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PETITIONER: AMANULLA KHAN KUDEATALLA KHAN PATHAN

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT:       28/06/1999

BENCH: D.P.Wadwa, G.B.Pattanaik

JUDGMENT:

PATTANAIK,J.

       Leave granted.

     The  detenu,  who has been detained by  the  detaining authority  under  Section 3(2) of the Gujarat Prevention  of Anti-Social  Activities  Act,  1985  (  for  short   PASA) approached  the Gujarat High Court for quashing the order of detention  dated  13.8.98 in Special Civil  Application  No. 6896  of  1998.  The said application was dismissed  by  the High  Court  by its Judgment dated 5.4.99 and the  aforesaid order  has  been assailed in the Special Leave  Petition  in this  court.  The detenu has also filed an independent  writ petition  under Article 32, challenging his detention  under several  grounds.  Both, the Special Leave Petition and  the Writ  Petition having been heard together are being disposed of by this common Judgment.

     The  detaining  authority on being satisfied from  the activities of the detenu that he belongs to a notorious gang and  the  members of the gang hatched conspiracy  to  extort money   from  the  people  who   are  engaged  in   building construction  business  in  the city by putting  the  people under threat of fear of death, was satisfied that the detenu is  a dangerous person within the meaning of Section  2[c] of  the  Act and the activities of the detenu and  his  gang members  were  such that for maintenance of public order  it was necessary to detain the detenu and accordingly the order of  detention  against the detenu was  passed.   Immediately after  the  order  of  detention   was  passed,  the  detenu approached  the  Gujarat High Court as already stated  inter alia  on  the ground that the single activity of the  detenu for which CR No.  36/97 under Sections 120-B, 387 and 506(2) IPC  had been registered is not sufficient to hold him to be a  dangerous person within the meaning of Section 2[c]  of the  Act and as such the order of detention is vitiated.  By the impugned Judgment, the High Court came to the conclusion that  the  satisfaction of the detaining authority  was  not based  solely on the incident culminating in registration of the  criminal  case under Sections 120-B, 387 and 506(2)  of the  Indian Penal Code but also the incidents that  happened on  26.7.98  and 2.8.98 about which the two  witnesses  have stated  before  the detaining authority and  therefore,  the satisfaction  of the detaining authority, holding the detenu to be a dangerous person cannot be said to be vitiated.

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     Mr.  Anil Kumar Nauriya, the learned counsel appearing for  the detenu in this court reiterated the same contention namely that a single incident in which the detenu is alleged to  be  involved  and for which the criminal case  had  been registered will not be sufficient to hold the detenu to be a dangerous person under Section 2[c] of the Act inasmuch as the  expression dangerous person has been defined to be  a person  who either by himself or as a member or leader of  a gang,  during a period of three successive years, habitually commits,  or  attempts to commit or abets the commission  of any  of  the offences punishable under Chapter XVII  of  the Indian  Penal  Code or any of the offences punishable  under Chapter  V of the Arms Act, 1959.  In other words  according to  the learned counsel unless the activities of the  detenu considered  by the detaining authority indicate that he  has either  habitually committed or attempted to commit or  abet the commission of offence, cannot be held to be a dangerous person  under  Section  2[c] of the  Act.   The  expression habitually    would   obviously     mean   repeatedly   or persistently.   It supplies the threat of continuity of  the activities  and, therefore, as urged by the learned  counsel for  the  petitioner  an isolated act would not  justify  an inference of habitually commission of the activity.  In this view  of the matter the question that requires  adjudication is  whether  the satisfaction of the detaining authority  in the  present  case is based upon the isolated  incident  for which  the  criminal  case  was   registered  or  there  are incidents  more  than  one  which indicate  a  repeated  and persistent  activity  of  the  detenu.  If  the  grounds  of detention  is examined from the aforesaid stand point, it is crystal  clear  that apart from the criminal case which  had been  registered against the detenu for having formed a gang and  hatched a conspiracy to extort money from the  innocent citizens by threatening them and keeping them under constant fear  of death, the two witnesses examined by the  detaining authority narrated the incident that happened on 26.7.98 and 2.8.98  in  which the detenu was involved and on  the  first occasion  a  sum  of Rs.  1 lac was demanded  and  when  the person  concerned refused, he was dragged and assaulted  and on  the  second  occasion  a sum of  Rs.   50  thousand  was demanded  and  on refusal, the persons were dragged  on  the road  and  were  beaten on the public road.  It is  not  the grievance of the detenu that the statements of the aforesaid two  witnesses  had  not  been appended to  the  grounds  of detention  or  had  not  been mentioned in  the  grounds  of detention.  In fact the grounds of detention clearly mention the  aforesaid  state  of affairs and there is  no  bar  for taking   these   incidents  into   consideration   for   the satisfaction  of  the detaining authority that  whether  the person  is a dangerous person within the ambit of  Section 2[c]  of  the  Act.  We, therefore, fail to  appreciate  the first  contention  raised  by the learned  counsel  for  the petitioner  that the satisfaction of the detaining authority that  the  detenu is a dangerous person is based upon  the solitary  incidence in respect of which a criminal case  has already  been  registered.   In our considered  opinion  the detaining  authority  has  considered  the  three  different incidents  happened  on  three  different dates  and  not  a solitary incidence and, therefore, the test of repeated-ness or  continuity  of the activity is fully satisfied  and  the satisfaction  of the detaining authority holding the  detenu to  be  a dangerous person is not vitiated in any  manner. The  contention  of the learned counsel for  the  petitioner therefore stands rejected.

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     Mr.   Anil Kumar, the learned counsel then urged  that even if the activities of the detenu were sufficient to hold him to be a dangerous person yet an order of detention can be  passed under the Gujarat Act only with a view to prevent the  detenu  from  acting in any manner prejudicial  to  the maintenance  of  the public order.  By virtue of  provisions contained  in  Sub-section  (4) of Section 3 of  the  Act  a person  shall  be  deemed  to  be  acting  in  any   manner prejudicial  to  the maintenance of public order when  such person  is engaged in or is making preparation for  engaging in  any  activities,  whether as a bootlegger  or  dangerous person  or  drug  offender or immoral  traffic  offender  or property  grabber,  which affect adversely or are likely  to affect  adversely  the  maintenance of public  order.   Thus maintenance  of public order is sine qua non for passing  an order  of detention under Section 3 of the Gujarat Act.  But in the case in hand the alleged activities of the detenu are all  in relation to violation of the normal criminal law and it  has  got  no connection with the maintenance  of  public order  and,  therefore, the order of detention is  vitiated. We  are unable to appreciate this contention of the  learned counsel  for  the  detenu  inasmuch   as  even  an  activity violating an ordinary legal provision may in a given case be a  matter  of  public  order.  It is the  magnitude  of  the activities  and its effect on the even tempo of life of  the society  at  large  or  with  a  section  of  society   that determines  whether  the  activities  can   be  said  to  be prejudicial  to the maintenance of public order or not.   In Mustakmiya  Jabbarmiya Shaikh vs.  M.M.  Mehta,  Commisioner of  Police  and Ors.  1995(3) SCC 237, it has been  held  by this court that in order to bring the activities of a person within  the expression 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 his 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 breach of public order.   Applying  the ratio  of the aforesaid decision to the facts of the present case  we find that the activities of the detenu by trying to extort  money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them  and  torture them on public road undoubtedly  affected the  even  tempo of life of the society and, therefore  such activities  cannot  be said to be a mere disturbance of  law and  order.  In our considered opinion the activities of the detenu  are such that the detaining authority was  satisfied that  such activities amount to disturbance of public  order and  to prevent such disturbance the order of detention  was passed.   We,  therefore, do not find any substance  in  the second  contention  of the learned counsel for  the  detenu. Mr.   Anil  Kumar then urged that the Advisory Board  having not  indicated  that the detenu is to be detained  for  more than   three   months,   has   failed   to   discharge   its constitutional obligation and there has been an infringement of  Article 22(5) of the Constitution and in support of  the same  reliance has been placed on the decision of this court in  A.K.  Gopalan vs.  The State of Madras, 1950 SCR 88  and the  decision of this Court in John Martin vs.  The State of West  Bengal,  1975(3)  SCR 211.  At the outset  it  may  be stated  that  the detenu had not made any such grievance  in

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the  writ  petition that had been filed in the Gujarat  High Court.  That apart, the opinion of the Advisory Board to the State Government, rejecting the representation of the detenu and  expressing its opinion with regard to the existence  of sufficient  cause  for the detention of the detenu is not  a part  of the record and what is pressed into service by  the learned  counsel  in  support of his argument  is  the  mere communication   from  the  Section   Officer  of  the   Home Department dated 27th August, 1998, intimating the factum of the  rejection  of  representation by  the  Advisory  Board. Section  11 of the Act is the procedure for making reference to the Advisory Board and Section 12 provides the duties and obligation  of the Advisory Board on the basis of  materials placed before it.  Under Sub-section (2) of Section 12 it is the requirement of law that the report of the Advisory Board shall  specify in a separate part thereof the opinion of the Advisory  Board  as  to whether or not there  is  sufficient cause  for  the detention of the detenu and this opinion  of the  Advisory Board has been furnished in the present  case. We  really  fail  to understand how a  contention  could  be raised  that the Advisory Board has failed to discharge  its obligation  and  how the court would be entitled to  examine the same without even the copy of the report of the Advisory Board  being  formed  a part of the records of  the  present proceedings.   In view of the counter affidavit filed in the present case that all the provisions have been duly complied with  and  in  the absence of any material  to  support  the arguments  advanced  by the learned counsel, we do not  find any  force in the contention raised alleging any  infraction of  provision  of law in the opinion given by  the  Advisory Board  and the said Board in rejecting the representation of the detenu.  This contention therefore, is devoid of force.

     The  next contention raised by the learned counsel for the  detenu is that even though the representation was  made to  the Advisory Board yet the detaining authority were also duty  bound to consider the same as the detaining  authority also  could  have  revoked the order of detention  and  non- consideration  of  the  representation   by  the   detaining authority  constitute an infraction of Article 22(5) of  the Constitution  and in support of this contention reliance has been  placed on the decision of this Court in 1995(4) SCC 51 Kamleshkumar Ishwardas Patel etc.  etc.  vs.  Union of India &  Ors.   etc.   etc.  This contention to us appears  to  be based  upon  a mis-conception of the relevant provisions  of the  Act.   Admittedly, the representation in  question  was made  to  the  Advisory  Board  and  not  to  the  detaining authority.  If a representation is made by the detenu to the authorised  officer for revoking or modifying the  detention order   then  it  would  be  certainly  his   constitutional obligation  to consider the same and pass appropriate orders thereon  and non-consideration would tantamount to violation of  Constitutional  rights to a detenu under Article  22(5). But if a representation is made to a specified authority and that  specified  authority  in the given case is  the  State Government  and  the Advisory Board considers the  same  and disposes  it  of,  then at that stage the  question  of  the detaining authority considering the said representation even though  not addressed to it does not arise.  If the  Gujarat Prevention  of Anti-Social Activities Act, 1985 is  analysed it  would appear that the legislature has circumscribed  the powers of the detaining authority by providing that an order of  detention would lapse after 12 days from the passing  of the  order  unless the State Government has within the  said period endorsed and ratified the same.  Therefore within the

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aforesaid period of 12 days, the detaining authority has the power  to revocation which he can exercise before the  State Government ratifies the same.  But once the State Government approves  the  order  of detention then on the same  set  of circumstances the detaining authority cannot revoke an order of  detention.   Though if subsequent circumstances  change, the  detaining authority may have the power of revocation in view of the provisions of the General Clauses Act.  But when no  representation is made to the detaining authority  after the  order  of  detention passed by him is approved  by  the State  Government  indicating  new   set  of   circumstances requiring   the   detaining  authority   to   consider   his representation,  and on the other hand the representation is addressed  to  the Advisory Board, we see no requirement  of law  for that representation being also to be disposed of by the  detaining authority and such non-disposal would  amount to violation of the Constitutional right of the detenu under Article  22(5) of the Constitution.  This contention of  the learned counsel for the petitioner is devoid of force.  That apart, the detenu never raised this question before the High Court making any such allegation.  Another ground was raised by  the learned counsel in this court to the effect that the grounds  of detention no doubt indicated that the activities are  such that it cannot be dealt with by Bombay Police  Act but  no  reasons have been given and therefore, it  is  mere ipse  dixit of the detaining authority and on that score the order  of  detention  is vitiated.  We are  also  unable  to accept  this contention.  The satisfaction of the  detaining authority  on consideration of the activities of the  detenu and on forming an opinion that the activities are such which affects  the  maintenance of public order and as such it  is necessary  to  put  the  detenu under  detention  cannot  be interfered with by the court of law on mere assertion of the detenu.   It is not required to be stated in the grounds  of detention  as to why the detaining authority has formed  the opinion that the activities in question cannot be adequately dealt  with  under the provisions of Bombay Police Act.   We see  no  infirmity with the order of detention or  with  the satisfaction   arrived  at  by   the  detaining   authority, requiring  the  detenu to be detained under the Act on  that score.  We, therefore, have no hesitation to reject the said submission  of  the learned counsel for the petitioner.   In the  aforesaid  premises all the contentions  raised  having failed,  the  Criminal  Appeal  by grant  of  Special  leave arising out of the Judgment of Gujarat High Court as well as the   Writ   Petition  filed  under   Article  32   of   the Constitution, fail and are dismissed.