Ch.
XVI or Ch. XVII of the Penal Code or any of the offences punishable under Cl.V of the Arms Act. The expression 'habit' or 'habitual' has however, not been defined under the Act. According to The Law Laxicon by P. Ramanatha Aiyar, Reprint Edn. 1987, p.499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to 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 Edn. p.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 Gopalanachari Vs. State of Kerala 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/s. State of Bihar 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 abetting the commission of offences which are punishable under Ch. XVI or Ch. XVII of Indian Penal Code or under Ch. V of the Arms Act and that a single or isolated act falling under Ch.
XVI or Ch. XVII of Indian Penal Code or Ch.
V of Arms Act cannot be characterized as a habitual act referred to in Section 2(c) of the Act.”
The case on hand is on a better footing than the case before the Supreme Court, as so far as in the instant case, out of four FIRs, three cases are registered by same complainant with whom the petitioner is having dispute of personal nature. The incidents in question would not be classified to be any danger or imminent danger to public order situation nor can it be so classified without their being any cogent material on record. In the instant case, there appears to be none. Hence, order appears to be passed without application of mind.
8. There are number of decisions of this Court as well as the Hon'ble Apex Court on this point. In view of the ratio laid down by the Hon'ble Supreme Court in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria)(supra); (ii) Ashokbhai Jivraj @Jivabhai Solanki (supra); and (iii) Mustakmiya Jabbarmiya Shaikh (supra), the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of “law and order”.
9. In view of the above, I am inclined to allow this petition because simplicitor registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority can have recourse under the Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3(2) of the Act.
10. In the result, the petition is allowed. The order of detention dated 22.05.2012 passed by authority functioning under respondent No. 1 i.e Police Commissioner, respondent no.2 herein is 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 accordingly. Direct service permitted.
(S.R.BRAHMBHATT, J.) pallav