ADMIT. Ms. Jirga Jhaveri, learned Assistant Government Pleader waives service of notice of admission on behalf of respondents. Though the appeal is listed for admission, with the consent of the learned counsel for the parties, we have taken up the appeal for final disposal today itself. 2. We have heard Mr. N.D. Nanavaty, learned Senior counsel assisted by Mr. Mitesh R. Amin, learned counsel appearing for the appellant and Ms. Jirga Jhaveri, learned Assistant Government Pleader appearing for the respondents. The learned Assistant Government Pleader has also produced the records.
3. By way of this Intra-Court Letters Patent Appeal, the appellant – Ramzan Hanifbhai Qureshi (Gandhi) - original petitioner No.1 has challenged the judgment and order dated 12.3.2012 passed by the learned Single Judge in Special Civil Application No.14921 of 2011 by which the learned Single Judge has dismissed the writ petition so far as the appellant, the petitioner No.1 in the writ petition is concerned. Hence, this Letters Patent Appeal is confined only to the aforesaid appellant, original petitioner No.1.
4. The brief facts of the case are that an FIR was lodged by one Shri Noorbhai Nathubhai Goghari which was registered as C.R.No.I-97 of 2011 dated 15.7.2011 for the offences punishable under Secs.143, 147, 148, 149, 323 and 326 of IPC and also under Sec.135(1) of Bombay Police Act and Sec.25(1)(b) of Arms Act against the appellant herein and 25 other persons before Karanj Police Station, inter alia, alleging that when he came to attend the court proceedings pending against him and others in the Court of City Sessions Judge, Ahmedabad City, Ahmedabad, on 30.6.2011, he had a quarrel and scuffle in the Court compound with appellant and Yusuf, petitioner No.2 in the writ petition. It is alleged that appellant threatened to kill Noorbhai Nathubhai Goghari. However, nothing happened as the dispute was resolved. It was further alleged that on the next date i.e. on 15.7.2011 when he was returning after attending the Court proceedings along with his brother Abdulbhai Nathubhai Goghari and six other persons, the appellant and Yusuf, petitioner No.2 who were armed with revolver, were advancing towards him. The advocates present there, took Noorbhai Nathubhai Goghari in STD booth. It was alleged that the appellant, who was armed with iron phant, gave blows to his brother on his left eye and other accused persons gave kick and fist blows to the persons present with him. In pursuance of registration of FIR, the appellant along with other accused was arrested. However, he has been granted bail. Thereafter, considering the said offence, the order of preventive detention dated 5.10.2011 under Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as 'PASA') has been passed against the appellant treating him as a 'dangerous person. The appellant before he is detained by the authority filed the writ petition challenging the same on various grounds.
4.1 It is stated that except petitioner Nos.3,10 and 11, other petitioners were enlarged on bail either by the Sessions Court or by this Court. Since the petitioners apprehended that in pursuance of the order of detention, they will be arrested and detained, hence they preferred writ petition being Special Civil Application No.14921 of 2011 before this Court.
5. Learned Senior counsel appearing for the appellant has urged that after the appellant was granted bail, an order of preventive detention had been passed on 5.10.2011 against the appellant under Section 3 of the PASA branding him as 'dangerous person' under Section 2 (c) of the PASA. He urged that there were in all 13 accused, out of which against three accused persons, no detention orders have been passed. So far as 10 remaining accused persons are concerned, detention order with regard to 8 persons have been quashed and set aside at the pre-detention stage by the learned Single Judge. However, in case of the appellant, the writ petition had been rejected.
5.1 Learned Senior counsel appearing for the appellant has challenged the detention order passed under Section 3 of the PASA at pre-execution stage and has urged that the appellant is not a 'dangerous person' as defined under Section 2 (c) of the PASA. He urged that apart from the instant case which has been registered against the appellant being C.R. No.I-97 of 2011, one criminal case was registered against the appellant in the year 2004 for the offences punishable under Section 307 of the Indian Penal Code. Therefore, he urged that this is a fit case for quashing of detention order at pre- detention stage.
5.2. Learned Assistant Government Pleader Ms. Jirga Jhaveri appearing for the respondents, on the other hand, has contended that secret witnesses have given statements against the appellant from which it is prima facie established that the appellant is a dangerous person. She further urged that injury was inflicted by the appellant on the brother of the complainant, namely, Abdul Nathubhai Goghari in the Court compound. Therefore, it amounts to disturbing the public order. In this regard, learned Assistant Government Pleader has placed reliance on the decision of the Apex Court in Additional Secretary to the Government of India v. Alka Subhash Gadia, 1992 Supp. 1 SCC 496 and State of Maharashtra and others v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613.
6. The Apex Court in Additional Secretary to the Government of India v. Alka Subhash Gadia (Supra) has held in paragraph 11 that Article 21 lays down that no person shall be deprived of his life or personal liberty except by procedure established by law. The Court further held that the provisions of Articles 21 and 22 of the Constitution has to be read together which makes it clear that a person can be deprived of his life or personal liberty according to the procedure established by law. The person who is deprived of his life or liberty can challenge his arrest or detention, as the case may be, according to the provisions of law under which he is arrested or detained. This proposition is valid both for punitive and preventive detention. Therefore, the Constitution permits both punitive and preventive detention provided it is according to the procedure prescribed by law. Preventive detention is resorted looking to the needs of the society where the right of others have been infringed or threatened or likely to be infringed or threatened by an individual against the society which amounts to disturbing the maintenance of public order. The preventive detention is resorted by way of precaution to prevent mischief to the community or society. But at the same time, the preventive detention has to pass the test of Article 21 and 22 of the Constitution. The Court has to strike a balance between the liberty of an individual with the allegedly threatened interests of the society and the security of the State. In this decision, the Apex Court looking to the limited scope of judicial review with regard to interference with the preventive detention order at the pre-execution stage, has held that the order of preventive detention could be interfered by the Courts where the Courts are prima facie satisfied that either of the following five grounds exist :-
(i) that the impugned order is not passed under the Act under which it is purported to have been passed,
(ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds or
(v) that the authority which passed it had no authority to do so.
The law laid down in Alka Subhash Gadia's case was followed by the Apex Court in State of Maharashtra and others v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613.
7. The Apex Court in Deepak Bajaj v. State of Maharashtra and another, (2008) 16 SCC 14 has explained the decisions in case of Alka Subhash Gadia and Bhaurao Punjabrao Gawande (supra) and in paragraphs 6, 8 to 12 has held that the five grounds mentioned in Alka Subhash Gadia's case for interfering with the order of preventive detention at the pre-execution stage before the accused has not surrendered or has been arrested is not exhaustive and are only illustrative. The Apex Court in paragraphs 6, 8 to 12 held as under :-
“6. We have carefully perused the above observations in Smt. Alka Subhash Gadia's case (supra) and we are of the opinion that the five grounds mentioned therein on which the Court can set aside the detention order at the pre execution stage are only illustrative not exhaustive.
8. Shri Shekhar Nafade learned senior counsel for the State of Maharashtra submitted that the five conditions mentioned in Smt. Alka Subhash Gadia's case (supra) were exhaustive and not illustrative. We cannot agree. As already stated above, a judgment is not a statute, and hence cannot be construed as such. In Smt. Alka Subhash Gadia's case (supra) this Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre- execution stage should be an exception and not the general rule. We entirely agree with that proposition. However, it would be an altogether different thing to say that the five grounds for entertaining such a petition at a pre execution stage mentioned in Smt. Alka Subhash Gadia's case (supra) are exhaustive. In our opinion they are illustrative and not exhaustive.
9. If a person against whom a prevention detention order has been passed can show to the Court that the said detention order is clearly illegal why should he be compelled to go to jail ? To tell such a person that although such a detention order is illegal he must yet go to jail though he will be released later is a meaningless and futile exercise.
10. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the State, etc. but they are not to be lightly transgressed.
11. In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning observed :
"A man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or prevented except on the surest ground"
The above observation has been quoted with approval by this Court in Govt. of Andhra Pradesh v.
P. Laxmi Devi J.T. 2008 (2) SC 639 (vide para 90).
12. If a person is sent to jail then even if he is subsequently released, his reputation may be irreparably tarnished. As observed by this Court in State of Maharashtra & Ors. v. Public Concern for Governance Trust & Ors. 2007 (3) SCC 587, the reputation of a person is a facet of his right to life under Article 21 of the Constitution (vide paragraphs 39 and 40 of the said decision).”
8. Therefore, from the aforesaid decision of the Apex Court, it is clear that the Court can interfere with an order of preventive detention at the pre-execution stage if the Court is satisfied that the detention order is clearly illegal or the order of preventive detention has been passed which deprives a person of his liberty guaranteed under Article 21 of the Constitution is being transgressed on flimsy grounds or is based on irrelevant grounds.
9. In light of the above mentioned decisions of the Apex Court, now we propose to examine whether in the facts of this case, whether we should interfere with the preventive detention order at the pre-execution stage. The preventive detention order mentions that the appellant is a 'dangerous person'. Dangerous person has been defined under Section 2 (c) of 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);”
10. 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 v. State of Bihar and others, AIR 1984 SC 1334, in paragraph 31 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.”
11. So far as the appellant is concerned, though the instant case which has been registered against the appellant under Secs.143, 147, 148, 149, 323 and 326 of IPC and also under Sec.135(1) of Bombay Police Act and Sec.25(1)(b) of Arms Act. However, the police authority filed the charge- sheet on 2.12.2011 against the accused under Sections 143, 148, 149 and 323 of IPC and under Section 135 (1) of Bombay Police Act and not under Section 326 of IPC. That means it was a case of simple injury. Apart from this case, one criminal case was registered against the appellant in the year 2004 for the offences punishable under Section 307 and 427 of the Indian Penal Code and under Section 25(1) (A) of the Arms Act at Navrangpura Police Station at C.R. No.I-1124 of 2004. From the records produced by learned Assistant Government Pleader, we do not find that after registration of the said case under Section 307 and 427 of IPC, the appellant indulged in any other criminal or unlawful activity nor any FIR or complaint was registered against him nor there is any material on record to show that after 2004, the appellant has indulged in similar activities. Even in the FIR registered as C.R. No.I-79/2011 dated 15.7.2011, it has not been alleged that he has inflicted any injury on Abdulbhai Nathubhai Goghari. Therefore, the appellant cannot be said to be a dangerous person as defined under Section 2 (c) of the PASA nor it can be said that he commits any offence habitually under the provisions of Indian Penal Code or Arms Act.
12. We are of the opinion that it is a sole and stale offence which would not be covered under the definition of 'dangerous person' or being a habitual one. Though the learned Assistant Government Pleader has relied upon the said offence of 2004, there is no mention about the same in the impugned detention order and, therefore also, the subjective satisfaction arrived at by the authority is vitiated.
13. The allegations in the FIR that the appellant was carrying a revolver has been found to be incorrect as no revolver was recovered from the appellant. The other argument of the learned Assistant Government Pleader that secret witnesses have stated that the appellant has extended threats after lodging of the instant FIR and has given fist blows is prima facie not established as no FIR has been lodged with regard to such incident as stated by the secret witnesses. Neither the persons who have suffered fist blows or received threats nor the witnesses have filed any complaint or FIR.
14. We are 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 quarrel and scuffle took place within the Court premises. We are further of the opinion that the instant case would also fall within the fourth ground mentioned in Alka Subhash Gadia case and therefore the order of preventive detention at the pre-execution stage call for interference by this Court. Therefore, the preventive detention order dated 5.10.2011 cannot be maintained and deserves to be set aside.
15. In the result, this Letters Patent Appeal succeeds and is allowed. The judgment and order dated 12.3.2012 passed by the learned Single Judge in Special Civil Application No.14921 of 2011 so far as it dismissed the writ petition of the appellant and the preventive detention order dated 5.10.2011 passed against the appellant at the pre-execution stage is set aside. There shall be no order as to costs.
In view of disposal of Letters Patent Appeal, Civil Application also stands disposed of. Sd/-
[V. M. SAHAI, J.] Sd/-
[A. J. DESAI, J.] Savariya