1999 Supreme(SC) 689

1999(6) Supreme 32
Supreme Court of India
(From Gujarat High Court)
G.B. Pattanaik and D.P. Wadhwa, JJ.
Amanulla Khan Kudeatalla Khan Pathan -Appellant/Petitioner
versus
State of Gujarat & Ors. -Respondents
Criminal Appeal No. 618 of 1999
(@ SLP (Criminal) No. 1414 of 1999
With
Writ Petition (Criminal) No. 71 of 1999
Decided on 28-6-1999
Counsel for the Parties :
For the Appellant/Petitioner : Anil Kumar Nauriya, Shaukat, A. Shaikh, and A.P. Medh, Advocates.
For the Respondents : Mrs. Rekha Pandey, Mrs. Hemantika Wahi and Ms. Anu Sawhney, Advocates.

Important points
1. An isolated act would not justify an inference of habitually commission of the activity so as to brand a person as dangerous person within ambit of Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act.
2. Even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of socie­ty that determines whether the activities can be said to be prejudi­cial to the maintenance of public order or not.
3. It is not required to be stated in the grounds of detention as to why the detaining authority has formed the opinion that the activities in question cannot be adequately dealt with under the provisions of Bombay Police Act.

Headnote:(i) Gujarat Prevention of Anti-Social Activities Act, 1985-Sec­tions 2(c) and 3-Dangerous person-Meaning of-Detention order -Legality of-An isolated act would not justify an inference of habitually commission of the activity so as to brand a person as dangerous person-One criminal case registered against detenue and other two incidents of extortion came to light through witnesses before detaining authority - Detention on basis of three incidents validly ordered.

       Held : The expression “habitually” would obviously mean repeated­ly or persistently. It supplies the threat of continuity of the activities and, therefore, as isolated act would not justify an inference of habitually commission of the activity. (Para 4)

       In the instant case apart from the criminal case which had been registered against the detenu for having formed a gang and hatched a conspiracy to extort money from the inno­cent citizens by threatening them and keeping them under constant fear of death, the two witnesses examined by the detaining authority nar­rated the incident that happened on 26.7.1998 and 2.8.1998 in which the detenu was involved and on the first occasion a sum of Rs. 1 lac was demanded and when the person concerned refused, he was dragged and assaulted and on the second occasion a sum of Rs. 50 thousand was demanded and on refusal, the persons were dragged on the road and were beaten on the public road. It is not the grievance of the detenu that the statements of the aforesaid two witnesses had not been append­ed to the grounds of detention or had not been mentioned in the grounds of detention. In fact the grounds of detention clearly mention the aforesaid state of affairs and there is no bar for taking these inci­dents into consideration for the satisfaction of the detaining author­ity that whether the person is a “dangerous person” within the ambit of Section 2(c) of the Act. We, therefore, fail to appreciate the first contention raised by the learned counsel for the petitioner that the satisfaction of the detaining authority that the detenu is a “dangerous person” is based upon the solitary incidence in respect of which a criminal case has already been registered. In our consid­ered opinion the detaining authority has considered the three differ­ent incidents happened on three different dates and not a solitary incidence and, therefore, the test of repeated-ness or continuity of the activity is fully satisfied and the satisfaction of the detaining authority holding the detenu to be a “dangerous person” is not vitiat­ed in any manner. (Para 4)

       (ii) Gujarat Prevention of Anti-Social Activities Act, 1985-Section 3(2), (4) - Preventive detention-‘Act­ing in any manner prejudicial to maintenance of public order’-What amounts to?-Even an activity vio­lating an ordinary legal provision may in a given case be a matter of public order.

       Held : Even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of socie­ty that determines whether the activities can be said to be prejudi­cial to the maintenance of public order or not. (Para 5)

       In the instant case the activ­ities of the detenu by trying to extort money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them and torture them on public road undoubtedly affect­ed the even tempo of life of the society and, therefore such activities cannot be said to be a mere disturbance of law and order. In our considered opinion the activities of the detenu are such that the detaining authority was satisfied that such activities amount to disturbance of public order and to prevent such disturbance the order of detention was passed. (Para 5)

       (iii) Gujarat Prevention of Anti-Social Activities Act, 1985-Section 3 r/w Article 22 of Constitution of India - Preventive detention-Leg­ality of order-Non-considera­tion of representation by detaining autho­rity-When would vitiate detention order?

       Held : If a representation is made by the detenu to the authorised officer for revoking or modifying the detention order then it would be certainly his constitutional obliga­tion to consider the same and pass appropriate orders thereon and non-consideration would tantamount to violation of Constitutional rights to a detenu under Article 22(5). But if a representation is made to a specified authority and that specified authority in the given case is the State Government and the Advisory Board considers the same and disposes it of, then at that stage the question of the detaining authority considering the said representation even though not ad­dressed to it does not arise. (Para 6)

       If the Gujarat Prevention of Anti-Social Activities Act, 1985 is analysed it would appear that the legis­lature has circumscribed the powers of the detaining authority by providing that an order of detention would lapse after 12 days from the passing of the order unless the State Government has within the said period endorsed and ratified the same. Therefore within the aforesaid period of 12 days, the detaining authority has the power to revocation which he can exercise before the State Government ratifies the same. But once the State Government approves the order of deten­tion then on the same set of circumstances the detaining authority cannot revoke an order of detention. Though if subsequent circum­stances change, the detaining authority may have the power of revoca­tion in view of the provisions of the General Clauses Act. But when no representation is made to the detaining authority after the order of detention passed by him is approved by the State Government indi­cating new set of circumstances requiring the detaining authority to consider his representation, and on the other hand the representation is addressed to the Advisory Board, we see no requirement of law for that represen­tation being also to be disposed of by the detaining authority and such non-disposal would amount to violation of the Constitutional right of the detenu under Article 22(5) of the Consti­tution. (Para 6)

       (iv) Gujarat Prevention of Anti-Social Activities Act, 1985-Section 3-Preventive detention-It is not required to be stated in grounds of detention as to why detaining authority has formed opinion that activ­ity in question cannot be adequately dealt with under Bombay Police Act.

       Held : The satisfaction of the de­taining authority on consideration of the activities of the detenu and on forming an opinion that the activities are such which affects the maintenance of public order and as such it is necessary to put the detenu under detention cannot be interfered with by the court of law on mere assertion of the detenu. (Para 6)

       It is not required to be stated in the grounds of detention as to why the detaining authority has formed the opinion that the activities in question cannot be adequately dealt with under the provisions of Bombay Police Act. (Para 6)