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PETITIONER: PIYUSH KANTILAL MEHTA

       Vs.

RESPONDENT: COMMISSIONER OF POLICE, AHMEDABAD CITY AND ANOTHER

DATE OF JUDGMENT16/12/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  491            1988 SCR  Supl. (3)1081  1989 SCC  Supl.  (1) 322 JT 1988 (4)   703  1988 SCALE  (2)1583  CITATOR INFO :  APL        1989 SC1703  (20)  F          1990 SC 496  (3 TO 7,10,11)  RF         1992 SC 979  (15,16,21)

ACT:     Gujarat Prevention of Anti-Social Activities Act,  1985- Sections  2  and  3- Detention Order-  Validity  of-  Merely because  a person is a bootlegger he cannot be  preventively detained- Activities should effect adversely maintenance  of public order. %     Constitution  of  India,  1950-  Article  32-  Detention Order-  Assailment  of- Permissible by  writ  petition  even though  representation  of detenu  pending  before  Advisory Board.

HEADNOTE:     The  petitioner  filed a writ petition  challenging  the legality  of  the  order  of his  detention  passed  by  the respondent under sub-section (2) of Section 3 of the Gujarat Prevention  of  Anti-Social Activities, Act,  1985.  In  the grounds of detention, it was alleged that the petitioner was a  prohibition  bootlegger, indulging in use  of  force  and violence,  and  by  illegal sale of  liquor  the  petitioner created an atmosphere of fear and terror by beating innocent citizens,  thus  indulging in anti-social  activities  which were   against  public  order.  The  detention  order   also indicated that he was prosecuted in two criminal cases under the  Excise Act and was acquitted in one case and the  other case was pending.     In  his  writ  petition to  this  Court  the  petitioner contended that the grounds of detention were vague and there was  nothing to show that his activities either affected  or are  likely  to affect adversely the maintenance  of  public order, and that it is not sufficient to allege that he is  a bootlegger to warrant his detention.     The  respondent  challenged the maintainability  of  the writ petition in view of the pendency of the  representation of  the  petitioner  before  the  Advisory  Board  and  also contended that the grounds were not vague being supported by statements of the witnesses.

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   Allowing  the  writ petition and quashing the  order  of detention, and directing the release of the petitioner, this Court.                                                  PG NO 1081                                                  PG NO 1082     HELD: A person may be very fierce by nature, but so long as  the public generally are not affected by his  activities on conduct, the question of maintenance of public order will not  arise. 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. [1089H; 1090A-B]     The  Commission of an offence will not necessarily  come within the purview of ‘public order’. [1090B]     Pushkar  Mukherjee  v. State of West  Bengal,  [1969]  2 S.C.R. 635, relied on.     In the instant case, the detaining authority has  failed to  substantiate that the alleged anti-social activities  of the  petitioner  adversely effect or are  likely  to  affect adversely  the maintenance of public order. It is true  some incidents  of beating by the petitioner had taken place,  as alleged  by the witnesses. But, such incidents do  not  have any  bearing  on the maintenance of  public  order.  [1090H; 1091A]     It may be that the petitioner is a bootlegger within the meaning of section 2(b) of the Act, but merely because he is a  bootlegger he cannot be preventively detained  under  the provisions  of the Act unless, as laid down  in  sub-section (4) of Section 3 of the Act, his activities as a  bootlegger affect adversely the maintenance of public order. [1091B]     Even  though  a  representation is  pending  before  the Advisory  Board, the writ petition under Article 32  of  the Constitution is maintainable before the Court. [1086B]     Prabhu Dayal Deorah v. The District Magistrate,  Kamrup, [1974] 1 S.C.C. 103, relied on.

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Criminal) No.  403 of 1988.     (Under Article 32 of the Constitution of India)     Dr.  Y.S. Chitale, Yatin N. Oza, P.H. Parekh  and  Sunil Dogra for the Petitioner.                                                  PG NO 1083     P.S.  Poti,  Mrs.  H.  Wahi  and  M.N.  Shroff  for  the Respondents.     The Judgment of the Court was delivered by     DUTT,  J.  In  this writ petition,  the  petitioner  has challenged the legality of the order of his detention  dated August  3,  1988  passed  by  the  Commissioner  of  Police, Ahmedabad  City, under sub-section (2) of section 3  of  the Gujarat  Prevention  of Anti-social  Activities  Act,  1985, hereinafter referred to as ‘the Act’.     The grounds on which the impugned order of detention has been  made  run into seven pages. The relevant  portions  of which are extracted below:     "In pursuance to Section 9(1) of the Gujarat  Prevention of  Anti-social Activities Act, 1985, Shri  Piyush  Kantilal Shah is hereby informed the grounds of detention as under:     You   are  indulging  into  anti-social  activities   by

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hoarding illegal foreign liquor and also selling it  through yourself   and  through  your  servants   near   Navrangpura Municipal Bus-stand and Navrang High School, Ahmedabad  that the  cases  have been registered against  you  under  Bombay Prohibition Act, 1949 and in which you have been arrested.     Sr.  Police Stn.   C.R.   Sections    Qty. seized Result     No.                No.     1.  Navrangpura  62/88  Prohibition   21795   Pending.     2.  Navrangpura   114/88  Act-66(b)   ML Ltr. Pending                               65(a)       foreign investi-                               (e), 81     Liquor. gation                               Proh. Act   139750                               66(b),      Ml. Ltr.                               65(a)(e),   foreign                               116(b) and  liquor.                               98.     Carefully  considering  the  complaint,   identification marks on your face and charge-sheet, it appears that you are a prohibition bootlegger and you are indulging into sale  of foreign liquor in the aforesaid areas and you continue  your anti-social  activities.  In the aforesaid area,  you,  your servants  and  associates  indulge into  use  of  force  and violence  and  also  beat  innocent  citizens  by  which  an atmosphere  of  fear is created and by indulging  into  such                                                  PG NO 1084 activities,  you  are causing hindrance  to  maintenance  of public order.     You also show dangerous weapons to the citizens and also create an atmosphere of fear and you are carrying on illegal liquor  business.  Because of your fear,  citizens  residing nearby  are not in a position to speak anything against  you and also do not file complaint against you. Because of  your activities and your associates, the people of the  aforesaid area  feel  insecurity of their life and  property  and  all these activities are causing hindrance to public order.     To substantiate that you are indulging into anti-social activities and that your activities are against the public order,  certain persons residing in the aforesaid  area  who are peace loving have also given statements and the copy  of the aforesaid statements are given to you.     Taking  into  consideration  all that  has  been  stated aforesaid,  I  am fully satisfied that you  are  prohibition bootlegger and by indulging into use of force and  violence, you continue to indulge into illegal sale of liquor and  you create an atmosphere of fear and terror by beating  innocent citizens.  That  action  against you has  been  taken  under ordinary law and you have been released on bail. After being released  on  bail, you have continued  your  illegal  anti- social  activities and therefore if once again  actions  are taken   under   ordinary   law  against   you,   there   are possibilities  of  your  being released  on  bail  and  your continuing anti-social activities and since it is  necessary to prevent you immediately for maintenance of public  order, and since there is no other alternative, as a last resort  I order to detain you under the aforesaid Act."     It  appears from the grounds extracted above and  it  is also not disputed that the petitioner has been prosecuted in two  criminal cases. In FIR relating to case No. 62/88,  the offence alleged to have been committed by the petitioner  is that he was caught red-handed possessing English wines  with foreign marks without any legal pass or permission to do  so on April 13, 1988. In the second case being case No. 114/88, the  offence,  as  alleged to have  been  committed  by  the                                                  PG NO 1085 petitioner and as recorded in the FIR, is that he was caught

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while  shifting  296  bottles  of  foreign  liquors  in   an Ambassador  car without any pass, permit or licence.  It  is not  disputed that in one of these two cases the  petitioner has  been  acquitted  and  the other  is  pending,  but  the petitioner has not been convicted by any court.     In  the  grounds of detention, it is  alleged  that  the petitioner   is  a  prohibition  bootlegger,  and  that   by indulging  in use of force and violence and by illegal  sale of liquor, the petitioner creates an atmosphere of fear  and terror by beating innocent citizens. It is also alleged that the  petitioner is indulging in anti-social activities,  and that the activities are against public order.     The statements of five persons, who have been  described as  witnesses  Nos. 1 to 5, have been  recorded  before  the order   of  detention  was  passed.  The  copies  of   their statements  have  been given to the  petitioner,  but  their names  have not been disclosed to the petitioner, and it  is not  disputed before us that in view of section 9(2) of  the Act, the detaining authority is entitled not to disclose the names of the detenu.     At  this stage it may be stated that the  representation of the petitioner is pending before the Advisory Board.  The question  that has been raised on behalf of the  respondents is  whether  in view of the pendency of  the  representation before the Advisory Board, the writ petition is maintainable under Article 32 of the Constitution. The question need  not detain  us  long, for it has already been  decided  by  this Court  in  Prabhu Dayal Deorah v. The  District  Magistrate, Kamrup,  [1974]  1 SCC 103. In paragraph 16  of  the  Report Mathew, J., speaking for himself and Mukherjee, J., observed inter alia as follows:     "We  think that the fact that the Advisory  Board  would have  to  consider the representations  of  the  petitioners where they have also raised the contention that the  grounds are  vague  would  not in any way prevent  this  Court  from exercising   its  jurisdiction  under  Article  32  of   the Constitution. The detenu has a right under Article 22(5)  of the Constitution to be afforded the earliest opportunity  of making a representation against the order of detention. That constitutional  right includes within its compass the  right to be furnished with adequate particulars of the grounds  of the  detention order. And, if their constitutional right  is violated, they have every right to come to this Court  under                                                  PG NO 1086 Article  32  complaining  that their  detention  is  bad  as violating  their fundamental right. As to what the  Advisory Board  might do in the exercise of its jurisdiction  is  not the concern of this Court."     In  the above observation, this Court  has  specifically laid  down  that  even though a  representation  is  pending before  the Advisory Board, the writ petition under  Article 32 of the Constitution is maintainable before this Court. In the  Circumstances,  we may proceed to dispose of  the  writ petition on merits.     In the detention order, the petitioner has been named as Piyush  Kantilal  Shah. According to the petitioner,  he  is Piyush  Kantilal Mehta and not Piyush Kantilal Shah.  It  is alleged  by the petitioner that the detaining authority  has deliberately  and  mala  fide detained him with  a  view  to saving  one Piyush Kantilal Shah. In order  to  substantiate that  his  name  is not Piyush  Kantilal  Shah,  but  Piyush Kantilal Mehta, the petitioner has filed certain Income  Tax Challans,   returns,  a  driving  licence  and  some   other documents wherein his name appears as Piyush Kantilal Mehta. it  is  submitted  by the petitioner that  as  he  has  been

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deliberately  and wrongly described as Piyush Kantilal  Shah in the order of detention, the same is illegal and should be quashed on this ground alone.     In  his counter-affidavit, the Commissioner  of  Police, Ahmedabad City, who is the detaining authority, has  averred that the petitioner has made false attempts to show that  he is  not Piyush Kantilal Shah, but Piyush Kantilal Mehta.  It is  pointed out that even at the time of the service of  the order  of  detention, the petitioner had himself  signed  as Piyush   Kantilal  Shah  in  the  presence  of  the   Police Inspector, Navrangpura Police Station, Ahmedabad City. It is submitted  that  the petitioner is trying  to  mislead  this Court by making a false attempt of changing his surname.  We do  not  find  any  reason why  we  should  not  accept  the statement  of  the  Commissioner of Police as  made  in  his affidavit. It is not disputed that the petitioner has signed his name as Piyush Kantilal Shah when the order of detention was  served  upon  him.  It  is,  however,  alleged  by  the petitioner  that  he was forced to sign as  Piyush  Kantilal Shah.  It is difficult for us to believe that the  detaining authority  will  force the petitioner to sign  his  name  as Piyush Kantilal Shah, if really his name is Piyush  Kantilal Mehta. It may be that he has another name as Piyush Kantilal Mehta,  but  we are satisfied that the  petitioner  is  also known  as  Piyush Kantilal Shah inasmuch as he  himself  had signed his name as Piyush Kantilal Shah.                                                  PG NO. 1087     In  the grounds of detention, the relevant  portions  of which  have been extracted above, it has been  alleged  that the  petitioner is a prohibition bootlegger and indulged  in the  sale  of  foreign liquor in the area  in  question  and continues his anti-social activities. A bootlegger has  been defined in section 2(b) of the Act as follows:     "2(b).   ‘bootlegger’  means  a  person  who   distills, manufactures, stores, transports, imports, exports, sells or distributes   any   liquor,  intoxicating  drug   or   other intoxicant  in contravention of any provision of the  Bombay Prohibition  Act,  1949  and  the  rules  and  orders   made thereunder, or of 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 receptacle  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."     Now  we may refer to section 3 of the Act providing  for making orders detaining certain persons. Section 3 reads  as follows:     "3.  (1)  The  State Government may  if  satisfied  with respect  to  any person that with a view to  preventing  him from acting in any manner prejudicial to the maintenance  of public  order,  it  is necessary so to  do,  make  an  order directing that such person be detained.     (2) If, having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction  of a District Magistrate or a Commissioner  of Police,  the  State  Government  is  satisfied  that  it  is necessary  so  to do, it may, by order in  writting,  direct that the District Magistrate or the Commissioner of  Police, may  also,  if  satisfied as provided  in  sub-section  (1), exercise the powers conferred by the said sub-section.     (3)  When  any order is made under this  section  by  an authorised officer he shall forthwith report the fact to the State  Government,  together with the grounds on  which  the order  has been made and such other particulars as,  in  his

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opinion,  have  a bearing on the matter, and no  such  order shall  remain in force for more than twelve days  after  the                                                  PG NO 1088 making  thereof,  unless,  in  the  meantime,  it  has  been approved by the State Government.     (4)  For the purpose of this section, 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.     Explanation.-  For  the  purpose  of  this  sub-section, 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 this  sub-section directly or indirectly, is 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."     Under  sub-section  (1)  of  section  3,  an  order   of detention  of  a  person  can  be  passed  with  a  view  to preventing him from acting in any manner prejudicial to  the maintenance  of public order. Sub-section (4) of  section  3 contains  a  deeming  provision. Under  sub-section  (4),  a bootlegger or a dangerous person or a drug offender shall be deemed  to  be  acting  in  a  manner  prejudicial  to   the maintenance  of public order when the activities of  such  a person  affect adversely or are likely to  affect  adversely the  maintenance of public order. In other  words,  although sub-section  (4) contains a deeming provision, such  deeming provision will not be attracted unless the activities of the person  concerned affect adversely or are likely  to  affect adversely the maintenance of public order.     It is urged by Dr. Chitale, learned Counsel appearing on behalf of the petitioner, that the grounds of detention  are vague  and there is nothing to show that the  activities  of the  petitioner  either  affect  or  are  likely  to  affect adversely  the  maintenance  of public  order.  The  learned Counsel  submits  that it is not enough to allege  that  the petitioner  is  a bootlegger, but there must  be  sufficient materials  to  show that the activities  of  the  petitioner affect or are likely to affect adversely the maintenance  of public order.                                                  PG NO 1089     In  the  grounds of detention, two criminal  cases  have been  mentioned. It is not disputed that in one of them  the petitioner  has been acquitted. In the FIR relating to  case No.  62/88, the allegations against the petitioner are  that he  was  caught red-handed with English Wines  with  foreign marks  without any legal pass or permission. In the  FIR  of the other case being Case No. 144/88, the offence alleged to have   been  committed  by  the  petitioner  was  that   the petitioner was caught while travelling in an Ambassador  car with 296 bottles containing foreign liquor without any pass, permit  or licence. These cases have been mentioned  in  the detention  order, presumably with a view  to  substantiating the  allegation that the petitioner is a  bootlegger.  There can be no doubt that the offences that have been alleged  to have been committed by the petitioner have no bearing on the question of maintenance of public order.     It is also alleged in the grounds of detention that  the petitioner,  his servants and associates indulge in the  use

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of  force  and violence and also beat innocent  citizens  by which  an atmosphere of fear is created and by indulging  in such activities, the petitioner is causing hindrance to  the maintenance of public order. It is further alleged that  the petitioner  shows  dangerous  weapons to  the  citizens  and thereby create an atmosphere of fear. These allegations  are very   general  in  character  without  reference   to   any particular   incident  or  incidents  in  support  of   such allegations.   The   detaining  authority  has   sought   to substantiate the said allegations and connect the activities of the petitioner with the question of maintenance of public order  by the statements of five witnesses. Apart from  some minor incidents of beating by the petitioner, the  witnesses have  alleged that the petitioner is high-handed and  fierce by  nature;  his high-handedness and bickering  nature  have caused terror to the public of the area; he is not afraid of the policy; his activities are anti-social; he always  keeps with him a knife and a revolver and he threatens surrounding people.     It is submitted by Dr Chitale that the allegations which have  been  made  by the said  five  witnesses  against  the petitioner  are  also very general in character and  do  not involve  the question of public order. Counsel submits  that there  is a distinction between ‘law and order’ and  ’public order . The allegations made against the petitioner may give rise  to a question of law and order but, surely, they  have nothing  to do with the question of public order.  A  person may  be  very fierce by nature, but so long  as  the  public generally are not affected by his activities or conduct, the question  of maintenance of public order will not arise.  In order  that an activity may be said to affect adversely  the                                                  PG NO 1090 maintenance of public order, there must be materials 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’.     In  this connection, we may refer to a decision of  this Court in Pushkar Mukherjee v. State of West Bengal, [1969] 2 SCR  635 where the distinction between ‘law and  order’  and ‘public  order’  has been clearly laid down.  Ramaswami,  J. speaking for the Court observed as follows:     "Does  the expression ‘public order’ take in every  kind of  infraction of order or only some categories thereof?  It is manifest that every act of assault or injury to  specific persons  does not lead to public disorder. When  two  people quarrel  and fight and assault each other inside a house  or in  a street, it may be said that there is disorder but  not public disorder. Such cases are dealt with under the  powers vested in the executive authorities under the provisions  of ordinary criminal law but the culprits cannot be detained on the  ground  that  they were disturbing  public  order.  The contravention of any law always affects order but before  it can  be  said  to affect public order, it  must  affect  the community or the public at large. In this connection we must draw  a line of demarcation between serious  and  aggravated forms  of  disorder which directly affect the  community  or injure the public interest and the relatively minor breaches of  peace  of a purely local  significance  which  primarily injure  specific individuals and only in a  secondary  sense public interest. A mere disturbance of law and order leading to  disorder is thus not necessarily sufficient  for  action

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under  the Preventive Detention Act but a disturbance  which will affect public order comes within the scope of the Act."     In  the  instant case, the detaining authority,  in  our opinion,  has failed to substantiate that the alleged  anti- social activities of the petitioner adversely affect or  are likely to affect adversely the maintenance of public  order. It  is true some incidents of beating by the petitioner  had taken  place,  as  alleged  by  the  witnesses.  But,   such                                                  PG NO 1091 incidents,  in  our  view, do not have any  bearing  on  the maintenance of public order.     The petitioner may be punished for the alleged  offences committed  by  him but, surely, the  acts  constituting  the offences  cannot be said to have affected the even tempo  of the life of the community. It may be that the petitioner  is a bootlegger within the meaning of section 2(b) of the  Act, but  merely  because  he  is  a  bootlegger  he  cannot   be preventively  detained  under  the  provisions  of  the  Act unless, as laid down in sub-section (4) of section 3 of  the Act, his activities as a bootlegger affect adversely or  are likely  to affect adversely the maintenance of public  order We  have carefully considered the offences  alleged  against the  petitioner  in  the order of  detention  and  also  the allegations made by the witnesses and, in our opinion, these offences  or the allegations cannot be said to have  created any  feeling  of  insecurity or panic or  terror  among  the members of the public of the area in question giving rise to the  question of maintenance of public order. The  order  of detention cannot, therefore, be upheld.     Coming back to the question of vagueness of the grounds, it  is submitted by Mr. Poti, learned Counsel  appearing  on behalf  of the respondents, that the grounds are not  vague, and  that  they  are  supported by  the  statements  of  the witnesses.  In our opinion, the statements of the  witnesses are  themselves vague and general in character.  In  Pushkar Mukherjee’s  case (supra), one of the grounds was "You  have become  a  menace  to  the  society  and  there  have   been disturbances and confusion in the lives of peaceful citizens of  Baraset  and  Khardah  P.S.  areas  under   24-Paraganas District  and the inhabitants thereof are in constant  dread or disturbances of public order". It was held by this  Court that the ground was extremely vague and gave no  particulars to enable the petitioners to make an adequate representation against  the  order  of  detention  and  it  infringed   the Constitutional safeguard provided under Article 22(5) of the Constitution of India. In the instant  case, the grounds  of detention are more or less similar to the grounds in Pushkar Mukherjee’s  case  (supra). The statements of  witnesses  do not, in our opinion, remove the vagueness of the grounds.     Some other grounds have been urged by Dr. Chitale with a view  to  substantiating  the invalidity  of  the  order  of detention.  As  we have found that the  order  of  detention cannot be sustained, as the grounds of detention suffer from vagueness and the allegations against the petitioner are not such  as  to  raise the question of  maintenance  of  public order,  we do not think it necessary to consider  the  other grounds.                                                  PG NO. 1092     For  the reasons aforesaid, we allow the  writ  petition and  quash the impugned order of detention and  direct  that the petitioner be released forthwith. S.K.A.                                     Petition allowed.