SCA/9070/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9070 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== RAJU S/O RAMET GUPTA Versus STATE OF GUJARAT AND OTHERS ====================================== Appearance : MS KRISHNA U MISHRA for Petitioner. MR DIPEN DESAI, AGP for Respondents.. ====================================== CORAM : HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 28/06/2007 ORAL JUDGMENT 1) The petitioner-detenue has approached this Court under Article 226 of the Constitution for a writ of habeas corpus or any other direction to set aside the order dated 19-10-2006 of his detention under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985 SCA/9070/2007 2/4 JUDGMENT (for short “PASA”). According to the impugned order of the Police Commissioner of Ahmedabad City, the petitioner is of cruel nature and always holding deadly weapons and in complicity with his colleagues indulging in anti social activity of committing theft of two wheelers and thereby spreading feeling of insecurity in public. That, three offences of theft punishable under Section 379 of the Indian Penal Code, 1860 have been registered vide I-CR No.451/2006 dated 15-6-2006, I-CR No.461/2006 dated 19-6-2006 and I-CR No.260/2006 dated 20-6-2006. He is stated to have been arrested pursuant to those alleged offences on 24th and 25th June, 2006. Conclusion of the petitioner being a “dangerous person” is drawn also on the basis of statements of two witnesses, whose identities were not disclosed. Thus, after recording the subjective satisfaction about the petitioner being a “dangerous person” and with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, the impugned order was made and grounds thereof were supplied to the petitioner. 2) Learned counsel, Ms.Banna Dutta, appearing for the petitioner pointed out from the material on record that the statements of two witnesses, whose identity was not disclosed, did not inspire any confidence insofar as the material part thereof was couched in identical terms in both the statements recorded by the police commissioner. She further submitted that the petitioner, aged around 37, was not even alleged to have any earlier criminal record and, even assuming his involvement in three offences registered against him, they were stray incidents of theft and, at the worst, infraction of law and order. She further submitted that the petitioner did not fall within the definition of “dangerous person” under Section 2 (c) of the PASA since he cannot be said to have habitually committed any offence contemplated by the definition and he cannot be deemed to be acting in any manner which SCA/9070/2007 3/4 JUDGMENT could be deemed to be likely to adversely affect the maintenance of public order. 3) Learned AGP vehemently argued that the impugned order and the grounds stated therein were precise and the order based on subjective satisfaction of the authorized officer ought not to be set aside on a different interpretation of the material on record. He submitted that the incidents of theft of three motor cycles in quick succession were likely to cause feeling of insecurity among the general public or at least a section thereof. Under such circumstances, the impugned order of detention was not only perfectly legal but justified according to the submission. 4) As observed by the Supreme Court in M.J.Shaikh Vs. M.M.Mehta [1995 (2) GLR 1268], “habitually” means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. The word 'habitually' means usually and generally. Almost similar to that meaning given in the Law Lexicon by R.Ramnath Aiyar is assigned to the word 'habit' in Aiyar's Judicial Dictionary. It does not refer to frequency of the occasions but to invariability of practice and habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is “dangerous person” unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal. In Vijay Narain Singh v. State of Bihar [1984 (3) SCC 14], the Supreme Court considered the expression “habitually” to mean 'repeatedly' or 'persistently' and observed that it implies a thread of continuity stringing together similar repetitive acts but not isolated, individual, and SCA/9070/2007 4/4 JUDGMENT dissimilar acts and that repeated, persistence and similar acts are necessary to justify an inference of habit. 5) On the other hand, it is settled by the Supreme Court in Commissioner of Police and Others v. C.Anita [(2004) 7 SCC 467] that stray and unorganized crimes of theft and assault are not matters of public order since they do not tend to affect the even flow of public life. Infractions of law are bound in some measure to lead to disorder but every infraction of law does not necessarily result in public disorder. 6) Applying the ratio of the above judgments in the facts of the present case, it would appear that three incidents of theft of motor cycles and registration of offences punishable under Sections 379 and 114 of the Indian Penal Code in quick succession were stray and unorganized crimes of theft and coupled with alleged assault, even if the allegations of the offences and allegation made in the statements of the undisclosed witnesses were accepted as gospel truth. But they were not matters of public order since they did not and they cannot tend to affect the even flow of public order as held by the Supreme Court in Commissioner of Police and Others v. C.Anita (supra). In that view of the matter, the provisions of PASA made for preventive detention of dangerous persons for preventing anti social and dangerous activities prejudicial to the maintenance of public order could not have been pressed into service for detaining an accused person, who was already released on bail by a Court of law. Therefore, the petition is allowed, the impugned order is set aside and the petitioner is ordered to be released forthwith, if not required in any other case. Rule is made absolute with no order as to costs. (D.H.Waghela, J.) /malek