2000 Supreme(Bom) 743

IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
B.P. Singh, C.J., Vishnu Sahai S. Radhakrishnan, JJ.
Subhangi Tukaram Sawant another.... Petitioners.
Versus
R.H. Mendonca, Commissioner of Police others.... Respondents.
Criminal Writ Petition Nos. 102 103 of 2000, decided on 21-9-2000.
Advocates appeared :
S.R. Chitnis, Sr.A., for petitioner (in both the writ petitions).
Ms. V.K. Tahilramani, P.P., for respondents (in both the writ petitions).

Headnote:Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug offenders and Dangerous Persons Act, 1981 (MPDA Act) - Detention orders under against Tukaram Bhaskar Sawant and Raju Bhagwan Gupta being dangerous persons as per Section 2(b-l) of the Act - Writ petitions against detention orders - Conflicting views of various Division Benches with regard to meaning of "dangerous persons" Question of law referred to Full Bench to resolve the conflict - Whether it is imperative that a person must have to his discredit two or more convictions before he can be described as a "dangerous person" as defined under Section 2(b-l) of the MPDA Act 1981? (No) - Interpretation of expressions habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the I.P.C. or any of the offences punishable under chapter V of the Arms Act, 1959 - Whether envisages prior conviction? (No) - Per Majority (Radhakrishnan, J. and B.P. Singh C.J.) (Para 33) - Vishnu Sabai, J. also agreeing (but giving additional reasons) (Para 1 of his judgment) Case Law discussed - Rule of judicial discipline and proper clause in case of conflicts stated.

       Held: Shri S.R. Chitnis, the learned Counsel for the petitioners had strongly contended that before a person can be detained as a dangerous person as per the provisions of the aforesaid M.P.D.A. Act. He, must have at least two prior convictions and without the same, he cannot be a dangerous person. The learned Counsel in that behalf also strongly relied on the reasonings in support of the said contention in the judgments of Division Benches from Nagpur, in Criminal Writ Petition No. 134 of 1997 (S.K. Shams her v. State of Maharashtra) and Criminal Writ Petition No. 259 of 1997 (S.S. Chauhan v. State of Maharshtra & Ors.). (Para 3)

       Ms. Tahilramani, the learned Public Prosecutor appearing on behalf of the State had formulated certain broad submissions as under:-

       (a) MPDA Act is basically a preventive detention law.

       (b) Habitually commits or attempts to commit as such no conviction is visualised.

       (c) There is no Supreme Court decision which lays down that there should be a prerequisite of a previous conviction, before passing an order for preventive detention with regard to a dangerous person.

       (d) Preventive detention law is meant to prevent the commission of serious crimes and to protect the society.

       (e) Individual liberty may, have to be curtailed to protect the larger interests and safety of society. (Para 10)

       In the said judgment, the Supreme Court has nowhere held that there must be two prior convictions before passing of an order of preventive detention. The views quoted from Law Lexicon and Judicial Dictionary are that of the respective authors. The Supreme Court has nowhere indicated that they are also of the same view. Therefore, mere quotations from learned authors court not substitute the view of the Supreme Court. We do not find anywhere in the said judgment the Supreme Court has laid down the proposition that there must be two prior convictions before passing of an order of preventive detention. (Para 24)

       On the contrary, the learned Public Prosecutor had cited various authorities cited hereinabove, in support of her contention that there is no need of two prior convictions before passing of an order of preventive detention. As rightly pointed out by the learned Public Prosecutor, in the case of preventive detention law what is visualised is habitual commission or attempt to commit and not a prior conviction. (Para 26)

       On the contrary, the aforesaid two Division Bench judgments in S.K. Shamsher v. State of Maharashtra (supra) and S.S. Chavan v. State of Maharashtra & Ors. (supra) of Nagpur Bench proceed on an erroneous assumption that in Mustakmiya Jabbarmiya Shaikh (supra) the Supreme Court has held that there must be two prior convictions before passing an order of preventive detention. Even otherwise the reasoning that unless and until there is a conviction, no habit can be inferred and that the same can be inferred only after two judicial decisions resulting in convictions, cannot be sustained in law. If the above reasoning is accepted, it will lead to a preposterous situation, since two prior conviction will take a number of years and till then the person concerned can continue to indulge in such crimes with impunity. The proximity aspect before passing a detention order will also be lost. The reasoning that a person is said to have committed an offence only after a conviction, is totally irrational and the same cannot be sustained. The above reasoning would render the preventive detention law totally nugatory and meaningless. We find the above reasoning totally meaningless and patently contrary to various Supreme Court decisions cited hereinabove. As observed by the Supreme Court in various decisions, the authorities may not be able to secure convictions at all but that does not mean no preventive detention order could be passed. (Para 32)

       Under the aforesaid circumstances, for the reasons set out hereinabove, we unequivocally answer the question of law referred to us in the negative, that is to say that there is no necessity of two prior convictions, before a person could be detained as a “dangerous person" as per Section 2 (b-l) of M.P.D.A. Act. We further hold that the Division Bench decisions of this Court in S.K. Shamsher v. State of Maharashtra, Sanjay S. Chauhan v. State of Maharashtra and Ors. (supra) and M. Y. Pathan v. State of Maharashtra & Ors. (supra) insofar as they lay down the law to the contrary, do not lay down the law correctly, and are, therefore, over-ruled. In the light of the above decision on the referred question of law, now both the above writ petitions be placed before the regular Division Bench for disposal on its own merits. (Para 33)

       Before parting with this reference, we would like to refer to certain disturbing aspects as disclosed. Even though the above two Division Bench judgments from Nagpur Bench held that before passing of an order of preventive detention, there ought to be two prior convictions, another Division Bench from Nagpur in Raju Shivaji Thakra (supra) and other matters, chose to disagree, without referring the matter to be resolved by a larger Bench. This was judicially inappropriate, because even if the dissent had merit, it should have found expression only in a manner consistent with the accepted norms of judicial propriety and discipline which are the hallmarks of judicial behaviour. Any deviation there from tends to erode the edifice of judicial sanctity. (Para 34)

       Similarly, even after this larger. Bench was constituted to resolve the above conflict, another Division Bench at Nagpur in W.P. No. 350 of 1999 (M.Y. Pathan v. State of Maharashtra & Ors.) on 23rd June, 2000-proceeded to decide the matter, even, after being informed of the constitution of a larger Bench. This was also totally inappropriate and the persistence rather unfortunate. (Para 35)

       Per Vishnu Sahai. J. - I have gone through the erudite Judgment of my learned brother S. Radhakrishnan, J. Although I agree with his conclusion and the reasons furnished by him in answering in negative the question referred to this Full Bench:- “Whether it is imperative that a person must have to his discredit two or more convictions before he can be detained as a "dangerous person" under Section 2 (b-i) of the MPDA Act". I would like to enlist some additional reasons. Section 2 (b-i) of the MPDA Act reads thus:

       "dangerous person" means a person who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences, punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V, of the Arms Act 1959".

       A plain reading of Section 2 (b-i) of the MPDA Act would show that the word habitually has to be read conjunctively, not only with the word commits but also with the expressions attempts to commit and abets the commission of. To my mind the language of Section - 2 (b-i) of the MPDA Act makes it crystal clear that Mr. Chitniss premise that before a person can be detained as a "dangerous person" under the said provision he must have to his discredit two or more convictions, is erroneous. The word habitually as used in Section 2 (b-i) of the MPDA Act means persistently, repeatedly or continuously. Just as a single swallow does not make a summer, a solitary act does not constitute a habit. Hence I have no difficulty in agreeing with Mr. Chitniss submission that habitually as used in Section 2 (b-i) of the MPDA Act, means more than once. But where I cannot see eye to eye with Mr. Chitnis is when he urges that the words "habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act 1959" as used in the said provision imply that a person should have to his discredit atleast two or more convictions under the said provisions. It is a time:" honoured cannon of interpretation of statutes that where the words used in a statute are clear and unambiguous in their meaning. Courts do not do any violence with the language of a statute and construe them literally. I fail to understand as to how the expressions "habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act 1959 envisage of conviction in respect of those offences. The expressions commits, commit, commission of offences are distinct in meaning and connotation from conviction. They clearly do not connote a conviction. An offence is committed or there is a commission of offence, when the offence takes place. For instance if A intentionally fires on B with a view to kill him the moment B is dead, A has committed the offence of murder, within the terms of clause firstly of Section 300. I.P.C. under Chapter XVI of the Indian Penal Code. If Mr. Chitniss submission was to be accepted then in the illustration furnished above, the offence of murder would only be deemed to have been committed after A was found guilty of it." I am afraid such an inference militates against commonsense and is unworthy of acceptance. It would be presumptuous to suggest that when the Legislature enacted Section 2 (b-i) of the MPDA Act it was oblivious of the distinction between the expressions commits an offence/ commission of offences as used therein and conviction in respect of offences referred to therein. In my view the Legislature in all its wisdom, with the avowed object that habitual commission of offences punishable under Chapter XVI or XVII of the Indian Penal Code or Chapter V of the Arms Act 1959 had to be prevented, has deliberately not used the word conviction in Section 2 (b-i). It was alive to the grim reality that it takes a agonisingly long time between the commission of an offence and the trial of the accused who are to be prosecuted for it and if it used the word conviction, the very objective of the enactment of the MPDA Act, which was preventive, would be frustrated. Had the Legislature intended that a person should have to his discredit two or more convictions before he could be detained as a "dangerous person" under Section 2 (b-i) of the MPDA Act, the said provision instead of its present form would have read thus dangerous person means a person who either by himself or as member or leader of gang has been repeatedly convicted for committing or attempting to commit or abetting the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959. (Vishnu Sahai, J.). Personal Assistant to issue an ordinary copy of the order to the parties. (Paras 1 to 9)