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CASE NO.: Appeal (crl.)  133 of 2001

PETITIONER: State of Maharashtra & Ors

RESPONDENT: Mehamud

DATE OF JUDGMENT: 19/06/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Bombay High Court, Nagpur Bench  quashing the order of detention passed by the District  Magistrate, Nagpur Bench.  By the order dated 12th August,  1999 the District Magistrate had directed detention of the  respondent (hereinafter referred to as the ’Detenu’) under  Section 3 of the Maharashtra Prevention of Dangerous  Activities of Slumlords, Bootleggers and Drug Offenders Act ,  1981 (in short the ’Act’).  By the said order the District  Magistrate had ordered that the detenu was to be treated as a  "dangerous person" and therefore there was need to detain  him.  The order of detention was served on the detenu on 14th  August, 1999 and the period of detention was to last for one  year.  The order of detention was challenged before the High  Court primarily on two grounds; firstly there should have been  a contemporaneous or simultaneous service of the grounds on  the detenu as the said grounds alone contained intimation to  him that representation could be made by him to the State  Government; secondly, there was no material to show that  detenu was habitually committing or attempting to commit  crimes mentioned in Chapters XVI and XVII of the Indian  Penal Code, 1860 (in short the ’IPC’).  The High Court did not  find any substance in the first plea but accepted the second  plea on the ground that use of the expression "habitually  commits or attempts to commit" must be established by facts.   According to the High Court, expression "habitually commits"  conveys a situation where a person is conclusively known to  have surely committed the crime for which he was convicted in  the past by a Court of competent jurisdiction and on that  background alone it can be said that he was repeatedly  indulging in such acts.  Mere pendency of cases would not be  sufficient to treat a person as dangerous person.  It was held  that since there was curtailment of liberty, same has to be  based on a foundation of complaint before the Court, a charge  against him, a full-fledged trial and then recording of the  judgment of conviction which alone may enable such person  being described to have committed a crime.  With the aforesaid  observations and conclusions the High Court set aside the  order of detention.

2.      Learned counsel for the appellant submitted that though  the detenue had suffered about 10 months’ of detention before  the High Court’s judgment yet the conclusion of the High

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Court and the views expressed are clearly unsustainable in  law and therefore, the appeal is being pressed.

3.      There is no appearance on behalf of the respondent.  

4.      The crucial question is the true import of the expression  "habitually commits or attempts to commit".  Section 2(b-1)  defines "dangerous person" as follows:   

"Section 2(b-1) "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  or any of the offences punishable under  Chapter V of the Arms Act. 1959."

5.      At the outset it is to be noted that the order is preventive  in nature and character.

6.      This Court had occasion to consider similar questions in  several cases. In Mustakmiya Jabbarmiya Shaikh v. M.M.  Mehta, Commissioner of Police and Ors. [1995 (3) SCC 237] it  was inter alia observed in paras 7 & 8 as follows:

"7.     A reading of the preamble of the Act will  make it clear that the object of provisions  contained in the Act including those  reproduced above is 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. Section  3 of the Act is, therefore, intended to deal with  such criminals who cannot readily be  apprehended to be booked under the ordinary  law and who for special reasons, cannot be  convicted under the penal laws in respect of   the offences alleged to have been perpetrated  by them. But this power under the Act to  detain a person 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 of the 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

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whom an order of detention may lawfully be  made.

8.      The Act has defined "dangerous person"  in clause (c) of Section 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 ’habitual’  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, 10th 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 Gopalanachari v. State of  Kerala [AIR 1981 SC 674] this Court had an  occasion to deal with expressions like "bad  habit", ’habitual’, ’desperate’, ’dangerous"  ’hazardous’. This Court observed that the word  habit implies 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 dissimilar  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  Section the Act, 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 of1 or under Chapter V of the Arms Act  and that a single or isolated act f" under  Chapter XVI or Chapter XVII of IPC or Chapter  V of is cannot be characterised as a habitual  act referred to in Section 2(c) of the Act."

7.      In Dhanji Ram Sharma v. Superintendent of Police [AIR  1966 SC 1766] in the background of the Police Act 1861 it was

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observed as follows:

"6.     Under Section 23 of the Police Act, 1861,  the police is under a duty to prevent  commission of offences and to collect  intelligence affecting the public peace.  For the  efficient discharge of their duties, the police  officers are empowered by the Punjab Police  Rules 1934 to open the history sheets of  suspects and to enter their names in police  register No. 10. These powers must be  exercised with caution and in strict conformity  with the rules.  The condition precedent to the  opening of history sheet under Rules 23.9 (2)  is that the suspect is a person "reasonably  believed to be habitually addicted to crime or  to be an aider or abettor of such person".   Similarly, the condition precedent to the entry  of the names of the suspects in Part II of police  register No. 10 under Rule 23.4 (3)(b) is that  they are "persons who are reasonably believed  to be habitual offenders or receivers of stolen  property whether they have been convicted or  not".  If the action of the police officers is  challenged, they must justify their action and  must show that the condition precedent has  been satisfied."

8.      As the quoted portion goes to show, this Court observed  that reasonable belief of the police officials is sufficient.  

9.      Habitual: The meaning of the words "habit" and  "habitually" as given in the Advanced Law Lexicon (3rd Edn.)  by P. Ramanatha Aiyer is: "Habit \026 settled tendency or  practice, mental constitution.  The word ’habit’ implies a  tendency or capacity resulting from the frequent repetition of  the same acts. The words by ’habit’ and ’habitually’ imply  frequent practice or use. "Habitual \026 Constant; customary;  addicted to a specified habit".  The Court in Vijay Narain Singh  v. State of Bihar (1984 SCC (Crl.) 361), considered the  question of a habitual criminal and in para 31 the expression  "habitually" was explained as follows: "The expression  ’habitually’ means ’repeatedly’ or ’persistently’.  It implies a  thread of continuity stringing together similar repetitive acts -   repeated, persistent and similar, but no isolated, individual  and dissimilar acts are necessary to justify an inference of  habit".  The expression "habitual" would mean repeatedly or  persistently and implies a thread of continuity stringing  together similar repeated acts. An isolated default of rent  would not mean that the tenant was a habitual defaulter.   (See: Vijay Amba Das Diware and Others v. Balkrishna  Waman Dande and another. (2000 (4) SCC 126).

10.     In Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta,  Commissioner of Police (1995 (3) SCC 237), it was held that   the expression "habit" or "habitual" has not been defined  under the Gujarat Prevention of Anti Social Activities Act,  1985. The word ’habitually’ does not refer to the frequency of  the occasions but to the invariability of a 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.

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The word ’habitually’ means ’usually’ and ’generally’. Almost  similar meaning is assigned to the words ’habit’ in Aiyer’s  Judicial Dictionary, 10th Edition, at 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.  

11.     The expression "habitually" is very significant. A person  is said to be a habitual criminal who by force of habit or  inward disposition is accustomed to commit crimes. It implies  commission of such crimes repeatedly or persistently and  prima facie there should be continuity in the commission of  those offences. (See: Ayub alias Pappukhan Nawabkhan  Pathan v. S.N. Sinha (1990 (4) SCC 552).

12.      As the order of detention shows the detenu was involved  in fourteen cases and several cases were pending which  related to offences punishable under Chapter XVI and XVII of  the IPC and Chapter V of the Arms Act, 1959 (in short the  ’Arms Act’).  Considering the nature of the jurisdiction which  the detaining authority exercises, the conclusion of the High  Court that there must be a conviction before it can be said  that the detenu habitually commits offences is clearly  unsustainable.

13.    The appeal is bound to succeed. Since learned counsel  for the State has fairly stated that because of passage of time  there may not be any necessity for sending back detenu for  detention to serve the unexpired period in the present case,  the detenu did not surrender to serve the remaining period of  sentence.

14.     The appeal is allowed to the aforesaid extent.