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PETITIONER:

AMANULLA KHAN KUDEATALLA KHAN PATHAN

Vs.

RESPONDENT:

STATE OF GUJARAT & ORS.

DATE OF JUDGMENT: 28/06/1999

BENCH:

D.P.Wadwa, G.B.Pattanaik

JUDGMENT:

PATTANAIK,J.

Leave granted.

The detenu, who has been detained by the detaining

authority under Section 3(2) of the Gujarat Prevention of

Anti-Social Activities Act, 1985 ( for short PASA)

approached the Gujarat High Court for quashing the order of

detention dated 13.8.98 in Special Civil Application No.

6896 of 1998. The said application was dismissed by the

High Court by its Judgment dated 5.4.99 and the aforesaid

order has been assailed in the Special Leave Petition in

this court. The detenu has also filed an independent writ

petition under Article 32, challenging his detention under

several grounds. Both, the Special Leave Petition and the

Writ Petition having been heard together are being disposed

of by this common Judgment.

The detaining authority on being satisfied from the

activities of the detenu that he belongs to a notorious gang

and the members of the gang hatched conspiracy to extort

money from the people who are engaged in building

construction business in the city by putting the people

under threat of fear of death, was satisfied that the detenu

is a dangerous person within the meaning of Section 2[c]

of the Act and the activities of the detenu and his gang

members were such that for maintenance of public order it

was necessary to detain the detenu and accordingly the order

of detention against the detenu was passed. Immediately

after the order of detention was passed, the detenu

approached the Gujarat High Court as already stated inter

alia on the ground that the single activity of the detenu

for which CR No. 36/97 under Sections 120-B, 387 and 506(2)

IPC had been registered is not sufficient to hold him to be

a dangerous person within the meaning of Section 2[c] of

the Act and as such the order of detention is vitiated. By

the impugned Judgment, the High Court came to the conclusion

that the satisfaction of the detaining authority was not

based solely on the incident culminating in registration of

the criminal case under Sections 120-B, 387 and 506(2) of

the Indian Penal Code but also the incidents that happened

on 26.7.98 and 2.8.98 about which the two witnesses have

stated before the detaining authority and therefore, the

satisfaction of the detaining authority, holding the detenu

to be a dangerous person cannot be said to be vitiated.

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Mr. Anil Kumar Nauriya, the learned counsel appearing

for the detenu in this court reiterated the same contention

namely that a single incident in which the detenu is alleged

to be involved and for which the criminal case had been

registered will not be sufficient to hold the detenu to be a

dangerous person under Section 2[c] of the Act inasmuch as

the expression dangerous person has been defined to be a

person who either by himself or as a member or leader of a

gang, during a period of three successive years, habitually

commits, or attempts to commit or abets the commission of

any of the offences punishable under Chapter XVII of the

Indian Penal Code or any of the offences punishable under

Chapter V of the Arms Act, 1959. In other words according

to the learned counsel unless the activities of the detenu

considered by the detaining authority indicate that he has

either habitually committed or attempted to commit or abet

the commission of offence, cannot be held to be a dangerous

person under Section 2[c] of the Act. The expression

habitually would obviously mean repeatedly or

persistently. It supplies the threat of continuity of the

activities and, therefore, as urged by the learned counsel

for the petitioner an isolated act would not justify an

inference of habitually commission of the activity. In this

view of the matter the question that requires adjudication

is whether the satisfaction of the detaining authority in

the present case is based upon the isolated incident for

which the criminal case was registered or there are

incidents more than one which indicate a repeated and

persistent activity of the detenu. If the grounds of

detention is examined from the aforesaid stand point, it is

crystal clear that apart from the criminal case which had

been registered against the detenu for having formed a gang

and hatched a conspiracy to extort money from the innocent

citizens by threatening them and keeping them under constant

fear of death, the two witnesses examined by the detaining

authority narrated the incident that happened on 26.7.98 and

2.8.98 in which the detenu was involved and on the first

occasion a sum of Rs. 1 lac was demanded and when the

person concerned refused, he was dragged and assaulted and

on the second occasion a sum of Rs. 50 thousand was

demanded and on refusal, the persons were dragged on the

road and were beaten on the public road. It is not the

grievance of the detenu that the statements of the aforesaid

two witnesses had not been appended to the grounds of

detention or had not been mentioned in the grounds of

detention. In fact the grounds of detention clearly mention

the aforesaid state of affairs and there is no bar for

taking these incidents into consideration for the

satisfaction of the detaining authority that whether the

person is a dangerous person within the ambit of Section

2[c] of the Act. We, therefore, fail to appreciate the

first contention raised by the learned counsel for the

petitioner that the satisfaction of the detaining authority

that the detenu is a dangerous person is based upon the

solitary incidence in respect of which a criminal case has

already been registered. In our considered opinion the

detaining authority has considered the three different

incidents happened on three different dates and not a

solitary incidence and, therefore, the test of repeated-ness

or continuity of the activity is fully satisfied and the

satisfaction of the detaining authority holding the detenu

to be a dangerous person is not vitiated in any manner.

The contention of the learned counsel for the petitioner

therefore stands rejected.

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Mr. Anil Kumar, the learned counsel then urged that

even if the activities of the detenu were sufficient to hold

him to be a dangerous person yet an order of detention can

be passed under the Gujarat Act only with a view to prevent

the detenu from acting in any manner prejudicial to the

maintenance of the public order. By virtue of provisions

contained in Sub-section (4) of Section 3 of the Act a

person shall be deemed to be acting in any manner

prejudicial to the maintenance of public order when such

person is engaged in or is making preparation for engaging

in any activities, whether as a bootlegger or dangerous

person or drug offender or immoral traffic offender or

property grabber, which affect adversely or are likely to

affect adversely the maintenance of public order. Thus

maintenance of public order is sine qua non for passing an

order of detention under Section 3 of the Gujarat Act. But

in the case in hand the alleged activities of the detenu are

all in relation to violation of the normal criminal law and

it has got no connection with the maintenance of public

order and, therefore, the order of detention is vitiated.

We are unable to appreciate this contention of the learned

counsel for the detenu inasmuch as even an activity

violating an ordinary legal provision may in a given case be

a matter of public order. It is the magnitude of the

activities and its effect on the even tempo of life of the

society at large or with a section of society that

determines whether the activities can be said to be

prejudicial to the maintenance of public order or not. In

Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commisioner

of Police and Ors. 1995(3) SCC 237, it has been held by

this court that in order to bring the activities of a person

within the expression of acting in any manner prejudicial

to the maintenance of public order, the fall out and the

extent and reach of the alleged activities must be of such a

nature that they travel beyond the capacity of the ordinary

law to deal with him or to prevent his subversive activities

affecting the community at large or a large section of

society. It is the degree of disturbance and its impact

upon the even tempo of life of the society or the people of

a locality which determines whether the disturbance caused

by such activity amounts only to a breach of law and order

or it amounts to breach of public order. Applying the

ratio of the aforesaid decision to the facts of the present

case we find that the activities of the detenu by trying to

extort money from ordinary citizens by putting them to fear

of death and on their refusal to part with the money to drag

them and torture them on public road undoubtedly affected

the even tempo of life of the society and, therefore such

activities cannot be said to be a mere disturbance of law

and order. In our considered opinion the activities of the

detenu are such that the detaining authority was satisfied

that such activities amount to disturbance of public order

and to prevent such disturbance the order of detention was

passed. We, therefore, do not find any substance in the

second contention of the learned counsel for the detenu.

Mr. Anil Kumar then urged that the Advisory Board having

not indicated that the detenu is to be detained for more

than three months, has failed to discharge its

constitutional obligation and there has been an infringement

of Article 22(5) of the Constitution and in support of the

same reliance has been placed on the decision of this court

in A.K. Gopalan vs. The State of Madras, 1950 SCR 88 and

the decision of this Court in John Martin vs. The State of

West Bengal, 1975(3) SCR 211. At the outset it may be

stated that the detenu had not made any such grievance in

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the writ petition that had been filed in the Gujarat High

Court. That apart, the opinion of the Advisory Board to the

State Government, rejecting the representation of the detenu

and expressing its opinion with regard to the existence of

sufficient cause for the detention of the detenu is not a

part of the record and what is pressed into service by the

learned counsel in support of his argument is the mere

communication from the Section Officer of the Home

Department dated 27th August, 1998, intimating the factum of

the rejection of representation by the Advisory Board.

Section 11 of the Act is the procedure for making reference

to the Advisory Board and Section 12 provides the duties and

obligation of the Advisory Board on the basis of materials

placed before it. Under Sub-section (2) of Section 12 it is

the requirement of law that the report of the Advisory Board

shall specify in a separate part thereof the opinion of the

Advisory Board as to whether or not there is sufficient

cause for the detention of the detenu and this opinion of

the Advisory Board has been furnished in the present case.

We really fail to understand how a contention could be

raised that the Advisory Board has failed to discharge its

obligation and how the court would be entitled to examine

the same without even the copy of the report of the Advisory

Board being formed a part of the records of the present

proceedings. In view of the counter affidavit filed in the

present case that all the provisions have been duly complied

with and in the absence of any material to support the

arguments advanced by the learned counsel, we do not find

any force in the contention raised alleging any infraction

of provision of law in the opinion given by the Advisory

Board and the said Board in rejecting the representation of

the detenu. This contention therefore, is devoid of force.

The next contention raised by the learned counsel for

the detenu is that even though the representation was made

to the Advisory Board yet the detaining authority were also

duty bound to consider the same as the detaining authority

also could have revoked the order of detention and non-

consideration of the representation by the detaining

authority constitute an infraction of Article 22(5) of the

Constitution and in support of this contention reliance has

been placed on the decision of this Court in 1995(4) SCC 51

Kamleshkumar Ishwardas Patel etc. etc. vs. Union of India

& Ors. etc. etc. This contention to us appears to be

based upon a mis-conception of the relevant provisions of

the Act. Admittedly, the representation in question was

made to the Advisory Board and not to the detaining

authority. If a representation is made by the detenu to the

authorised officer for revoking or modifying the detention

order then it would be certainly his constitutional

obligation to consider the same and pass appropriate orders

thereon and non-consideration would tantamount to violation

of Constitutional rights to a detenu under Article 22(5).

But if a representation is made to a specified authority and

that specified authority in the given case is the State

Government and the Advisory Board considers the same and

disposes it of, then at that stage the question of the

detaining authority considering the said representation even

though not addressed to it does not arise. If the Gujarat

Prevention of Anti-Social Activities Act, 1985 is analysed

it would appear that the legislature has circumscribed the

powers of the detaining authority by providing that an order

of detention would lapse after 12 days from the passing of

the order unless the State Government has within the said

period endorsed and ratified the same. Therefore within the

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aforesaid period of 12 days, the detaining authority has the

power to revocation which he can exercise before the State

Government ratifies the same. But once the State Government

approves the order of detention then on the same set of

circumstances the detaining authority cannot revoke an order

of detention. Though if subsequent circumstances change,

the detaining authority may have the power of revocation in

view of the provisions of the General Clauses Act. But when

no representation is made to the detaining authority after

the order of detention passed by him is approved by the

State Government indicating new set of circumstances

requiring the detaining authority to consider his

representation, and on the other hand the representation is

addressed to the Advisory Board, we see no requirement of

law for that representation being also to be disposed of by

the detaining authority and such non-disposal would amount

to violation of the Constitutional right of the detenu under

Article 22(5) of the Constitution. This contention of the

learned counsel for the petitioner is devoid of force. That

apart, the detenu never raised this question before the High

Court making any such allegation. Another ground was raised

by the learned counsel in this court to the effect that the

grounds of detention no doubt indicated that the activities

are such that it cannot be dealt with by Bombay Police Act

but no reasons have been given and therefore, it is mere

ipse dixit of the detaining authority and on that score the

order of detention is vitiated. We are also unable to

accept this contention. The satisfaction of the detaining

authority on consideration of the activities of the detenu

and on forming an opinion that the activities are such which

affects the maintenance of public order and as such it is

necessary to put the detenu under detention cannot be

interfered with by the court of law on mere assertion of the

detenu. It is not required to be stated in the grounds of

detention as to why the detaining authority has formed the

opinion that the activities in question cannot be adequately

dealt with under the provisions of Bombay Police Act. We

see no infirmity with the order of detention or with the

satisfaction arrived at by the detaining authority,

requiring the detenu to be detained under the Act on that

score. We, therefore, have no hesitation to reject the said

submission of the learned counsel for the petitioner. In

the aforesaid premises all the contentions raised having

failed, the Criminal Appeal by grant of Special leave

arising out of the Judgment of Gujarat High Court as well as

the Writ Petition filed under Article 32 of the

Constitution, fail and are dismissed.