JUDGMENT K.K. Misra, J.
1. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioner has sought quashing of the orders dated 15.9.98 and 30.4.98 (Annexure Nos. 7&5 to the writ petition) passed by the Commissioner, Allahabad Division, Allahabad and Additional District Magistrate (Administration), Allahabad. U.P. under Section 3(3) of the U.P. Control of Goondas Act, 1970 (Briefly, the Act).
2. By the impugned order dated 30.4.98 passed by Additional District Magistrate(Administration), Allahabad, respondent No. 2, an order of externment was passed externing the petitioner for a period of six months. Against the order passed by respondent No. 2, the petitioner filed an appeal before the Commissioner, Allahabad Division, Allahabad, respondent No. 1. The respondent No. 1 finding no illegality in the order passed by respondent No. 2 dismissed the appeal filed by the petitioner by his order dated 15.9.78.
3. Heard Sri Daya Shankar Misra, learned counsel for the petitioner and Sri A.N. Misra learned A.G.A. for the respondents.
4. The submissions made by Sri Daya Shankar Mishra is of three fold. The first point raised by Sri Daya Shankar Misra is that the incidents of the years l986&1988 etc. have been taken into account by the respondent No. 1 for passing the impugned order which is bad in law. He argued that according to the police report except the case crime No. 50 of 1996 under Sections 504, 506, 509, 354, 342 IPC, all other cases are of before, the year 1990 and only two cases of the years 1988 and 1990 are under Section 354 IPC. He further argued that there is no proximity and relation between the incidents alleged and the date of order and on the basis of stale cases right from 1970, the authorities have proceeded on the presumption that since the petitioner has committed similar type of acts in the year 1986 and 1988, he comes under the purview of the definition of 'Goonda' as given in Section 2 of the Act. This Court is not prepared to swallow such a large pill. There must be proximity of time between the incidents mentioned in the order and the date of order. Learned counsel for the petitioner relied on the case of Baldeo Singh v. State of U.P. 1978 ACC Vol. 15 page 345 wherein it was held that in matters where a law gives to an authority power to issue orders for the purpose of preventing the commission of offences, the time becomes the essence of the law and the circumstances have to be reviewed on the date of the order. When a preventive law is to be enforced, there must not be such a long gap of time between the complained act and the preventive order so as to break the link between the two. The nexus between the activity and the order must continue. The circumstances may have changed the man may have changed man may have changed his habits; and the need of prevention may have disappeared. It was further observed therein that in the case of a preventive law the relevant date is the date on which the order is passed. If there is a long lapse of time between two prejudicial acts or omission, the person committing the act or omission cannot be termed as habitual offender or Goonda under the Act. The credible chain is snapped if there is too long and unexplained an interval between the offending acts arid the date of order. I find force in the submission of the learned counsel for the petitioner. Habitually means similar and continuous repetition of the prejudicial act or omission. As stated above, except one offence of the year 1996, all the offences which have been made use for passing the impugned order are of the year 1990,88,86. Such a long gap between the two offences does not amount to repetition of offence. I find force in the submission of the learned counsel for the petitioner and the order is bad in law as there was no repetition or continuity of the offences. The stale cases of the year 1990 and before cannot be made basis for passing the impugned order.
5. Second submission made by the learned counsel for the petitioner is that the acts or omissions of the petitioner do not come under the definition of term 'Goonda'. In this regard he relied upon the, Case of Vijay Narain Singh v. State of Bihar and Ors. (1984) 3 SCC 14. In Vijay Narain Singh's case (supra), the order of preventive detention passed under Bihar Control of Crimes Act, 1981 was challenged. Learned counsel for the petitioner mainly relied upon the observations with regard to the term 'Habitually' as given by the Apex Court As for a person coming under the term 'Goonda' the person should habitually commit the offences. It 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. A single act or omission or two acts or omissions after a long gap of period cannot be termed as habitual. If the acts or omissions of the petitioner are not such that they pan be termed as habitual, he will Called a 'Goonda' as given in section of the Act. According to Section 2(b) of the Act:
'Goonda' means a person who-
(i)either by himself or as a member or leader of a gang, habitually Commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or section 153B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code;
(ii) has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or
(iii) has been convicted not less than thrice for an offence punishable 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; or
(iv) is generally reputed to be a person who is desperate and dangerous to the Community; or
(v) has been habitually passing indecent remarks or teasing women or girls; or
(vi) is a tout; or
(vii) is a house grabber.
6. The emphasis is on the word habitual and a single or two acts after a long gap does not amount to the term 'Habitually'. 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 inference of habit. It connotes frequent commission of acts or omissions of the same kind. Because, the idea of 'habit' involves an element of persistence and a tendency to, repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. Learned counsel for the petitioner further; relied on the case of [email protected] Qaddus Khan v. State of U.P. and Ors. 2001(1) JIC 431 (All). In Imran's case (Supra), the Court relied on the judgment of Hon'ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and Ors. (1984) 3 SCC 14 for defining the term 'Goonda'. It was further held in Imran's case (supra) that even the minority view which was taken in Vijay Narain's case (Supra) was that the word 'habitually' means 'by force of habit'. From the facts found above I find that the petitioner is not a habitual offender and he cannot be brought under the term 'Goonda' as defined under the Act.
7. Third submission made by the learned counsel for the petitioner is that although the notice was issued in the year 1996, the impugned order was passed in the year 1998. It shows casual and lethargic approach of the authorities and it shows that there was no necessity to pass the impugned order. The order was passed in a routine way. The notice in the present case has been served upon the petitioner on 13.5.96 and the order has been passed on 30.4.98 after a gap of about two years. There is no explanation by the authority for passing the order after two years of the service of notice on the petitioner. In the circumstances, it appears that there was no necessity to pass the impugned order and the order was passed in a routine and mechanical manner without applying the mind. The impugned order is bad in law on this ground also and cannot be sustained.
8. In the result, the writ petition is allowed and the impugned orders dated 15.9.98 and 30.4.98 (Annexure Nos. 7&5 to the writ petition) passed by the Commissioner, Allahabad Division, Allahabad and Additional District Magistrate (Administration), Allahabad. U.P. under Section 3(3) of the Act are quashed.