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Judgment
K.S. Radhakrishnan, C.J.—This writ of habeas corpus has been preferred by the petitioner a 21 year old youth, through his brother,
challenging the order of detention passed by the District Magistrate, Porbandar, in exercise of powers conferred on him under Sub-section (2) of
Section 3 of the Gujarat Prevention of Anti-social Activities Act, 1985 (for short ''the P.A.S.A. Act'') and also for an order to set him free from
detention.
Learned Single Judge rejected the Special Civil Application after finding no illegality in the order of detention, against which, this appeal has
been preferred.
Bagvadar Police Station on 12-2-2008 received a complaint from one Bhimabha Ranmalbhai Modhwadiya against the detenu, his father and
two others stating that in the evening of 10-2-2008 while a programme of devotional songs/bhajan was going on at Lirbai Mataji Temple at village
Modhwada in commemoration of the death anniversary of the priest of the said temple, Ghogha Maharaj, one Vandha Lila, the father of the detenu
along with three others arrived at that place and tried to disrupt the programme. Vandha Lila, it was alleged was carrying a pistol with him and had
threatened the crowd not to depose against him in a criminal case. Police on getting information arrived at the place, and the programme resumed
uninterruptedly. Nobody at the that time filed any complaint, but due to the inspiration of the police, the complainant, Modhwadiya, filed the
complaint against Vandha Lila, the detenu and others F.I.R. against Vandha Lila, the detenu and others was registered at II-C.R. No. 10 of 2008
at Bagvadar Police Station on 12-2-2008 for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of
the Bombay Police Act and Section 25(1B)(A-B) of the Arms Act. Later, the detenu was arrested on 24-4-2009. Misc. Criminal Application No.
75 of 2009 was preferred for bail before the Principal District & Sessions Judge, Porbandar, and the detenu was discharged on bail vide order
dated 5-5-2009. While the detenu was on bail, he was served with an order of detention u/s 3(1) of the P.A.S.A. Act on 7-5-2009, and he was
detained at the sub-jail, Nadiad, on the same day. Representation submitted by the detenu was also rejected by the Advisory Board on 13-5-
2009. The order of detention refers to the case registered with the Bagvadar Police Station on 12-2-2008 and the statements of three witnesses
recorded on 26-4-2009. Apprehension was also expressed that if the detenu is released from jail he would continue his anti-social activities. The
detenu was described as a ''dangerous person'' behaving like a head-strong person and a goonda, creating an atmosphere of fear among the
people, beating people in public, thereby inculcating fear and insecurity amongst the people at large, and his activities are prejudicial to the pubic
order. Further, it is also stated in the detention order that for prevention of such activities, action can be initiated u/s 110 of the Criminal Procedure
Code, but it cannot be ensured that the detenu may act in good manner, and it is doubtful whether the detenu would be have properly, maintaining
good behaviour. Further, it is also stated that though bail can be revoked u/s 437(5) of the Cr.P.C. so as to prevent the detenu from doing anti-
social activities, there is all likelihood that he will continue dangerous activities during such periods. Detention order also says that since
proceedings u/s 59 of the Bombay Police Act, 1951 consume much more time, and as there is all possibility that the detenu may continue his anti-
social activities as a dangerous person and cause disturbance in maintenance of public order, in exercise of powers u/s 3(2) of the P.A.S.A. Act,
the detenu be detained in public interest.
Mr. B. M. Mangukia, learned Counsel appearing for the detenu, submitted that the order of detention is unjust and illegal. Learned Counsel
submitted that there is no material available with the detaining authority to indicate that the detenu is a dangerous person as defined u/s 2(c) of the
P.A.S.A. Act nor there is any material or antecedents to show that he is a habitual offender and involved in anti-social activities prejudicial to the
maintenance of public order. Learned Counsel submitted that the incidence referred to in the detention order is stated to have occurred on 10-2-
2008. F.I.R. was registered on 12-2-2008, but the detention order was passed after more than one year and two months, and hence, the
detention order is vitiated on the ground of delay. Referring to the statements of the three witnesses referred to in the detention order, learned
Counsel submitted that they are subsequently created so as to get over the inordinate delay. Further, learned Counsel also submitted that the
statements alleged to have been given by the persons are vague and not trustworthy. Further, learned Counsel also stated that the statements do
not speak of the time of the alleged incident at which the incident had taken place. Learned Counsel further submitted that due to the long lapse of
time between the alleged prejudicial activity and the detention order, the 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.
Learned Counsel submitted that such sweeping statements and allegations are not sufficient to characterise the detenu as a ''dangerous person'' or a
habitual offender so as to come within the meaning of Section 2(c) of the P.A.S.A. Act.
Learned Counsel placed reliance on several judgments of the Apex Court as also of this Court in support of his contentions and submitted that
the petitioner cannot be detained under the provisions of the P.A.S.A. Act, since the alleged incident is a solitary incident occurred more than a
year back. Reference was made to the following decisions:
(1) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police and Others,
(2) Hafijuddin Fazluddin Kazi Vs. Commissioner of Police and Another,
(3) Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad and Another,
Learned Counsel submitted that the detention authority as well as the learned Single Judge have completely misunderstood the difference between
the expressions ''public order'' and ''law and order'', and referred to the following decisions of the Apex Court as well as of this Court:
(1) Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad and Another,
(2) Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and Another,
(3) Ayub @ Pappukhan Nawabkhan Pathan Vs. S.N. Sinha and another,
(4) Dr. Ram Manohar Lohia Vs. State of Bihar and Others,
(5) The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia,
(6) Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and Another,
(7) In Re: Sushanta Goswami and Others,
(8) K.K. Saravana Babu Vs. State of Tamil Nadu and Another,
(9) Omprakash Vs. Commissioner of Police and Others,
AND
(1) Shamjibhai Manjibhai Patel Vs. Commissioner of Police and Another,
(2) Noormohmad Ismail Shaikh Vs. Commissioner of Police and Others,
(3) Sindhi Lohana Ravchand Gopaldas v. District Magistrate, Junagadh and Ors. 1989 (2) GLR 1106.
(4) Chandrakant N. Patel Vs. State of Gujarat and Others,
(5) Hafijuddin Fazluddin Kazi Vs. Commissioner of Police and Another,
Learned A.G.P., Ms. Monali Bhatt, on the other hand, contended that there are sufficient grounds to issue the detention order. Learned A.G.P.
submitted that the detention order was issued after careful consideration of the materials available before the detaining authority. Learned A.G.P.
submitted that in a given case, a solitary instance, may be sufficient enough to exercise powers of detention, provided such instance, event or
incident disturbs public order. Learned A.G.P. submitted that over and above the incident occurred on 10-2-2008, three witnesses also stated that
the detenu had indulged in various anti-social activities disturbing public tranquility and public order. Learned A.G.P. submitted that if the F.I.R. is
perused, what is alleged against the petitioner is not only offence u/s 506(2) of the Indian Penal Code, but also u/s 114 of the Indian Penal Code
read with Section 25(1)(B-A) of the Arms Act, and definition of ''dangerous person'' includes offence under Chapter V of the Arms Act, 1959,
and Section 506(2) read with Section 114 of the Indian Penal Code about administering threats to life and to set the witness ablaze will also fall
under Chapter XVI of the Indian Penal Code. Learned A.G.P. submitted that all the three witnesses are reliable and trustworthy, and there are
sufficient material before the detaining authority to issue the detention order. Learned A.G.P. referred to the judgment of the Apex Court in the
case of Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Others, and also a judgment of a Division Bench of this Court in the
case of Firozkhan Huseinmiya Rathod v. Commissioner of Police for the City of Ahmedabad 1999 (2) GLH 819.
We have heard learned Counsel appearing for the detenu and the learned A.G.P. at length.
It is unnecessary to examine in detail about the scope and ambit of various provisions under which the detenu was detained, since the decisions
referred to hereinbefore have elaborately dealt with the meaning and ambit of these provisions, hence requires no further elucidation.
We are in this case concerned only with the question as to whether there are sufficient grounds and materials available to detain the detenu in
prison without trial in exercise of powers conferred u/s 3(2) of the P.A.S.A. Act, describing him as a ''dangerous person'' u/s 2(c) of the Act on the
basis of the incident stated to have occurred on 10-2-2008 and the versions given by the three witnesses. We have to see whether the first incident
narrated in the detention order would be sufficient for the detaining authority to stamp the detenu as a ''dangerous person''. The incident in question
had occurred on 10-2-2008. So far as that incident is concerned, F.I.R. would indicate that he was present at the time of the incident along with
his father and two others. There is nothing to show that the detenu had threatened anybody, but was found standing near a gate and was armed
with a stick and later he left the place on a motor cycle. F.I.R. says that the father of the detenu had a pistol with him and that he had threatened
persons present there and warned that nobody should depose against him in the murder case of Lakhu Duda, or else, they would be done away
with. Further allegation is that Vandha Lila had disrupted the programme, pointed pistol against Harsukh Bapu, but there is nothing to show that
they had beaten anybody or caused any bodily hurt or injured anybody assembled there. Further, it is also stated in the F.I.R. that after the incident
somebody had telephoned the police and the police soon arrived and the programme was resumed as scheduled. Further, F.I.R. states that
nobody had filed a complaint on 10-2-2008, and since the police instilled confidence complaint was filed, which was registered on 12-2-2008
against Vandha Lila, the detenu and two others for offences punishable u/s 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay
Police Act and Section 25(1B)(A-B) of the Arms Act.
The F.I.R., only shows the presence of the detenu at the place of incident with a stick and there is nothing to show that he had beaten anybody
or that he had caused any hurt to any other person or created any terror or disturbing public order. The question is whether possessing a stick by
the detenu at the scene on the date of occurrence of the incident would be sufficient enough to characterise him as a ''dangerous person'' within the
meaning of Section 2(c) of the P.A.S.A. Act. We have also perused the statements of the three witnesses referred to in the detention order, which
were recorded on 26-4-2009, i.e. two days before the order of detention. Details and whereabouts of the three witnesses are not narrated in the
order of detention, understandably. The first witness says that the detenu used to beat people to create an atmosphere of terror. No details of the
persons whom he had beaten has also been furnished. Further, it was stated that the detenu had visited the house of that witness one day along
with his father armed with sticks and threatened him not to cast vote in the ensuing election and threatened that in case he did he would be done
away with. No explanation is forthcoming as to the reason why the detenu was prompted to prevent the witness to go and cast vote in the election.
Nothing is stated in the statement that the detenu and others belong to any political party. The time, date, etc. of the arrival of the detenu and others
to the house of the witness are not narrated in the statement. The statement, in our view, is general, vague and doubtful, and the facts narrated
therein are not sufficient to hold the detenu as a ''dangerous person''. The second witness has stated that the detenu was going on beating people
and to cause terror in the locality, and one day at night the detenu had demanded food from this witness and since denied, the detenu had inflicted
blows on the lower limb of the witness and left the place threatening that he would be set ablaze. There is nothing to show that the detenu is such a
poor person begging for food at night. The statement shows that since food was denied he had inflicted blows on the lower limbs and threatened
him to leave the village. No details of the injury or the treatment undergone by the witness due to the injury was given. Strangely enough, this
witness had not filed any complaint, and now he says he did not do so due to fear. This statement also does not disclose the date and time of the
incident. The third witness also stated that the detenu used to beat people around the village and used to terrify people, and that he had visited the
house of that witness during night on a motor cycle and demanded money for filling petrol in his motorcycle and also demanded food, and when the
witness refused, he was slapped two or three times and the detenu ran away picking up Rs. 500/- from his pocket. He was also threatened that his
house would be set ablaze if he lodges any complaint, and hence, no complaint was lodged. The statements of these witnesses do not inspire
confidence and are not sufficient to stamp the detenu as a ''dangerous person'' so as to detain him in prison without trial. We are led to believe that
those statements were procured few days before the order of detention so as to explain the inordinate delay in issuing the order of detention and to
strengthen it.
P.A.S.A. Act has been enacted with a clear object 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 criminals, dangerous and desperate outlaws, who are so hardened
and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them.
Law is well settled that the power under the Act 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
P.A.S.A. Act, who habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or
Chapter 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 who man order of detention may lawfully be made. Further, Sub-section (1) of Section 3 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 are 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 expression
''public order''. A distinction has to be drawn between law and order and maintenance of public order.
Law on the point, as we have already indicated, has been well settled by the Apex Court and this Court, which we have already referred to in
the earlier part of our judgment, and hence, requires no further reiteration.
In our view, even if what is stated in the F.I.R. or in the statements of three witnesses is true, even then, those facts are not sufficient to
describe the detenu as a ''dangerous person'' so as to invoke the provisions of P.A.S.A. Act, as it appears to us that at best it is a law and order
problem, warranting action for the offences punishable under the ordinary criminal law.
The Apex Court in Dipak Bose alias Naripada Vs. State of West Bengal, explaining the distinction between ''law and order'' and ''public
order'' held as follows:
...Every assault in a public place like a public road and terminating in the death of a victim is likely to cause horror and even panic and terror in
those who are the spectators. But that does not mean that all of such incidents do necessarily cause disturbance or dislocation of the community life
of the localities in which they are committed. There is nothing in the two incidents set out in the grounds in the present case to suggest that either of
them was of that kind and gravity which would jeopardize the maintenance of public order. No doubt bombs were said to have been carried by
those who are alleged to have committed the two acts stated in the grounds. Possibly that was done to terrify the respective victims and prevent
them from offering resistance. But it is not alleged in the grounds that they were exploded to cause terror in the locality so that those living there
would be prevented from following their usual avocations of life. The two incidents alleged against the petitioner, thus, pertained to specific
individuals, and therefore, related to and fell within the area of law and order. In respect of such acts the drastic provisions of the Act are not
contemplated to be resorted to and theary provisions of our penal laws would be sufficient to cope with them.
The above decision was followed by the Apex Court in Kuso Sah Vs. The State of Bihar and Others, and Ashok Kumar Vs. Delhi Administration
and Others, as also in a recent judgment of the Apex Court in K. K. Saravana Babu (supra).
We find that even going by the F.I.R. on the date of incident, it is alleged that the dentenu''s father had a pistol with him. There is nothing to
show that he had fired with the pistol or caused any harm to anybody. Possession of pistol by detenu''s father without license may be an offence so
far as father is concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the
programme continued without any disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R.
it is stated that they had not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have
raised problems of law and order, but we find it impossible to see that they impinged public order. No motive was also attributed against the
detenu for creating such an incident. In order to bring the activities of a person within the expression of acting in any manner prejudicial to the
maintenance of public order to fall out and extend and reach of the alleged activities must be of such a nature the ordinary law cannot deal with it or
prevent the subversive activities affecting the society. In our view, those incidents are not sufficient to take action against the detenu under the
provisions of the P.A.S.A. Act. We are, therefore, unable to agree that the incident in question occurred on 10-2-2008 would be sufficient to
disturb the tempo of life of the community so as to disturb the public tranquility and public order.
The incident referred to in the F.I.R. had occurred on 10-2-2008 and criminal case was registered against the detenu and others and are being
tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section
25(1B)(A-B) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to
detain a person, and to characterise him as a ''dangerous person'' curtailing his life and liberty. There is nothing to show that the detenu is a habitual
offender, apart from the solitary incident occurred on 10-2-2008. May be, a solitary act has the propensity of affecting the tempo of life and public
tranquility, but the incident occurred on 10-2-2008 will not fall under that category. The detaining authority could not point out any other incident in
which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The
solitary incident pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or
normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere
fact that the order narrates the detenu as a ''dangerous person'' without any materials, a conclusion cannot be drawn that the detenu is a
''dangerous person'', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a
habitual offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution.
We are also of the view that the detention order itself is vitiated on the ground of delay. The incident had occurred on 10-2-2008, the F.I.R.
was registered on 12-2-2008, but the detention order was passed only after one year and two months. The delay in issuing the order based on
incident on 10-2-2008 has not been satisfactorily explained by the detaining authority. Unreasonable delay creates a serious doubt regarding the
genuineness of the detaining authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying out
prejudicial activities on the grounds of detention. Barring the three statements of witnesses, on which also no complaints have been filed, there is
nothing to show that from the date of the incident till the date of detention order, the detenu had committed any offence so as to be booked under
the provisions of Section 2(1) of P.A.S.A. Act. We have already indicated that the statements by the three witnesses are sweeping statements and
are very vague and are of general nature, and in our view, they are not sufficient to characterise him as a ''dangerous person'' under the provisions
of Section 2(1) of the P.A.S.A. Act. On the facts discussed above, in our view, there is no material which may lead to a reasonable and definite
conclusion that the detenu is habitually engaged in criminal activities, and therefore, a ''dangerous person''. The detaining authority, in our view, has
passed the impugned order of detention against the detenu without application of mind.
Accordingly, we allow this Letters Patent Appeal. Consequently, the judgment and order of the learned Single Judge as also the detention
order dated 28-4-2009 are quashed and set aside. The detenu be set at liberty forthwith.