IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10505 of 1996 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- MOHMAD SALIM @ SALIM KHAN IKBALHUSEN PATHAN Versus POLICE COMMISSIONER -------------------------------------------------------------- Appearance: MS BANNA DATTA with MR BN RAVAL for Petitioner MR MR ANAND, GP with MS AMIBEN YAGNIK, AGP for Respondents No. 1, 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH Date of decision: 12/02/97 ORAL JUDGEMENT 1. By way of this petition under Article 226 of the Constitution of India the petitioner-detenu has brought under chalenge the detention order dated 5/7/1996 passed by the respondent no.1 u/S, 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (Act No. 16 of 1985), (for short "the PASA Act"). 2. The grounds on which the impugned order of detention has been passed appear at Annexure-C. They inter-alia indicate that the petitioner by himself and with the aid of his associates Sabirkhan Pathan and others have been indulging in unlawful and criminal activities of committing thefts of motor vehicles and have been creating a feeling of insecurity amongst the vehicles owners. Following offences have been registered against the petitioner : S.No. Police Station C.R.No. Sections of Stolen I.P.C. property/ recovery/ disposal. ---- -------------- -------- ------- ----------- 1. Vejalpur 42/96 379, 114 Maruti van of Rs.2 lacs same pending inve stigation. 2. Ellisbridge 178/96 " Maruti van valued Rs. 60,000/- " " 3. Satellite 219/96 " Tata Estate valued Rs. 4,50,000/- " " 4. Navrangpura 294/96 " Motor cycle valued Rs. 20,000/- " ". It has further been recited that the petitioner and his associates were involved in the offences of robbery and decoity. The police had an information that petitioner and his associates had assembled in the estate located behind Shere Punjab Hotel near Chandola Lake with an intention to commit decoity. Upon the police raiding the place, the petitioner and his associates with the aid of one another opened firing on the police party and attempted to commit murder by causing hurt to the police person/s. This resulted in the police counteracting and opening firing. Persons of both the parties ultimately came to be injured in the encounter. As a result of this incident, following offence came to be registered against the petitioner and his associates in the Ahmedabad City D.C.B. Police Station :- C.R. No. 8/96 u/Ss. 399, 400, 307, 114 of the IPC read with sections 25(1)(B) and 27 of the Arms Act and section 135(1) of the Bombay Police Act. Fire arms and deadly weapons were recovered and the investigation has been shown to be in progress on the date of the order of the detention. It has, therefore, been inter-alia recited that the detenu's anti-social activity tends to obstruct maintenance of public order and the petitioner has been stamped as a "dangerous person" within the meaning of section 2 (c) of the PASA Act. 3. Proceeding further to consider the necessity of detaining the petitioner, who was in judicial custody, the detaining authority has referred to the statements of four witnesses in respect of unregistered incidents dated 7/4/1996 and 29/4/1996. It has been asserted that at about 5.00 O'clock in the evening of 7/4/1996 the petitioner demanded Rs.500/- from the concerned witness, who having given Rs.200/- only, was threatened. He was brought on to the public road opposite Ganj Shahid Dargah and beaten. On the witness having shouted for help people collected at the place of the incident, the petitioner and his associates rushed to the people with weapons resulting in atmosphere of fear amongst the people collected there. Similar is the pattern of the incident dated 29/4/1996, which occurred around 12.30 O'clock in the after-noon, the cause of the incident being non-payment of price of goods purchased by the petitioner and his associates. 4. The detaining authority has also asserted that it has become necessary to preventively detain the petitioner as at any time he might apply for bail and get himself released in any of the offences registered against him. The petitioner has been supplied with all the papers on which reliance has been placed by the detaining authority. 5. I have heard the learned advocate appearing for the petitioner and the Ld. G.P. for the State. The petitioner has in the first instance challenged the impugned order of detention on the ground that there was no necessity of preventively detaining the petitioner u/S. 3 (1) of the PASA Act in as much as the petitioner did not prefer any bail application on the date of detention. In order to substantiate this ground, it has further been submitted that even till this day no application has been preferred and, therefore, since the date of detention, the detention order has become invalid for want of application of mind on the part of the detaining authority. In support of this argument a decision rendered by this Court on 13/1/1997 in Special Civil Application No. 9937 of 1996 has been canvassed. In that case the detenu was arrested in connection with C.R. No. 64/96 registered at Limbayat Police Station on 21/7/1996. He was also arrested in connection with C.R. No. 109 of 1996 of Limbayat Police Station on the same day. In connection with both the cases the detenu there was not granted bail. Inspite of his making applications for bail to the concerned Court, the detenu remained in jail for a period of 40 days, but he could not secure bail. At the time of order of detention passed against him, he was in jail. Clarifying these facts it has further been submitted that in so far as C.R. no. 109/96 was concerned, the detenu did not at all file any bail application and consequently continued in judicial custody. Order of rejection of bail passed on 20/8/1996 in Criminal Bail Application No. 819 of 1996 in respect of C.R. No. 64/96 was also shown to the Court. On the basis of such facts it was submitted to this Court that there was no compelling necessity to pass the order of detention against the said detenu. This submission was sought to be supported by the decision of the Apex Court in the case of Dharmendra Sugarchand Chelwat v. Union of India reported in AIR 1990 SC 1196. As in the decision rendered by this Court here also the observations of the Apex Court as appearing in para. 19 of the citation might be reproduced :- "The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." It can be seen from the facts of the cases, both before the Hon'ble Supreme Court as well as before this Court that bail was rejected by the appropriate Court resulting in reaching the conclusion that there was no necessity of passing the order of detention. In the present case the detaining authority has recorded his subjective satisfaction by asserting in the grounds themselves that the petitioner has not preferred any bail application and he might be enlarged on bail in case he would prefer such bail application. That is how the present case stands on a different footing vis-a-vis the ground on which the impugned order of detention is sought to be assailed. In the present case it cannot be said that the subjectivve satisfaction of the detaining authority is unfounded. This Court cannot enter into the merits of the aforesaid cases for the purpose of finding out whether the petitioner might be bailed out or not by the appropriate Court. In that view of the matter, this ground of challenge to the impugned order of detention cannot be accepted. 6. It has then been submitted that the impugned order of detention would stand vitiated on the ground that there is no material to indicate that the detenu's conduct would show that he is habitually engaged in the anti-social activities, which can be said to be prejudicial to the maintenance of public order. This is a case of individual incidents affecting law and order. In support of this submission reliance has first been placed on the decision of the Hon'ble Supreme Court in the case of Gulab Mehra v/s. State of U.P. and ors. reported in AIR 1987 SC 2332. There were two grounds of detention mentioned in the order of detention passed against the detenu in that case. Firstly, on 2/10/1986 the detenu threatened the shop keepers of Khalasi Line locality in order to extort money inter-alia saying that shop keeper should collect money and give it to the detenu or else he would shoot all of them. A case was registered in the police station, Kydganj, Allahabad. Secondly on 3/10/1986 the detenu armed with illegal bombs went towards Uttam Talkies, Kydganj, Allahabad with the intention of committing serious offence. On information having been received, the police went to arrest the detenu, who with the intention to kill lobbed a bomb, but the police party escaped it by a hair's breadth and the bomb exploded. This resulted in stampede in the public and the people closing down doors and windows of their houses and shops. The traffic was stopped and the people were terror-stricken. The police arrested the detenu on the spot and recovered 3 illegal bombs from him. As the High Court dismissed the writ petition filed by the detenu the matter went before the Apex Court. Making a brief resume of the earlier decisions in the case of Kanu Biswas v. State of West Bengal reported in AIR 1972 SC 1656, Haradhan Saha v. State of West Bengal reported in AIR 1974 SC 2154, Dr. Ram Manohar Lohia v. State of Bihar, reported in AIR 1966 SC 740, Arun Ghosh v. State of West Bengal, reported in AIR 1970 SC 1228, Nagendra Nath Mondal v. State of West Bengal reported in AIR 1972 SC 665, Nand Lal Roy alias Nonda Dulal Rot v. State of West Bengal reported in AIR 1972 SC 1566, S.K. Keder v. State of West Bengal reported in AIR 1972 SC 1647, Ashok Kumar v. Delhi Administration reported in AIR 1982 SC 1143 and State of U.P. v. Hari Shankar Tewari reported in AIR 1987 SC 998, the Court observed that in so far as the first incident was concerned, the ground was vague in as muchas the names of the witnesses in whose presence the threat was given and the incident occurred were not mentioned and that as regards the second incident the case was pending trial. It has also been observed that the detenu was in custody and was in jail as an under-trial prisoner on the relevant date when the order of detention was clamped upon him. The Court, therefore, posed a question whether there was possibility of the detaining authority to be satisfied that the detenu was likely to indulge in activities prejudicial to the maintenance of public order as there was no likelihood of he being released from jail custody immediately. Ms. Banna Datta, learned advocate for the petitioner, however, relied upon what has been observed by the Apex Court in para. 17 of the citation, that would read as under :- "17. Thus from these observations it is evident that an act whether amounts to a breach of law and order or a breach of public order solely depends on its extent and reach to the society. If the act is restricted to particular individuals or a group of individuals it breaches the law and order problem but if the effect and reach and potentiality of the act is so deep as to affect the community at large and/or the even tempo of the community then it becomes a breach of the public order." The observations appearing in para. 20 of the citation have also been read before this Court. They were made referring to the earlier decision in the case of State of U.P. v. Hari Shankar Tewari reported in AIR 1987 SC 998. The same might also be reproduced :- "20. On a conspectus of all these decisions it has been observed by this Court in the case of State of U.P. v. Hari Shankar Tewari, (1987) 2 SCC 490 : (AIR 1987 SC 998), that conceptually there is difference between law and order and public order but what in a given situation may be a matter covered by law and order may really turn out to be one of public order. One has to turn to the facts of each case to ascertain whether the matter relates to the larger circle or the smaller circle. An act which may not at all be objected to in certain situation is capable of totally disturbing the public tranquillity. When communal tension is high, an indiscreet act of no significance is likely to disturb or dislocate the even tempo of the life of the community. An order of detention made in such a situation has to take note of the potentiality of the act objected to. Thus, whether an act relates to law and order or to public order depends upon the impact of the act on the life of the community or in other words the reach and effect and potentiality of the act if so put as to disturb or dislocate the even tempo of the life of the community, it will be an act which will affect public order." 7. It is no-doubt true that there is a clear line of distinction between law and order situation and public order situation as has been dealt with from case to case. The guiding principles are now well settled as can be seen in Gulab Mehra's case. However, it has always to be remembered that one has to turn to the facts of each case to ascertain whether the matter would relate to a law and order situation or a public order situation. In Gulab Mehra's case the ultimate conclusion as appearing in para. 31 of the citation deserves to be noted :- "31. On considering these decisions, we are constrained to hold that the clamping of the order of detention is not in accordance with the provision of the Act. Furthermore, the history-sheet does not at all link to the proximity of the two incidents on the basis of which the order of detention was made. It has been vehemently urged before us by the learned counsel appearing for the appellant that in none of the cases mentioned in the history-sheet the appellant has been convicted and moreover these cases related to a period much earlier than the period in which the two cases have occurred. It has also been submitted in this connection by the learned counsel for the appellant that the appellant had not been convicted in any of the cases and the submission of the Sub-Inspector of Police that the witnesses are afraid of disclosing their names and coming forward to give evidence is wholly incorrect and false inas-much as witnesses in fact gave the evidence in a criminal case which ended in acquittal. It has also been submitted by the learned counsel that the shopkeepers of the locality where the alleged hurling of bombs took place have made an application in this case that no such incident occurred on the said dates." That is how the facts before the Apex Court stood and gave rise to the conclusion that the objectionable activities did not affect public order. 8. Mr. Anand, Ld. Government Pleader pointed out 3 further distinguishing features that would flow from Gulam Mehra's case (supra) (i) the detaining authority did not file any affidavit before the Court and it was only the police station officer who had filed the affidavit, (ii) there was apparent unawareness on the part of the detaining authority that the detenu was in judicial custody and was not likely to be released on bail and (iii) barring the two incidents which were proximate in time and in respect of which the ultimate conclusion was reached by the Apex Court as reproduced above, the other incidents were not proximate to the time when the detention order in that case was passed. That is how the Apex Court considered the impact and the reach of the unlawful activities attributed to the detenu there in respect of the two proximate incidents in that case. In the present case the detaining authority has in terms asserted from the facts of the case bearing C.R. No. 8/96 that the unlawful and objectionable activities of the petitioner and his associates would tend to obstruct public order and the public tranquillity would be at stake, if they were not preventively detained. The facts with regard to the aforesaid registered offences have been briefly set out by the detaining authority and they inter-alia indicate that the petitioner and his associates armed with deadly weapons were intending to indulge in committing serious offence of decoity and when they were about to be apprehended, they had assaulted the police party with fire arms and attempted to commit murder while causing hurt to the police personnel. The facts would clearly show that the activities of the detenu would cover a wide field and would endanger not only public peace, but the life and property of people at large. It can, therefore, hardly be said that the facts which appear from C.R. No. 8/96 could be linked up with law and order situation and not public order situation. 9. Reference has then been made on behalf of the petitioner to a decision in the case of Subhash Bhandari v. District Magistrate reported in (1987) 4 S.S.C. 685. In that case the alleged act of assault by fire arms, was confined to the complainant alone and not to others. It had its effect on law and order and not to have its reach on considerable number of members of the society. The criminal act in that case emanated from business rivalry between the detenu and the complainant. It was therefore, found that such an act could not provide basis for subjective satisfaction of the detaining authority to pass an order of detention on the ground that the same would affect public order. It has been observed that no injury was caused to the person of the complainant and no damage was caused to the complainant's car although hand grenade was alleged to have been thrown on the car. It is no doubt true that reliance there was placed on Gulab Mehra's case (supra), but the important factor to be noticed from this decision is that it was the case of one assault by fire-arms as a result of business rivalry and there was no material to find that ultimately considerable number of members of society would be affected. 10. Reference has then been made to one more decision of the Apex Court in the case of Abdul Razak Nanackhan Pathan v. Police Commissioner, Ahmedabad and others reported in 1990 (2) G.L.H. 137. In that case reference was made to one case of 1985 registered in Kagdapith Police Station for the offence punishable u/Ss. 324, 504, 114 of the IPC, two cases were registered in Maninagar Police Station in the year 1986 u/Ss. 336, 337, 114 of the IPC and 307 and other provisions of the Indian Penal Code read with the relevant provisions of the Arms Act and Explosive Act and one case of 1987 was registered in Kagdapith Police Station u/s. 135(1) of the Bombay Police Act. All these cases have been found to be stale cases and out of them two were compounded and one was not proved and conviction was recorded only in the case under the Bombay Police Act, which was not one, which could be relied upon u/S. 3 of the PASA Act. The 3 cases of 1988 were under investigation. Reference has inter-alia been made to some of the earlier cases which have also been referred to in Gulab Mehra's case (supra). Following observations from Dr. Ram Manohar Lohia v. State of Bihar and ors. reported in 1966(1) SCR 709 quoted in Abdul Razak's case have been read before this Court :- "It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. But using the expressions "maintenance of law and order" the District magistrate was widening his own field of action and was adding a clause to the Defence of India Rules." 11. The above observations indeed indicate some solution to the process of reaching to the conclusion whether a particular activity would disturb law and order or would affect public order or would affect security of State. In the ultimate analysis, facts of the case in hand would have to be looked into for finding out whether they would fall in which of the circles. A reference has also been made to the earlier decision in Pushkar Mukharjee v. State of West Bengal reported in 1969(2) SCR 635. It has been observed from the said decision that the contravention of any law always affects the order, but before it can be said to affect public order, it must affect the community or public at large. A line of demarcation has to be drawn from the serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. Applying the tests which have been set out in these decisions, it can hardly be said that the facts of the present case could be said to adversely affect only law and order and not the public order. Following observations noted from the case of Ashok Kumar v. Delhi Administration reported in 1982(2) SCC 403 would indicate how the present matter is required to be dealt with :- "16. . . . . . . . The armed hold up gangsters in an exclusive residential areas of the city where persons are deprived of their belongings at the point of knife or revolver reveal organised crime. The particular acts enumerated in