1. Challenge to detention order under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985, alleging the detenu is a dangerous person. (Para 1 , 2 , 3 )
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1995 Supreme(SC) 414
SUPREME COURT OF INDIA
(BEFORE S.C. AGRAWAL AND FAIZAN UDDIN, JJ.)
MUSTAKMIYA JABBARMIYA SHAIKH
Versus
M.M. MEHTA, COMMISSIONER OF POLICE AND OTHERS
Writ Petition (Cri.) No. 335 of 1994{Under Article 32 of the Constitution of India}
Decided on 23-3-1995
Advocates appeared:
Sushil Kumar, Senior Advocate (Safia Khan, Shakeel Ahmed and M.I.C. Mansur Ali, Advocates, with him) for the Petitioner;
S.K. Dholakia, Senior Advocate (S.K. Sabharwal and Ms H. Wahi, Advocates, with him) for the Respondents.
Important Points
To qualify as a "dangerous person" for preventive detention, a person must habitually commit specific offences, implying a thread of continuity rather than isolated acts. Additionally, "public order" requires a disturbance affecting the community's even tempo of life, distinct from individual "law and order" breaches.
Subject
Detention - Preventive Detention
Act Referred
Headnote
Gujarat Prevention of Anti-Social Activities Act, 1985 - Sections 2 (c) & 3 (1) (4) - Order of detention under - Petitioner was habitually indulging in criminal and anti social activities - Keeping fire-arms, beating and assaulting innocent citizens in public – Different - offences under different Sections were charged - All incidents are connected/related against Individual person, whether the incidents can be said to be incidents affecting public order? - (No) (Cross Ref: Constitution of India. Art. 32 - Writ Petition challenging detention order).
Held: They were incidents directed against single individuals having no adverse affect prejudicial to the maintenance of public order disturbing the even tempo of life or the peace and tran-quillity of the locality. Such casual and isolated incidents can hardly have any implications which may affect the even tempo of life or jeopardize the public order and incite people to make further breaches of the law and order which may result in subversion of the public order. As said earlier the Act by itself is not determinant of its own gravity but it is the potentiality of the act which matters (Para 11)
Further held: Consequently, we allow the writ petition and quash the impugned order of detention and direct that the petitioner be released
forthwith. Writ allowed. (Para 13)
Legal Category Hierarchy
-
constitutional law
-
writ jurisdiction
- article 32 (Para 1)
-
writ jurisdiction
- administrative law
- criminal law
- statutory interpretation
Advocates:
H.VAHI, M.I.C.MANSUR ALI, S.K.DHOLAKIA, S.K.SABHARWAL, SAFIA KHAN, SHAKEEL AHMAD SYED, SUSHIL JAIN
H.VAHI, M.I.C.MANSUR ALI, S.K.DHOLAKIA, S.K.SABHARWAL, SAFIA KHAN, SHAKEEL AHMAD SYED, SUSHIL JAIN
Table of Contents
2. Challenge based on lack of habitual criminal activity, staleness of incidents, and failure of alleged offences to meet the statutory definition of a dangerous person. (Para 5 )
3. The court found the alleged incidents were isolated acts against individuals, failing to disturb the community's even tempo or establish a habitual pattern of criminal activity. (Para 8 , 9 , 10 , 11 , 12 )
4. Preventive detention requires proof of habitual commission of specified offences and a disturbance to public order, distinguished from isolated acts affecting only law and order. (Para 8 , 9 )
5. Writ petition allowed, detention order quashed, and immediate release of the detenu directed. (Para 13 )
6. What constitutes a dangerous person under the Gujarat Prevention of Anti-Social Activities Act?
A dangerous person is one who habitually commits, attempts to commit, or abets offences punishable under Chapters XVI or XVII of the IPC or Chapter V of the Arms Act. Isolated offences are insufficient to establish this status. (Para 6 , 8 )
7. What is the legal distinction between law and order and public order?
Public order refers to the even tempo of life of the community. Acts directed against individuals that do not disturb society to the extent of causing general public tranquillity are breaches of law and order, not public order. (Para 9 )
8. Can a stale incident be used as a ground for a preventive detention order?
A stale incident, where a significant lapse of time exists between the alleged activity and the detention order, loses significance and lacks a rational connection to the necessity of detention for public order. (Para 10 )
9. Does the mere possession of a firearm automatically justify detention for affecting public order?
No. Mere possession of a firearm without a permit is an offence, but it does not necessarily affect public order unless the person is also established as a dangerous person under the statutory definition. (Para 12 )
JUDGMENT
FAIZAN UDDIN, J.- This writ petition under Article 32 of the Constitution of India has been filed by the petitioner challenging the correctness and validity of the detention order dated 19-8-1994 passed by the Commissioner of Police, Shahibagh, Ahmedabad city, detaining the petitioner 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 to as the Act) with a view to preventing the petitioner-detenu from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad city. In pursuance of the said order the petitioner has been detained in jail, Junagarh.
2. Briefly stated the alleged activities of the detenu-petitioner as set out in the grounds of detention dated 19-8-1994 are that the petitioner was habitually indulging in criminal and anti-social activities in the area of Shahpur, Patwasheri area of Teen Darwaza and Sardar Garden area of Ahmedabad city by keeping firearms, beating and assaulting innocent citizens in public and creating an atmosphere of fear and terror in the said areas. It has been alleged that the four witnesses have stated in their statement that the detenu-petitioner is a headstrong, fierce and habitual criminal and, therefore, nobody comes forward to complain against him and the said witnesses have made a request not to disclose their names and identity for fear of the petitioner and, therefore, the names and identity of the witnesses have not been disclosed in public interest under Section 9(2) of the Act. The relevant criminal activities as alleged against the detenu-petitioner are precisely detailed herein below:
S.
No.
Date &
Time
Place of
occurrence
C.R.
No.
Nature of
offence
Seizure of
incriminating
articles
Disposal
1.
24-04-93
06.30
p.m.
Glamour
Hair
Dresser
Shahpur
I 66/93
Under Sections
307, 452/34
IPC & 25(1)(a),
Arms Act &
Sections 135 (1)
of Bombay
Police Act.
__
pending
2.
11-04-94
10.30
a.m.
Shahpur of
DCB
7/94
Sections
212/214 IPC
harbouring the
absconding
offender of CR
No. 63 of 1993
of Shahpur.
__
3.
10-08-94
04.00
p.m.
Patwasheri
Area of
Teen
Darwaza
__
Purchased
goods worth
Rs 500 and on
demand of
price thereof
dragging and
beating the
businessman on
public road and
pointing revolver
towards persons
gathered there.
__
4.
12-08-94
07.00
p.m.
Eastern
Gate Sardar
Garden
__
Stopping the
witness and
beating him
doubting that he
was informing
police about his
anti-social
activities and
pointing revolver
towards persons
gathered there.
__
5.
14-08-94
07.45
p.m.
DCB
19/94
Under Section
25(1) Arms Act
Point 34
country-made
revolver and 4
cartridges
3. On the basis of the aforementioned cases and material connected therewith as well as on the basis of statements of four witnesses the detaining authority came to the conclusion that the petitioner is an anti-social element and a dangerous person within the definition of Section 2(c) of the Act who is habitually engaged in committing and attempting to commit violent activities and creating an atmosphere of fear by keeping firearms without pass/permit and with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of public order passed the impugned order of detention.
4. Initially Shri Sushil Kumar, learned Senior Counsel for the petitioner canvassed that the petitioner had made representation on 26-8-1994 to the Superintendent, District Jail, Junagarh for onward transmission to the competent authorities for its disposal but the said representation of the petitioner had not been disposed of so far. But Shri P.S. Vyas, Under Secretary to the Government of Gujarat, Home Department (Special) in his affidavit clearly indicated that the petitioners representation dated 26-8-1994 which was submitted by him on 31-8-1994 and received by the State Government on 5-9-1994 was decided on 6-9-1994 and since 9-10-1994 and 11-9-1994 were holidays the said decision was communicated to the petitioner by letter dated 12-9-1994. Faced with this situation it was not p
