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PETITIONER: AYUB @ PAPPU KHAN NAWAB KHAN PATHAN

       Vs.

RESPONDENT: S.N. SINHA AND ANR.

DATE OF JUDGMENT21/08/1990

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) AHMADI, A.M. (J) PUNCHHI, M.M.

CITATION:  1990 AIR 2069            1990 SCR  (3) 927  1990 SCC  (4) 552        JT 1990 (3)    50  1990 SCALE  (2)273

ACT:     Gujarat Prevention of Anti-Social Activities Act,  1985: Sections   2(c)  and  3(1)--"Dangerous   person"--Habitually committing     offences     --What    is--Not     such     a person--Detained--Detention order--Validity of. Words and Phrases: ’Habitually’--Meaning of.

HEADNOTE:     The  Petitioner was detained under section 3(1)  of  the Gujarat Prevention of Anti-Social Activities Act, 1985.  The grounds  were  served within time and referred to  3  crimes registered  in  various police stations, on  the  allegation that  the  petitioner and his associates armed  with  deadly weapons   committed  offences  punishable   under   sections 307,451,143, 147 and 148 IPC, and section 25(1) of the  Arms Act. The grounds also referred to 8 crimes under the  provi- sions  of  the Prohibition Act where he was described  as  a bootlegger.  Earlier detention under the Act and release  by the  High  Court were also mentioned.  It  was  specifically mentioned that in one of the three cases, the petitioner was remanded to judicial custody and since there were chances of his being released, the detention was ordered to prevent him from  acting  prejudicially to the  maintainance  of  public order.     In this Writ Petition, the Petitioner has challenged the validity  of the detention order passed by the  Commissioner of Police.     It  was contended on behalf of the petitioner  that  the detaining  authority  has not applied his mind  inasmuch  as relevant material has not been taken into account and  there were absolutely no grounds warranting detention.     This Court allowed the Petition on. 7.8.1990 for reasons to be given later. Giving reasons for allowing the Writ Petition, HELD:  1. A person is said to be a habitual criminal who  by force 928 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 a continuity in

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the commission of those offences. [931C-D]     Vijay Narain Singh v. State of Bihar and Ors., [1984]  3 SCC  14  and Rashidmiya @ Chhava Ahmedmiya Shaik  v.  Police Commissioner, Ahmedabad and Anr., [1989] 3 SCC 32 1,  relied on.     2.  Unless  there is material to show  that  the  detenu committed  any one of the acts mentioned in the  definition, he  can not come within the meaning of ’Bootlegger’.  Though in  the grounds there is a reference to 8 crimes  under  the provisions  of  the Prohibition Act, the  detenu,  does  not figure  in  any  one of these cases. There  is  no  material whatsoever of his involvement in any manner in any of  these prohibition  cases.  Therefore, he can not be said to  be  a bootlegger. [930F-G]     3.  Admittedly, the detenu was acquitted in two  of  the three  criminal  cases against him. The  third  case,  viz., Crime No. 96/90 was pending investigation and the detenu was granted  bail. Thus. this is the only case  pending  against him,  and  the main allegation was that he,  out  of  sudden excitement, fired the revolver and as a result of which  one Mehbub Khan received injury on his leg and again he fired  a shot into the air and that he and his associates were moving around in a jeep threatening the people in the area. But  in the  order passed by the learned Sessions Judge  on  13.3.90 while releasing the petitioner on bail, it is noted that the said  Mehbub  Khan had no fire-arm injury at all  and  as  a matter of fact, the public prosecutor conceded the same. The learned  Sessions Judge has also noted that no medical  evi- dence  is produced to prove that any one was injured  during the alleged occurrence. If such is the only crime pending in which the detenu is alleged to have participated in, it  can by  no stretch of imagination be said that he  comes  within the meaning of ’dangerous person’ and the conclusions  drawn by the detaining authority are bereft of sufficient material as  required  under Section 2(c) of the  Act.  This  betrays non-application  of mind by the detaining authority.  Conse- quently, the grounds on which the detention order is passed. are irrelevant and non-existing. [932B-E]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Criminal) No.  687 of 1990. (Under Article 32 of the Constitution of India). B .K. Mehta, Ms. Shalini Soni and P.H. Parekh for the  Peti- tioner. 929     D.A.  Dave,  A. Sachthey, C.B. Nath,  B.K.  Jad,  Ashish Verma and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by     K.  JAYACHANDRA REDDY, J. We allowed the  Writ  Petition vide our Order dated 7.8.90 and released the detenu for  the reasons  to be given later. We accordingly proceed  to  give the reasons.     The  petitioner was detained under Section 3(1)  of  the Gujarat  Prevention  of  Anti Social  Activities  Act,  1985 (’Act’  for short) by an Order dated 13.3.90 passed  by  the Commissioner  of  Police, Ahmedabad City. The  grounds  were served  within  time. The said order is challenged  in  this Writ  Petition.  It is mainly contended that  the  detaining authority has not applied his mind in passing the  detention order  inasmuch as the relevant material has not been  taken into  account at the time of passing the order. Even  other- wise, according to the learned counsel, there are absolutely

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no  grounds  which  warrant detention. It  is  also  further submitted  that the provisions of the Act are not  attracted even  if all the averments in the grounds are  accepted.  To appreciate this contention it becomes necessary to refer  to the contents of the grounds in brief.     The  detenu is a resident of Ahmedabad City. There is  a reference in the grounds to about three crimes registered in various  police  stations and they are  Crime  Nos.  122/86, 70/88  and 96/90. In all these cases it is alleged that  the detenu  and  his associates armed with deadly  weapons  like Swords, Dhariya and fire-arms committed offences  punishable under  Sections 307, 45 1, 143, 147, 148 I.P.C. and  Section 25(1)  of the Arms Act. So far as the first two  crimes  are concerned admittedly the detenu was acquitted. In Crime  No. 96/90, in which investigation is pending, bail was  granted. Then  there is a reference to 8 crimes under the  provisions of  the Prohibition Act registered in Kagdapith Police  Sta- tion on the basis whereof he is described as a  ’bootlegger’ within the meaning of Section 2(b) of the Act. Some ended in conviction and some are pending in trial but admittedly  the detenu does not figure in any one of these cases. Thereafter it  is stated in the grounds in general that the detenu  was having dangerous weapons and with the aid of his associates, has  been subjecting innocent citizens to  physical  beating causing  physical  injuries and that he and  his  associates have been threatening and beating the peace loving  citizens and  people  residing and doing their business in  the  said area are afraid and an atmosphere of fear, danger and terror prevails and 930 that  the  detenu  comes within the  meaning  of  ’dangerous person’ as defined under Section 2(c) of the Act The detain- ing  authority  has also referred to  an  earlier  detention order dated 20.8.85 passed against the detenu and noted that he  was released by the High Court. Then the  detaining  au- thority proceeds to mention that taking action under Section 59(1)  of  the Bombay Police Act, 1951 is not  possible  and also  is  not appropriate under the  circumstances.  In  the concluding  paragraph it is particularly mentioned that  the detenu  was  a strong-headed ’dangerous person’ and  he  was using  the dangerous weapons creating an atmosphere of  ter- ror.  Towards the end it is specifically mentioned  that  in respect  of  Crime No. 96/90 registered with  the  Sattelite Police  Station. the Chief Judicial Magistrate had  remanded him  to  the  judicial custody till 15.3.90  and  there  are chances of his being released, therefore to prevent him from acting prejudicially to the maintenance of public order, the detention was ordered. Section  2(b)  of the Act defines ’bootlegger’  which  reads thus: "bootlegger"  means  a person  who  distills,  manufactures, stores,  transports, imports, exports, sells or  distributes any liquor, intoxicating drug or other intoxicant in contra- vention  of  any provision of the  Bombay  Prohibition  Act, 1949,  (Bom.  XXV  of 1949) and the rules  and  orders  made thereunder, or any other law for the time being in force  or who  knowingly expends or applies any money or supplies  any animal, vehicle, vessel or other conveyance or any  recepta- cle  or  any  other material whatsoever  in  furtherance  or support of the doing of any of the things described above by or  through  any  other person, or who abets  in  any  other manner the doing of any such thing;" Unless  there is material to show that the detenu  committed any one of the acts mentioned in the definition, he can  not come  within  the  meaning of ’bootlegger’.  Though  in  the

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grounds  there is a reference to 8 crimes under  the  provi- sions  of the Prohibition Act, the detenu, as  already  men- tioned, does not figure in any one of these cases. There  is no  material whatsoever of his involvement in any manner  in any  of  these prohibition cases. Therefore, he can  not  be said to be a bootlegger.     Now we shall consider whether he comes within the  mean- ing of ’dangerous person’ as defined in Section 2(c) of  the Act which reads as under: 931 "2(c)  "dangerous-person"  means  a person,  who  either  by himself  or as a member of or leader of a  gang,  habitually commits,  or attempts to commit or abets the  commission  of offences,  punishable under Chapter XVI or Chapter  XVII  or Chapter  XXII of the Indian Penal Code (45 of 1860), or  any of the offences punishable under Chapter V of the Arms  Act, 1959 (54 of 1959)". As  per this definition, a person, who ’habitually’  commits or  attempts to commit or abets the commission  of  offences mentioned  therein  either by himself or as a member  of  or leader  of  a gang is a "dangerous person".  The  expression ’habitually’  is very significant. A person is said to be  a habitual  criminal who by force of habit or inward  disposi- tion  is accustomed to commit crimes. It implies  commission of  such crimes repeatedly or persistently and  prima  facie there  should  be a continuity in the  commission  of  those offences.  In Vijay Narain Singh v. State of Biharand  Ors., [1984]  3 SCC 14 the majority explained the meaning  of  the word ’habitually’ thus: "The expression ’habitually’ means ’repeatedly’ or ’persist- ently’. It implies a thread of continuity stringing together similar  repetitive acts. Repeated, persistent and  similar, but not isolated. individual and dissimilar acts are  neces- sary to justify an inference of habit. It connotes  frequent commission of acts or commissions of the same kind  referred to in each of the said sub-clauses or an aggregate of  simi- lar acts or commissions". Rashidmtva (C) Chhava Ahmedmiya Shaik v. Police  Commission- er,  Ahmedabad and Another, [1989] 3 SCC 321 is yet  another case where the scope of Section 2(c) of the Act came up  for consideration before this Court and it is held that: "Therefore,  this solitary incident would hardly  be  suffi- cient to conclude that the detenu was habitually  committing or  attempting to commit or abetting the commission  of  of- fences." It  is submitted that in the instant case except  Crime  No. 96/90  there  is  no other case pending and  the  other  two crimes which are referred to in the grounds ended in acquit- tal and the definition of ’dangerous person’ in Section 2(c) does not include cases under the Prohibition Act.  Therefore the detenu is not a habitual offender so as to come 932 within the meaning of ’dangerous.person’. We find considera- ble  force  in  this submission. We have  gone  through  the entire  record. The learned counsel appearing for the  State could  not place any material from which it can be  inferred that  the  petitioner was a habitual offender.  No  doubt  a lengthy  counter is filed in which it is repeatedly  averred in  general  that the detenu was  indulging  in  prejudicial activities but as already mentioned, only Crime No. 96/90 is pending  investigation and from this alone we can not  infer that the petitioner is a dangerous person’ within the  mean- ing of Section 2(c) of the Act. To satisfy ourselves we have also  carefully perused the FIR in Crime No. 96/90  and  the complaint  annexed to the same. The main allegation  against

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the detenu was that he, out of sudden excitement, fired  the revolver  and as a result of which one Mehbub Khan  received injury on his leg and again he fired a shot into the air and that  he  and his associates were moving around  in  a  jeep threatening the people in the area. But in the order  passed by the learned Sessions Judge on 13.3.90 while releasing the petitioner  on bail, it is noted that the said  Mehbub  Khan had  no fire-arm injury at all and as a matter of fact,  the public  prosecutor conceded the same. The  learned  Sessions Judge has also noted that no medical evidence is produced to prove  that  any one was injured during the  alleged  occur- rence. If such is the only crime pending in which the detenu is alleged to have participated in, it can by no stretch  of imagination  be  said that he comes within  the  meaning  of ’dangerous person’ and the conclusions drawn by the  detain- ing authority are bereft of sufficient material as  required under Section 2(c) of the Act.  This betrays non-application of  mind  by  the  detaining  authority.  Consequently,  the grounds on which the detention order is passed, are  irrele- vant  and non-existing. These are the reasons which  weighed with us for not upholding the detention. G.N.                                   Petition allowed. 933