SCA/21309/2005 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21309 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.MEHTA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ============================================================== PRAMOD BHAGWAN NAYAK - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ============================================================== Appearance : MR. AMRISH PANDYA for MS. KRISHNA U MISHRA for Petitioner(s) : 1, Mr. L.R. PUJARI, AGP, for Respondents Ms. Banna Datta, advocate, appears as Amicus Curiae ================================================================== CORAM : HONOURABLE MR.JUSTICE K.M.MEHTA Date : 21/02/2006 ORAL JUDGMENT Pramod Bhagwan Nayak, petitioner, original detenu, has filed this habeas corpus petition challenging SCA/21309/2005 2 JUDGMENT the order dated 23.8.2005 passed by the Police Commissioner, Surat City, Surat, respondent No. 2 herein. The petition was filed before this Court on 13.10.2005. When the matter was placed for hearing on 21.10.2005 this Court has issued rule. On behalf of the respondents Mr. L.R. Pujari, learned AGP, appears. With the consent of the parties the matter is taken up for final disposal. 2. Mr. Amrish Pandya, learned advocate, appears on behalf of Ms. Krishna U. Mishra, learned advocate for the petitioner. He has invited my attention to the order of detention dated 23.8.2005 in which the authority has passed order under the provisions of Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “the PASA Act”). He has also invited my attention to the order of committal dated 23.10.2005 whereby the petitioner has been sent to Rajkot jail. 3. The learned advocate has also invited my attention to the grounds of detention supplied to the petitioner by the authority. The grounds of detention reveal that the authority has recorded statements of witnesses on 20.5.2005 as well as 12.6.2005 and other SCA/21309/2005 3 JUDGMENT material shown in the note and from the grounds it is alleged that the activities carried on by the detenu fall within “immoral traffic” as defined in Section 2(g) of the PASA Act. The grounds of detention further reveal that the detenu is an immoral traffic offender. He is carrying on such activity by taking on rent Flats at Belgiam Square, Japan Market, opp. Linear Bus Stand, Surat. The petitioner is engaged in the activity of immoral traffic by bringing girls and women from other cities to Surat and by supplying them to various customers in consideration of money and also providing rooms for the said purpose, he was running the business of prostitution and also earning his livelihood from the said income. It is also alleged in the grounds of detention that he is giving threats to the people who are coming on his way in such anti-social activities and also beating them in public and therefore are not coming forward to file any complaint against the detenu in public. Thus it has been alleged that the activities are directly causing or are likely to cause harm, danger to life, property and public health. It has been further alleged in the ground that immoral trafficking is resulting in spreading sexual disease including dangerous diseases like H.I.V. Aids etc., and there is no need of SCA/21309/2005 4 JUDGMENT any documentary evidence to prove that such activity is dangerous to public health particularly when there is sufficient material on record of the case to show that the detenu was involved in the anti-social activities of running brothel or involved in the offences of immoral trafficking. It was further stated in the ground of detention that with a view to immediately prevent him from continuing his such illegal activities in any manner prejudicial to the maintenance of public order and public health, after subjectively satisfying that such activities of the detenu cannot be curbed or prevented immediately by resorting to any other provisions of general law which would have been a time consuming process, as a preventive measure, the authority has passed order of detention against detenu under the PASA Act. This order was passed with a view to immediately prevent him from continuing such illegal and anti-social activities which are prejudicial to the maintenance of public order. The authority has passed the said order with full application of mind and in compliance and in consonance with the provisions of the PASA Act. It was further stated that all the relevant materials and vital documents which have a bearing on the aspect of the matter and which were available have been placed before SCA/21309/2005 5 JUDGMENT the authority. It was stated that copies of all the documents which have been considered and relied upon by the authority for passing the order of detention against the detenu have been supplied to the detenu along with the grounds of detention. It may be noted that in the grounds of detention the authority has relied on two statements of witnesses. The first statement was recorded on 9.7.2005 which was verified on 22.8.2005 and the second statement was recorded on 10.7.2005 which was verified on 22.8.2005. 4. The learned advocate for the petitioner has assailed the impugned order of detention on various grounds. He has stated that the grounds of detention reveal that the authority has alleged that the petitioner has committed an offence in the jurisdiction of Mahidharpura Police Station being II C.R. No. 390 of 2005 on 19.6.2005 under Sections 3, 4, 5 and 7 of the Prevention of Immoral Traffic Act and the petitioner was arrested on that day and cash of Rs. 2,660/-, 4 mobile phones, condoms 14 total valuing Rs. 13,660/- have been recovered from him. It is also alleged that the petitioner was released on bail on 22.6.2005 and the case is still pending. SCA/21309/2005 6 JUDGMENT 5. The learned advocate has submitted that the order of detention is bad in law on the ground that the detaining authority has considered solitary offence which came to be registered against the petitioner which is not covered within the definition of Section 2(g) of the PASA Act. He has further stated that in any view of the matter, the activity alleged against the detenu can at the most be said to be the disturbance to law and order situation and not public order. In support of the aforesaid submissions, the learned counsel has relied on the provisions of PASA Act. Section 2(g) of the PASA Act provides that “immoral traffic offender” which means a person who habitually commits or abets the commission of any offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956 (104 of 1956). The learned advocate has heavily relied on the said definition particularly the word “habitual” in this regard. According to the learned advocate the word “habitually” means constant or continuous act. In support of the same, the learned counsel has relied on the judgement of the Hon'ble Supreme Court in the case of MUSTAKMIYA JABBARMIYA SHAIKH VS. M.M. MEHTA, COMMISSIONER OF POLICE & ORS. Reported in 1995(2) G.L.R. 1268 particularly SCA/21309/2005 7 JUDGMENT paragraph 8 of the said judgement where the Hon'ble Supreme Court has interpreted the word “habitually” as follows: “The Act has defined “dangerous person” in clause [c] of Sec. 2 to mean 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 Penal Code or any of the offences punishable under Chapter V of the Arms Act. The expression “habit” or “habitual” has, however, not been defined under the Act. According to The Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), p. 44, “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 meaning is assigned to the words “habit” in Aiyar's Judicial Dictionary, 10th Edn., p. 485. It does not refer to the SCA/21309/2005 8 JUDGMENT frequency of the occasions but to the invariability of practice and the 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 a “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. It, therefore, necessarily follows, that in order to bring a person within the expression “dangerous person” as defined in clause © of Sec. 2 of the Act, there should be positive material to indicate that such person is habitually committing or attempting to commit or abetting the commission of offences which are punishable under Chapter XVI or Chapter XVII of I.P.C. Or under Chapter V of the Arms Act and that a single or isolated act falling under Chapter XVI or Chapter XVII of I.P.C. Or Chapter V of the Arms Act cannot be characterised as a habitual act referred to in Sec. 2(c) of the Act.” SCA/21309/2005 9 JUDGMENT 6. It may be noted that relying upon the said judgement, the learned counsel submitted that the expression “habitually” means “repeatedly” or “persistently” and observed that it implies a thread of continuity stringing together similar repetitive acts but not isolated, individual and dissimilar acts. 7. As regards “public order”, the learned counsel has relied on the judgement of the Hon'ble Supreme Court in the case of PIYUSH KANTILAL MEHTA VS. COMMISSIONER OF POLICE reported in 1989(1) GLR 563)(SC) and also Division Bench judgement of this Court in the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI VS. POLICE COMMISSIONER SURAT & ORS., reported in 2000(1) GLH 393. The contention of the learned advocate is that even activities of the petitioner amounts to violation of law and order situation but not public order. In support of the same, two decisions have been cited. 8. The second submission of the learned advocate is that the offence came to be registered against the petitioner on 19.6.2005 and the order of detention was passed on 23.8.2005. Thus there is a delay of two months SCA/21309/2005 10 JUDGMENT in passing the order and therefore the order of detention is bad in law. The learned counsel has relied on the judgement of the Hon'ble Supreme Court in the case of T.A. ABDUL RAHMAN VS. STATE OF KERALA reported in AIR 1990 SC 225 and also the decision in the case of ANAND PRAKASH VS. STATE OF U.P., reported in AIR 1990 SC 516 in support of the same. The learned counsel has also relied on the decision of the Hon'ble Supreme Court in the case of PRADEEP NILKANTH PATURKAR reported in AIR 1994 SC 656 and ELESH NADULAL PATEL reported in 1997(1) GLH 381 and THAKOR GIRISHJI reported in 2002(1) GCD 338. 9. The next contention of the learned advocate for the petitioner is that the statement of two anonymous witnesses were recorded by the sponsoring authority on 9.7.2005 and 10.7.2005 which came to be verified by the detaining authority on 22.8.2005 and on the very next day i.e. on 23.8.2005 the order of detention came to be passed which shows the mechanical exercise of power on the part of the detaining authority. The learned advocate therefore submitted that the privilege claimed by the detaining authority under Section 9(2) of the PASA Act is not genuine and proper. In support of the above submission, the learned advocate has relied on the SCA/21309/2005 11 JUDGMENT decision in the case of KALIDAS KAHAR reported in 1993(2) GLR 1659 and also the decision in the case of RANU BHIKABHAI BHARWAD reported in 2000(3) GLR 2696 particularly paragraph 6 of the said judgement. 10. The learned counsel has submitted that there is no contemporaneous material before the detaining authority and the authority has not verified about the character, antecedents and criminal background of the petitioner. The detaining authority has relied on the statements of the anonymous witnesses and thus the privilege claimed by the detaining authority by withholding the names and addresses of the witnesses under Section 9(2) of the Act is not genuine and proper. In support of the same, the learned advocate has relied on the judgement in the case of KAJALBEN SINDHI reported in 2000(1) GLH 320, KISHORE NAGIN PARMAR reported in 2000(4) GLR 3236 particularly paragraph 14 of the said judgement and KALIYO ALIAS NOOR MOHAMMAD reported in 1997(1) GLH 1017. 11. On the other hand, Mr. Pujari, learned AGP, appears on behalf of the respondents. It may be noted that this being an important matter and relating to SCA/21309/2005 12 JUDGMENT Immoral Traffic (Prevention) Act, 1956, this Court has requested Ms. Banna Datta to appear as amicus curie to assist this Court as this matter raises important question on interpretation of the provisions of the PASA Act along with the provisions of the Immoral Traffic (Prevention) Act, 1956. The learned AGP has first of all invited my attention to the provisions of the PASA Act particularly the object of the Act which provides an Act to provide for preventive detention of boot-leggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order. He has relied on Section 2(c) of the PASA Act which provides “dangerous person”. Section 2(g) of the PASA Act provides “immoral traffic offender” which I have quoted earlier. Section 3 of the PASA Act provides power of the State Government to pass order of detention against certain persons. Section 6 of the PASA Act provides grounds of detention severable. Section 9 of the PASA Act provides grounds of order of detention to be disclosed to detenu. 12. The learned AGP has also relied on Article 23 of the Constitution of India which provides prohibition SCA/21309/2005 13 JUDGMENT of traffic in human beings and forced labour. “(1) Traffic in human beings ad beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.” 13. The learned AGP has stated that in view of provisions of Article 23 of the Constitution The Immoral Traffic (Prevention) Act, 1956, an Act to provide in pursuance of the International Convention signed at New York on 9.5.1950 was enacted. Section 2 of the said Act provides definitions which are important. Section 2(a) of the said Act defines “brothel”. Section 2(f) defines “prostitution” means the sexual exploitation or abuse of persons for commercial purpose and the expression SCA/21309/2005 14 JUDGMENT “prostitute” shall be construed accordingly. Section 2(g) provides “protective home”. Section 2(h) provides “public place”. Section 3 provides punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the said Act provides punishment for living on the earning of prostitution. Section 5 of the said Act provides procuring, inducing or taking person for the sake of prostitution. Section 6 of the said Act provides detaining a person in premises where prostitution is carried on. Section 7 of the Act provides prostitution in or in the vicinity of public places. Section 8 of the Act providing seducing or soliciting for purpose of prostitution. Section 9 of the Act provides seduction of a person in custody. Section 18 of the Act provides closure of brothels and eviction of offenders from the premises. Section 19 of the Act provides application for being kept in a protective home or provided care and protection by Court. Section 20 provides removal of prostitute from any place. 14. The learned AGP therefore submitted that the authority after taking into consideration this Act and with a view to prevent the activity, the petitioner has been detained under the provision of the PASA Act. The SCA/21309/2005 15 JUDGMENT authority has exercised the power conferred under PASA Act in passing the order. In support of the same, he has relied on the grounds of detention. The learned AGP has stated that it is not true that the authority has referred to only one evidence. If one reads the grounds of detention the authority has relied on the facts of Criminal Case No. 390 of 2005 and then it is alleged that the petitioner is carrying on anti-social activity and therefore he was a dangerous person carrying on immoral traffic act. The authority has also relied on the statement on 20.5.2005 by which it is alleged that the petitioner is carrying on the activity of immoral traffic and given various details. The authority has relied on another statement recorded on 12.6.2006 and thereafter it is alleged that the petitioner is carrying on activity of commission of offence under the provisions of suppression of immoral traffic in Women and Girls Act, 1956. The learned advocate further submitted that the grounds of detention has to be seen not in isolation of facts but in totality of the circumstances. The Court must consider not only the statement recorded but the statement of various women involved in the offence which is alleged against the petitioner. He has stated that along with the grounds the authority has also supplied the statement SCA/21309/2005 16 JUDGMENT recorded by two persons which has been referred in the grounds and also statement of Minaxiben @ Dipuben Rathod. In the said statement she has categorically stated that the petitioner is involved in carrying on the activity of immoral traffic act. The said statement of Minaxiben was recorded on 19.6.2005 which categorically states the activities carried on by the petitioner. On 20.6.2006 a further statement of Minaxiben @ Dipuben Rathod was recorded in which it is stated that the petitioner is carrying on business in immoral traffic act. Statements of Champaben w/o. Kalubhai Motibhai were also recorded on 19.6.2005 and 20.6.2005 which reveal that the petitioner is carrying on the business of prostitution. 15. The learned AGP has relied on the affidavit of Mr. Sudhir Sinha, the Commissioner of Police for the City of Surat. The said affidavit which is affirmed on 8.12.2005 in which it has been stated that the authority on receipt of the proposal along with the materials from the sponsoring authority for detention of the detenu, the authority examined and considered all those materials and also personally verified the genuineness, correctness and veracity of the incidents narrated in the statements of witnesses in the unregistered offences by calling the SCA/21309/2005 17 JUDGMENT said witnesses to the office. Thereafter the authority found that the said facts to be genuine and believable. It was further stated that on the basis of the said materials, the authority formulated the grounds of detention and all those grounds are true, correct, clear and proper. The authority has accordingly examined the documents relating to one case registered against the detenu and from those materials and from the statements of witnesses, it is clear that the detenu falls within the definition of “immoral traffic offender” as defined under Section 2(g) of the PASA Act. After examining the material on record the authority come to the conclusion that the detenu is an “immoral traffic offender” and by taking on rent of premises situated at 4th floor flat, Belgiam Square, Japan Market, Opp. Linear bus stand, Surat, by bringing young girls and women from other cities to Surat City and by supplying them to various customers in consideration of money and also providing rooms for the said purpose, the petitioner was running the business of prostitution and also earning his livelihood from the said income. It is also alleged that the petitioner is also giving threats to the people who are coming in his way in such anti-social activities and also beating them in public and therefore the people are SCA/21309/2005 18 JUDGMENT not coming forward to file any complaint against the detenu in public. Therefore, his activities are directly or even indirectly causing and are likely to cause harm, danger to life, property and health. It was further stated that the immoral trafficking is resulting in spreading of sexual diseases including dangerous disease like HIV Aids etc. There is no need of any documentary evidence to prove as such activity is dangerous to public health particularly when there is sufficient material on the record of the case to show that the detenu was involved in the anti-social activities of running brothel or involved in the offences of immoral trafficking. In view of the same, the authority has passed the order of detention under the provisions of the PASA Act with a view to prevent him from continuing his such illegal activities which are prejudicial to the maintenance of public order and public health and in compliance and in consonance with the provisions of the PASA Act as well as the Constitution of India and the said order is legal, valid and proper. The authority has further stated that all the relevant materials and vital documents which have a bearing on the aspect of the matter and which were available have been placed before the authority and copies of all those documents which SCA/21309/2005 19 JUDGMENT have been considered and relied on by the authority for passing the order of detention against the detenu have been supplied to the detenu along with the grounds of detention. Therefore, the contention raised by the detenu is not tenable at law. 16. It was further stated in the affidavit that all relevant and vital documents which have bearing on the aspect of the matter were placed before the authority and copies of all those documents which have been referred to and relied on by the authority for passing the order of detention have been supplied to the detenu along with the grounds of detention. It was further stated that the documents supplied to the detenu are certified true copies of the originals. It was further submitted that after careful scrutinizing and considering the materials placed before the authority and on personally verifying the genuineness, correctness and veracity of the incidents narrated in the statements of witnesses in the unregistered offences by calling the said witnesses to the office of the authority personally and after satisfying the authority that the fear expressed and the apprehension made by them is found to be quite real, proper, genuine and reasonable and after applying the SCA/21309/2005 20 JUDGMENT authority's mind to the facts of the case, the authority was subjectively satisfied that if the names and addresses and other particulars of the witnesses are disclosed to the detenu, their lives and properties will be in danger, and therefore the privilege under Section 9(2) of the PASA Act is claimed. It was stated that the witnesses were not ready and willing to come forward to register any complaint against the detenu because of fear and apprehension of insecurity to the lives and properties of the witnesses and their family members. It was therefore stated that the claim of privilege for not disclosing the identity of the witnesses to the detenu is genuine and claimed with bona fide exercise of power and there is no violation of the fundamental rights of the detenu guaranteed under Article 22(5) of the Constitution of India. 17. The authority, therefore, submitted that the witnesses have requested the