Back
2002 (3) Crimes 602
BOMBAY HIGH COURT (FB)
B.P. Singh CJ; Vishnu Sahai and S. Radhakrishnan, JJ.
Smt. Shubhangi Tukaram Sawant and Ors. - Petitioners
versus
R.H. Mendonca, Commissioner of Police and Ors. - Respondents
Crl. Writ Petition Nos. 102 and 103 of 2000
Decided on 21-9-2001
Counsel for the parties:
For the Petitioners:Shri S.R. Chitnis, Advocate.
For the Respondents:Mr. Anil Kumar Nauriya, Advocate.
IMPORTANT POINT
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.
Headnote:Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 - Section 2(b-i) - Preventive detention order describing detenu as "dangerous person" - Meaning of expression" dangerous person" Conflicting views by various Division Benches with regard to meaning of “dangerous person" - Reference of question of law to Full Bench "whether it was imperative that a person must have to his discredit two or more convictions before he could be defined as "dangerous person''? No.
Held: 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 convictions 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 is 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 s no necessity of two prior convictions, before a person could be detained as a "dangerous person" as per Section 2(b-i) of M.P.D.A Act. We further hold that the Division Bench decisions of this Court in S.K. Shams her v. State of Maharashtra, Writ Petition No. 134 of 1997 Sanjay S. Chauhan v. State of Maharashtra, Criminal Writ Petition No. 259 of 1997 and M.Y. Pathan v. State of Maharashtra and others, W.P. No. 350 of 1999. (Para 33)
Result: Reference answered.
JUDGMENT
S. Radhakrishnan, J.- In both the above writ petitions detention orders passed by the first Respondent Commissioner of Police, Brihan Mumbai under the provisions of Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 have been challenged and the detenus Tukaram Bhaskar Sawant and Raju Bhagwan Gupta have been described as dangerous persons. Earlier both the writ petitions came up before the Division Bench of this Court and in view of the conflicting views of the various Division Benches of the High Court with regard to the meaning of "dangerous person" the Division Bench by its order 25th April. 2000 had directed the Registrar to seek appropriate orders from the Hon'ble Chief Justice for constituting a larger bench, to resolve the conflict as to 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", as per Section 2 (b-1) of the aforesaid M.P.D.A. Act. Accordingly the present Full Bench was constituted to resolve the above conflict.
2. Thus, we have heard both the learned counsels exhaustively on the above question of law, that is "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" as defined under Section 2(b-i) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Offenders and Dangerous Person Act, 1981?"
3. 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 judgment of Division Benches from Nagpur, in S.K. Shams her v. State of Maharashtra1 and S.S. Chauhan v. State of Maharashtra2.
4. The learned counsel for the petitioners at the outset brought to our notice the provisions of Section 2(b-i) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug-Offenders and Dangerous Persons Act, 1981 (hereinafter referred to as "the Act") which defines "dangerous person" as under:
"(b-1) "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 pm1ishable under Chapter V of the Arms Act. 1959."
Secondly, Shri Chitnis also pointed out the provisions of Section 2(c) of the Gujarat Prevention of Anti Social Activities Act, 1985, which reads as under:
"(c) "Dangerous person" means a person, who either by himself or as a member or leader of a gang, habitually commit, 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."
Thirdly, Shri Chitnis brought to our notice the provisions of Section 2(d) of the Bihar Control of Crimes Act, 1981 which reads as under:
(d) "Anti-Social Elements" means a person who is
"(i) 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 of the Indian Penal Code. or
(ii) habitually commits or abets the commission of offences under the Suppression of Immoral Traffic in Women and Girls Act, 1956, or
(iii) Who by words or otherwise promotes or attempts to promote on grounds of religion, race, language, caste or community or any other grounds whatsoever, feelings of enmity or hatred between different religions, racial or language groups or castes or communities; o
