Sangramsingh @ Takla S/O Rakeshsingh Shikarwar vs State Of Gujarat

A.J.Desai, J

Heard Mr. Samani, learned advocate for the petitioner and Ms. Divyangna Jhala, learned AGP for the respondent - State.

By way of the present petition, the petitioner detenue has prayed to quash and set aside the order of detention dated 6.12.2019 passed by the

concerned authority in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short

’the PASA Act’) by detai ning the detenue as a ’dangerous person ’ as defined under Section 2(c) of the Act.

The detenue came to be detained as dangerous person on his involvement in two offences being C.R.No.I -67 of 201 8 registered with Odhav

Police Station; C.R.N o.I -60 of 2019 registered with Nikol Police Station.

Learned advocate for the petitioner would submit that the allegations made against the detenue are not correct; that the material collected by the

detaining authority and looking to the s tatement recorded by the detaining authority, it cannot be said that the alleged activities of the petitioner would

fall within the purview of dangerous person. In the background of this case, he would further submit that the petitioner is not an habitual offender and

cannot be detained under the provisions of PASA Act. By relying upon the decision in case of Mustakmiya Jabbarmiya Shaikh V. M.M.Mehta,

Commisioner of Police & Ors. reported in 1995(2) G.L.R.1268, he would further submit that there is no quest ion of breach of any public order and,

therefore, the petitioner cannot be treated as ’ dangerous person ’ under the provisions of PASA Act.

On the other hand, learned AGP, by relying upon the judgement and order dated 15.07.2014 passed in Special Civi l Application No. 4002 of 2014

(Coram : Hon’ble Mr. Justice S.G.Shah), would submit that the offences have been registered against the petitioner and the case of the petitioner

is covered by the said decision. Learned APP would further submit that the dete nue had preferred Letters Patent Appeal No. 905 of 2014

challenging the decision of above referred Special Civil Application No. 4002 of 2014, which came to be dismissed by the Division Bench of this Court

(Coram : Hon’ble Mr. Justice V.M.Sahai and Honble Mr.Justice R.P.Dholaria) vide order dated 22.08.2014 passed in Letters Patent Appeal No.

905 of 2014 and, therefore, the present petition be dismissed.

In reply to the argument advanced by learned AGP, learned advocate for the petitioner would submit that the decision of Mustakmiya Jabbarmiya

Shaikh (Supra) was not brought to the notice of the learned Single Judge (Coram : Hon’ble Mr. Justice S.G.Shah) as well as before the Division

Bench (Coram : Hon’ble Mr. Justice V.M.Sahai and Honble Mr. Justice R. P.Dholaria) and, therefore, the order of detention has not been

quashed and set aside. By placing a copy of judgement and order dated 04.08.2014 passed in Special Civil Application No. 4844 of 2014 by the

learned Single Judge (Coram : Hon’ble Mr. Justice S .G.Shah), learned advocate would further submit that the learned Single Judge, by relying

upon different decisions of this mCourt as well as of the Apex Court including decision of Mustakmiya Jabbarmiya Shaikh (Supra) , has held that only

on the ground of lo dging FIR under the provision of the Arms Act, the authority would not entitle to detain the person under the provision of the Arms

Act labelling him as a ’dangerous person’. By relying upon another subsequent decision of the Division Bench of this Court ( Coram :

Hon’ble Mr. Justice V.M.Sahai and Honble Mr. Justice R.P.Dholaria) dated 27.08.2014 passed in Letters Patent Appeal No. 920 of 2014,

learned advocate for the petitioner would further submit that the Division Bench has opined that only registering t he offence under the provision of

Arms Act or under the provisions of Chapter XVI or Chapter XVII of the IPC, no sufficient reason arisen to label the person as dangerous person

and, therefore, the detention order confirmed by the learned Single Judge came to be quashed and set aside.

The Apex Court has in case of Mustakmiya Jabbarmiya Shaikh (Supra) observed as under : -

The Act has defined ""dangerous person"" in clause (c) of Sec. 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 Chapter XVI or Chapter XVII of the Penal

Code or any of the offences punishable under Chapter V of the Arms Act. The expression ’habit’ or ’h abitual’ has, however, not

been defined under the Act. According to The Law Lexicon 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, 10t h 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 Gopalanchari v. State of Kerala,

AIR 1981 SC 674 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. State of Bihar,

1984 (3) SCC 14 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 dissimil ar 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 Sec. 2 of the Ac t, 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 Chapter XVI or Chapter XVII of I.P.C. or under Chapter V of the Arms

Act an d that a single or isolated act falling under Chapter XVI or Chapter XVII of I.P.C. or Chapter V of the Arms Act cannot be characterised as

a habitual act referred to in Sec. 2(c) of the Act.

Further, sub -sec. (1) of Sec. 3 of the Act 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 t o the maintenance of ""public order"". The explanation attached to Sub -sec. (4) of Sec. 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 adverse ly inter alia if any

of the activities of any person referred to in sub -sec. (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 wide spread danger to life, property or public health. Sub -sec. (4) of Sec. 3

also provides that for the purpose of Sec. 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 per son"" 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 because most often the two expressions are confused and detention orders are passed by the authorities concerned in respect of t he activities

of a person which exclusively fall within the domain of law and order and which have nothing to do with the maintenance of public order. In this

connection it may be stated that in order to bring the activities of a person within the expressi on of ""acting in any manner prejudicial to the

maintenance of public order"", the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the

capacity of the ordinary law to deal with him or to prevent hi s subversive activities affecting the community at large or a large section of society. It is

the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the

disturbance caused by such activity amounts only to a breach of ""law and order"" or it amounts to ""public order"". If the activity falls within the category

of disturbance of ""public order"" then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law

as his activities would fall beyond the frontiers of law and order, disturbing the even tempo of life of the community of the specified locality. In the

case of Arun Ghosh v. State of W. B., 1970 (1) SCC 98 this Court had an occasion to deal with the distinction between law and order and public

order. Hidayatullah, C. J. (as he then was), speaking for the Court observed that public order would embrace more of the community than law and

order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.

Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a

general disturbance of public tranquillity. It is the degree of disturbance and its effect upon the life of the community in a locality which determines

whether the disturbance amounts only to a breach of law and order. It has been further observed that the implications of p ublic order are deeper and

it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and

incite them to make further breaches of the law and order and to subvert the publi c order. An act by itself is not determinant of its own gravity. In its

quality it may not differ from another but in its potentiality it may be very different. Again in the case of Piyush Kantilal Mehta v. Commissioner of

Police, 1989 Supp. (1) SCC 322 : [1989(1) GLR 563 (SC), ]this Court took the view that in order that an activity may be said to affect adversely the

maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If any act of a

person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to

have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come within the purview of

public order which can be dealt with under ordinary general law of the land.

I have heard learned advocate for the respective parties. Perused the impugned order of detention. I am of the opinion that learned advocate for the

petitioner has rightly submitted that the decision of Mustakmiya Jabbarmiya Shaikh (Supra) was not brought to the notice of the learned Single judge

as well as before the Division Bench. I have also considered the decisions of [i] Ranubhai Bhikhabhai Bharwad [Vekaria] v. State of Gujarat reported

in 2000[3] GLR 2696, and [ii] Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat reported in 2000[1] GLH 39 3[iii] District Collector,

Ananthapur V/s. V. Laxmanan, reported in (2005) 3 SCC 663 [iv] Amanulla Khan Kudeatalla Khan Pathan V/s. State of Gujarat, reported in AIR

1999 SC 2197. “

Considering the observations made by the Hon’ble Apex Court as well as above facts, no case is made out and the activities of the present

petitioner was not of a dangerous to public at large and I am of the opinion that the grounds for passing the said order, cannot be sustained and,

therefore, it deserves to be quashed and set aside.

In the result, this Special Civil Application is allowed. The impugned order of detention dated 6.12.2019 passed by the respondent authority, is

hereby 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.

Registry is directed to communicate this order to the concerned Authority by fax / email message forthwith.

In view of disposal of main writ petition, the connection civil application does not survive and it is accordingly disposed of.