Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5
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