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PETITIONER: RASHIDMIYA @ CHHAVA AHMEDMIYA SHAIK

       Vs.

RESPONDENT: POLICE COMMISSIONER, AHMEDABAD & ANR.

DATE OF JUDGMENT05/05/1989

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) RAY, B.C. (J)

CITATION:  1989 AIR 1703            1989 SCR  (3) 182  1989 SCC  (3) 321        JT 1989 (2)   323  1989 SCALE  (1)1592  CITATOR INFO :  RF         1990 SC 496  (10)  F          1990 SC2069  (5)  RF         1992 SC 979  (15,16,21)

ACT:     Gujarat Prevention of Anti-social Activities Act,  1985: Sections, 2(b), 2(c), 3 and 6.     Preventive         detention--Order---Grounds         of detention--Severability             and             validity of--’Bootlegger’--Activities   of--Whether  prejudicial   to maintenance of public order.     ’Dangerous person’--Detenu--Whether should be a habitual offender  under Chapter XVI or XVII or XXII of Indian  Penal Code or under Chapter V of Arms Act.     Words    and    Phrases:    ’Maintenance    of    public order’--’Bootlegger’--’Dangerous person ’--Meaning of.

HEADNOTE:     The  petitioner was detained, under an order  passed  by the  detaining authority under Section 3(1) of  the  Gujarat Prevention of Anti Social Activities Act, 1985, with a  view to  preventing him from acting in any manner prejudicial  to the  maintenance  of public order. The  detaining  authority reached his subjective satisfaction on the grounds (i)  that the detenu was a ’bootlegger’ within the meaning of  Section 2(b)  of  the Act because he was indulging in  criminal  and anti-social  activities  by illegally  storing  and  selling foreign liquor and beer and that four cases were  registered against  him  under the Bombay Prohibition Act,  1949;  (ii) that he was also a ’dangerous person’ within the meaning  of section 2(c) of the Act because he, as a member of a partic- ular gang, was spreading an atmosphere of fear and terror by beating innocent people in the Ahmedabad city thus affecting the  public order adversely and a case was  also  registered against him under Section 120(B), 212 and 307 of the  Indian Penal  Code,  1860 and Section 25 of the  Arms  Act  besides under the provisions of various other Acts.     The  petitioner  filed  a writ petition  in  this  Court challenging  the validity of the detention order  contending that the conclusions drawn by 183

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the detaining authority were not supported by materials. Quashing the detention order and allowing the Writ Petition,     HELD:  1.  To bring a person within  the  definition  of Section  2(c)  of the Act it must be shown that  the  person either  by himself or as a member of or a leader of  a  gang habitually  commits or attempts to commit or abets the  com- mission of offences punishable under Chapter XVI or XVII  or XXII of the Indian Penal Code or any of the offences punish- able under Chapter V of the Arms Act. It must be shown  that he  is  habitually  committing or attempting  to  commit  or abetting  the  commission of  offences  enumerated  therein. [187-H; 188B]     1.1  In  the instant case, the detenu is  said  to  have committed  offences  under Sections 307, 120-B, 212  of  the Indian  Penal  Code and Section 25 of the Arms  Act  besides under  the provisions of various other Acts. Only  one  case registered under the provisions of Section 307 of the Indian Penal  Code and Section 25 of the Arms Act fails within  the said  definition clause. The other two  offences  registered under  Sections 120-B and 212 are not covered under  Section 2(c).  Therefore,  this solitary incident  would  hardly  be sufficient  to conclude that the detenu was habitually  com- mitting  or attempting to commit or abetting the  commission of  offences. The general and vague allegations made in  the grounds of detention that the detenu was taking active  part in  communal riots and entered into conspiracy to spread  an atmosphere of terror being a member of a particular gang  in the absence of any specific instance or registration of  any case thereof, cannot be construed as offences falling  under any of the above three chapters of the Indian Penal Code  or chapter  V of the Arms Act enumerated under Section 2(c)  so as  to  characterise  the detenu as  a  ’dangerous  person’. [188A-E]     2.  A conjoint reading of Section 2(b) and Section  3(4) with the explanation annexed thereto clearly spells out that in order to clamp an order of detention upon a  ’bootlegger’ under Section 3 of the Act, the detaining authority must not only  be satisfied that the person is a ’bootlegger’  within the meaning of section 2(b) but also that the activities  of the  said  bootlegger affect adversely or likely  to  affect adversely the maintenance of public order. [188H, 189A]     2.1  In the instant case, the vague allegations  in  the grounds of detention that the detenu is the main member of a particular gang indulging in bootlegging activities and that he  is taking active part in such dangerous activities,  are not sufficient for holding that his 184 activities  affected  adversely  or were  likely  to  affect adversely the maintenance of public order in compliance with sub-Section  4 of the Section 3 of the Act that the  activi- ties  of  the detenu have caused harm, dangeror alarm  or  a feeling  of insecurity among the general public or any  Sec- tion  thereof  or  a grave or  widespread  danger  to  life, property or public health as per the explanation to  Section 3(4). The offences registered in the.  four cases, under the Bombay  Prohibition  Act,  1949 against the  detenu  on  the ground that he was dealing in liquor have no bearing on  the question  of maintenance of public order in the  absence  of any other material that those activities of the detenu  have adversely affected the maintenance of public order. [189A-D]     Ashok  Kumar v. Delhi Administration, [1982] 2  SCC  403 and  Piyush  Kantilal Mehta v. The Commissioner  of  Police, Ahmedabad  City  and  Anr, Judgments Today,  [1988]  4  703, applied.

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JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Criminal) No.  395 of 1988. (Under Article 32 of the Constitution of India). Miss Kamini Jaiswal and S.C. Patel for the Petitioner. T.U. Mehta and M.N. Shroff for the Respondents. The Judgment of the Court was delivered by     RATNAVEL PANDIAN, J. This writ petition under Article 32 of the Constitution of India is filed by the petitioner (the detenu  herein) canvassing the correctness of the  detention order  dated 30.8.88 made by the detaining authority  namely Commissioner  of Police, Ahmedabad city in exercise  of  the powers conferred on him under sub-Section 1 of Section 3  of the  Gujarat Prevention of Anti-social Activities  Act  1985 (hereinafter referred as the Act) with a view to  preventing the  detenu  from acting in any manner  prejudicial  to  the maintenance  of public order in the area of Ahmedabad  city. In  pursuance of the above order, the detenu is detained  in the Central Jail,’ Sabarmati. The detenu has been  furnished with  the copies of the grounds of detention and  all  other material  documents inclusive of the statements of the  wit- nesses on the basis of which the detaining authority reached his subjective satisfaction for passing this impugned order. The  sum  and  substance of the alleged  activities  of  the detenu 185 mentioned  in grounds of detention are that the  detenu  was indulging in criminal and anti-social activities in the area of Dariyapur Kalupur of Ahmedabad city by illegally  storing and  selling  foreign liquor and beer either  personally  or through his associates and that in this regard the following four  cases  were  registered under the  provisions  of  the Bombay  Prohibition Act of 1949. We reproduce that  relevant portion  giving  the details of the cases as  found  in  the grounds of detention: Sr. No. Police    CR No. Section     Qty           Disposals Station                             Seized 1   Kalupur  130/88 Prov. 66(B)   8 Ltr. beer     Pending                                                in court 2.     Kalupur  152/88 --       500 ML beer    order pending 3.    Kalupur    156/88          268 bottle    Pending in                                foreign and   Court                                122 bottle                                box 4.      Dariyapur 80/88  Prov. 66(B) foreign  order pending                            65(A)81   liquor     From  the above materials, the detaining  authority  has concluded that the detenu was a bootlegger within the  mean- ing of Section 2(b) of the Act.     It  is further stated that the detenu besides  indulging in the activities of bootlegging, he and his companions were creating  terror in that area by beating innocent people  in public  in Ahmedabad city which in turn  affected  adversely the maintenance of public order.     Further it is stated that the detenu and his  associates always  armed with dangerous weapons like bombs,  cartridges etc. were threatening the people in the city of Ahmedabad in respect  of  which a case has been registered which  is  re- produced as set out in the grounds of detention: S. No.  Police Station  CR No. Section           Disposal (1)     Kalupur         2/88  IPC 307, 120(B)    Under                               212, Terrorist    inquiry                               Act, Sec. 3(1)(3)

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186                 Explosive Sec. 4,                 5 Arms Act;                 25(1)(A)(c);                 Bombay Police                 Act 135(1)     In addition to the above it is alleged that the  detenu, being the main member of the gang of Abdul Latif Abdul Wahab Shaikh entered into a conspiracy to spread an atmosphere  of fear and terror among the residents of that area and also  a sense of insecurity among the people.     On  the  above materials, mentioned in  the  grounds  of detention,  the detaining authority has come to the  conclu- sion  that  the detenu is a ’dangerous  person’  within  the meaning of Section 2(c) of the Act.     Thus the detaining authority. has found that the  detenu was  not only a ’bootlegger’ but also a  ’dangerous  person’ within the definitions of Section 2(b) and 2(c) of the  Act. For drawing the above conclusion the detaining authority has also relied upon the statements of the witnesses whose names are not disclosed.     Assailing the legality of the impugned order the learned counsel  appearing  on behalf of the  petitioner  put  forth several contentions one of which being that the  conclusions drawn  by  the  detaining authority that  the  detenu  is  a ’bootlegger’  as well as a ’dangerous person’ are  not  sup- ported by the materials placed before him and that there  is nothing  to  show that the activities of the  detenu  either affected or were likely, to affect adversely the maintenance of public order.     We shall now deal with the above contention in the light of  the  construction of the  expressions  ’bootlegger’  and ’dangerous  person’ read with Section 3(4) of the  Act  with the explanation annexed thereto.     The  expression  "bootlegger"  and  "dangerous   person" occurring  in Section 2(b) and (c) of the Act read  as  fol- lows: "2(b)  "bootlegger"  means a person who  distills,  manufac- tures,  stores, transports, imports, exports, sells or  dis- tributes  any liquor, intoxicating drug or other  intoxicant in contravention 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 187 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  further- ance 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; 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, (XLV of 1860), or any of the offences punishable under Chapter V of the Arms  Act, 1959 (54 of 1959)."     To  bring  the detenu herein within  the  definition  of Section  2(b) of the Act, four cases are made mention of  in the  grounds of detention which we have  already  extracted. All  the  four cases were registered in the year  1988.  The trials  in  respect of two of the four  cases  were  pending before the Court and in respect of the other two, the orders were pending. Notwithstanding the result of those cases  and the  quantity  of liquor seized from the  detenu,  we  shall

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examine the legality of the detention order, in the  ensuing part  of this judgment, even assuming that the detenu  is  a ’bootlegger’ within the ambit of Section 2(b) of the Act.     For  the  conclusions drawn by the  detaining  authority that  the detenu was a ’dangerous person’ as  defined  under Section  2(c) of the Act, the detaining authority has  taken into  consideration  the  registration of a  case  in  crime number 2/88 in Kalupur police station. Added to that, it  is generally stated in the grounds of detention that the detenu and  his  associates were beating the people in  public  and that  the detenu had entered into a conspiracy to spread  an atmosphere of fear and terror in the city of Ahmedabad  city being the main member of the gang of Abdul Latif Abdul Wahab Shaikh.  But  no specific instance is given  either  in  the grounds  of detention order or in any of the  statements  of the witnesses.     To bring a person within the definition of Section  2(c) of  the Act it must be shown that the person either by  him- self  or  as a member of or a leader of  a  gang  habitually commits  or  attempts to commit or abets the  commission  of offences punishable under Chapter XVI or XVII or XXII of the Indian Penal Code or any of the offences punishable under 188 Chapter  V of the Arms Act. In the case registered in  crime No.  2/88 in Kalupur police station, the detenu is  said  to have  committed offences under Sections 307, 120-B,  212  of the Indian Penal Code and Section 25 of the Arms Act besides under  the provisions of various other Acts. Though  Section 307  falls  under Chapter XVI, the offences  under  Sections 120-B  and 212 fall under Chapters VI and XI of  the  Indian Penal  Code respectively. Therefore, these two offences  are not covered under Section 2(c). The offence registered under Section  25 of the Arms Act falling under Chapter V  of  the said Act is included within the said definition clause.  But what  the section requires is that to bring a person  within that  definition,  it must be shown that  he  is  habitually committing  or attempting to commit or abetting the  commis- sion  of offences enumerated therein. In the  instant  case, the  registration  of only one case is mentioned  under  the provisions  of  Section 307 of IPC and 25 of  the  Arms  Act falling  within the said definition clause. Therefore,  this solitary  incident  would hardly be sufficient  to  conclude that  the detenu was habitually committing or attempting  to commit  or abetting the commission of offences. The  general and vague allegations made in the grounds of detention  that the  detenu  was taking active part in  communal  riots  and entered  into conspiracy to spread an atmosphere  of  terror being a member of the gang of Abdul Latif Abdul Wahab Shaikh in  the absence of any specific instance or registration  of any  case thereof, cannot be construed as  offences  falling under any of the above three chapters of the IPC or  Chapter V  of  the Arms Act enumerated under Section 2(c) so  as  to characterise the detenu as a ’dangerous person’.     Hence  we are of the view that the conclusions drawn  by the  detaining  authority  that the detenu  is  a  dangerous person  is bereft of sufficient material as  required  under Section  2(c). Therefore, we hold that the detenu cannot  be termed as a ’dangerous person’.     No doubt as per Section 6 of the Act, grounds of  deten- tion are severable and as such the order of detention should not be deemed to be invalid or inoperative if one or some of the  grounds are invalid. In the present case, the  question for consideration is that even if the impugned order  cannot be  sustained on the ground that the detenu is a  ’dangerous person’,  can it be sustained on the other ground  that  the

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detenu is a ’bootlegger’. The answer is that the order could be sustained, provided there are materials to show that  the bootlegging  activities of the detenu affected adversely  or were  likely  to affect the maintenance of public  order.  A conjoint  reading of Section 2(b) and Section 3(4) with  the explanation annexed thereto clearly spells out 189 that  in order to clamp an order of detention upon a  ’boot- legger’ under Section 3 of the Act, the detaining  authority must  not only be satisfied that the person is a  bootlegger within the meaning of Section 2(b) but also that the activi- ties  of the said bootlegger affect adversely or  likely  to affect adversely the maintenance of public order.  Reverting to  the  facts of this case, the vague  allegations  in  the grounds  of detention that the detenu is the main member  of the  gang  of Abdul Latif Abdul Wahab  Shaikh  indulging  in bootlegging activities and that the detenu is taking  active part  in such dangerous activities, are not  sufficient  for holding  that  his  activities affected  adversely  or  were likely  to affect adversely the maintenance of public  order in compliance with subSection 4 of Section 3 of the Act that the  activities  of the detenu have caused harm,  danger  or alarm or a feeling of insecurity among the general public or any Section thereof or a grave or widespread danger to life, property or public health as per the explanation to  Section 3(4).     The  offences  registered in the  above  mentioned  four cases  against the detenu on the ground that he was  dealing in liquor have no bearing on the question of maintenance  of public order in the absence of any other material that those activities of the detenu have adversely affected the mainte- nance of public order.     There is a catena of decisions dealing with the question of ’maintenance of public order’. But we think that it  will be  sufficient to make reference to the following two  deci- sions.     This  Court  in  Ashok Kumar  v.  Delhi  Administration, [1982] SCC 403 has observed: "It is the potentiality of the act to disturb the even tempo of  the life of the community which makes it prejudicial  to the maintenance of public order."     In  a recent decision of this Court in  Piyush  Kantilal Mehta  v.  The Commissioner of Police,  Ahmedabad  City  and Anr., Judgments Today 1988 (4) 703 a question similar to one before us arose for consideration. In that case, the allega- tions in the grounds of detention were that the detenu was a prohibition  bootlegger, that he was indulged into the  sale of foreign liquor and that he and his associates indulged in use of force and violence and also beating innocent citizens by which an atmosphere of fear was created. In that case the detenu was alleged to have been caught red-handed possessing English wines with foreign marks and in the second  occasion he was caught while shifting 296 190 bottles of foreign liquor in an Ambassador car. While  deal- ing with that case, this Court observed as follows: "It is true some incidents of beating by the petitioner  had taken  place, as alleged by the witnesses. But,  such  inci- dents,  in our view, do not have any bearing on the  mainte- nance  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

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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."     The  above  observation, in our view, will  be  squarely applicable  to the facts of this case, in view of  the  rea- sons, we have already adverted to in the earlier portion  of this judgment.     Hence  for all the reasons aforesaid, we allow the  Writ Petition  and  quash  the impugned order  of  detention  and direct the detenu to be set at liberty forthwith. T.N.A.                                              Petition allowed. 191