Supreme Court of India
AYUB @PAPPU KHAN NAWAB KHAN PATHANversusS.N. SINHA AND ANR.
- Citation
- 1990 INSC 239
- Decided
- 21 August 1990
- Disposal
- Appeal(s) allowed
- Bench
- A M AHMADI
Holding
A detention under the Gujarat Prevention of Anti-Social Activities Act is valid only if material shows the person habitually commits offences as defined; the petitioner did not, so the detention order is set aside.
Summary
The petitioner, Ayub, was detained under Section 3(1) of the Gujarat Prevention of Anti-Social Activities Act, 1985 on grounds that he was a "bootlegger" and a "dangerous person" involved in several offences. The petition challenged the detention, arguing that the detaining authority had not applied its mind and that there was no material to support the classifications. The Court examined the definitions of "bootlegger" (Section 2(b)) and "dangerous person" (Section 2(c)), emphasizing that "dangerous person" requires a habitual pattern of committing offences. It found that the petitioner was acquitted in two cases, the third case was pending with no injury proved, and he was not linked to any prohibition‑act offences, thus failing the habitual requirement. Consequently, the Court held that the detention order lacked sufficient material and was invalid. The petition was allowed, releasing the detainee.
Issues considered
- Whether the petitioner falls within the definition of "dangerous person" under Section 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985.
- Whether the petitioner can be classified as a "bootlegger" under Section 2(b) of the same Act.
- Whether the detaining authority applied its mind and considered adequate material before issuing the detention order under Section 3(1).
- Whether the detention order is valid in the absence of evidence of habitual commission of offences.
Legislation cited
- Arms Act, 1959s. Chapter V
- Bombay Police Act, 1951s. 59(1)
- Bombay Prohibition Act, 1949
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 2(b), s. 2(c), s. 3(1)
- Indian Penal Code, 1860s. Chapter XVI, s. Chapter XVII, s. Chapter XXII
Subjects
detentiondangerous personhabitual offenderbootleggerGujarat Prevention of Anti-Social Activities ActSection 2(c)Section 3(1)non‑application of mindpublic order
Judgment
/
AYUB @PAPPU KHAN NAWAB KHAN PATHAN
A
v.
) S.N. SINHA AND ANR.
AUGUST 21, 1990
[A.M. AHMADI, M.M. PUNCHHI AND K. JAYACHANDRA B
REDDY, JJ.]
Gujarat Prevention of Anti-Social Activities Act, 1985: Sections
,~ - 2(c) and 3( 1)-"Dangerous person"-Habitually committing offences
-What is-Not such a person-Detained-Detention order-Validity of
Words and Phrases: 'Habitually'-Meaning of
c
The Petitioner was detained nuder section 3(1) of the Gujarat
y Prevention of Anti-Social Activities Act, 1985. The gounds were served
within time and referred to 3 crimes registered in various police
stations, on the allegation that the petitioner and his associates armed D
with deadly weapons committed offences punishable under sections
307, 451, 143, 147 and 148 IPC, and section 25(1) of the Arms Act. The
grounds also referred to 8 crimes under the provisions of the Prohibi-
tion Act where he was described as a bootlegger. Earlier detention
under the Act and release by the High Court were also mentioned. It
'/ was specifically mentioned that in one of the three cases, the petitioner E
was remanded to judicial custody and since there were chances of his
being released, the detention was ordered to prevent him from acting
prejudicially to the maintainance of public order.
In this Writ Petition, the Petitioner has challenged the validity of
the detention order passed by the Commissioner of Police. F
i. It was contended on behalf of the petitioner that the detaining
· authority has not applied his mind inasmuch as relevant material has
not been taken into account and there were absolutely no grounds
warranting detention.
G
· This Court allowed the Petition on. 7.8.1990 for reasons to be
given later.
Giving reasons for allowing the Writ Petition,
HELD: I. A person is said to be a habitual criminal who by force H
927
928 SUPREME COURT REPORTS [1990] 3 S.C.R.
A of habit or inward disposition is accustomed to commit crimes. It
implies commission of such crimes repeatedly or persNently and prima facie - \
there should be a continuity in the commission of those offences. [931C-D]
Vijay Narain Singh v. State of Bihar and Ors., [1984] 3 SCC 14
and Rashidmiya @ Chhava Ahmedmiya Shaik v. Police Commissioner,
B Ahmedabad and Anr., [1989) 3 sec 321. relied on.
2. Unless there is material to show that the detenu committed any
one of the acts mentioned in the definition, he can not come within the
meaning of 'Bootlegger'. Though in the grounds there is a refernece to 8
crimes under the provisions of the Prohibition Act, the detenu, does not
figure in any one of these cases. There is no material whatsoever of his
C involvement in any manner in any of these prohibition cases. Therefore,
he can not be said to be a bootlegger. [930F-Gf
.,;
3. Admittedly, the detenu was acquitted in two of the three crimi-
nal cases against him. The third case, viz .. Crime No. 96 .90 was pend-
0 ing investigation and the detenu was granted bail. Thus, this is the only
case pending against him, and the main allegation was that he, out of
sudden excitement, fired the revolver and as a result of which one
Mehbub Khan received injury on bis leg and again he fired a shot into
the air and that he and his associates were moving around in a jeep
threatening the people in the area. But in the order passed by the \
E learned Sessions Judge on 13.3.90 while releasing the petitioner on bail,
it is noted that the said Mehbub Khan had no fire-arm injury atall and
as a matter of fact, the public prosecutor conceded the same. The
learned Sessions Judge has also noted that no medical evidence is pro-
duced to prove that any one was injured during the alleged occurrence.
If such is the only crime pendng in which the detenu is alleged to have
F · participated in, it can by no stretch of imagination be said that he comes
within the meaning of 'dangerous person' and the conclusions drawn by_..-;
the detaining authority are bereft of sufficient material as required
under Section 2(c) of the Act. This betrays non-application of mind by
the detaining authority. Consequently, the grounds on which the deten-
tion order is passed, are irrelevant and non-existing. [932B-E]
G
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
687 of 1990.
(Under Article 32 of the Constitution of India).
H B.K. Mehta, Ms. Shalini Soni and P.H. Parekh for the Petitioner.
AYUB v. S.N. SINHA [REDDY, J.] 929
D.A. Dave, A. Sachthey, C.B. Nath, B.K. Jad, Ashish Verma
and M.N. Shroff for the Respondents. A
)-
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. We allowed the Writ Petition
vide our Order dated 7 .8.90 and released the detenu for the reasons to B
be given later. We accordingly proceed to give the reasons.
! -· The petitioner was detained t'nder Section 3(1) of the Gujarat
Prevention of Anti Social Activities Act, 1985 ('Act' for short) by an
Order dated 13.3.90 passed by the Commissioner of Police, Ahmeda·
bad City. The grounds were served within time. The said order is
challenged in this Writ Petition. It is mainly contended that the detain- c
ing authority has not applied his mind in passing the detenion order
\../ inasmuch as the relevant material has not been taken into acc?unt at
the time of passing the order. Even otherwise, according to the
learned counsel, there are absolutely no grounds which warrant deten-
tion. It is also further submitted that the provisions of the Act are not D
attracted even if all the averments in the grounds are accepted. To
appreciate this contention it becomes necessary to refer to the contents
of the grounds in brief.
., The detenu is a resident of Ahmedabad City. There is a refe-
rence in the grounds to about three crimes registered in various police E
stations and they are Crime Nos. 122/86, 70/88 and 96/90. In all these
cases it is alleged that the detenu and his associates armed with deadly
weapons like Swords, Dhariya and fire-arms commit!t!d offences
punishable under Sections 307, 451, 143, 147, 148 1.P.C. and Section
r~
25(1) of the Arms Act. So far as the first two crimes are concerned
admittedly the detenu was acquitted. In Crime No. 96/90, in which F
investigation is pending, bail was granted. Then there is a reference to
~- 8 crimes under the provisions of the Prohibition Act registered in
Kagdapith Police Station on the basis whereof he is described as a
'bootlegger' within the meaning of Section 2(b) of the Act. Some
ended in conviction and some are pending in trial but admittedly the
detenu does not figure in any one of these cases. Thereafter it is stated G
in the grounds in general that the detenu was having dangerous
weapons and with the aid of his associates, has been subjecting inno-
cent citizens to physical beating causing physical in juries and that he
-{ and his associates have been threatening and beating the peace loving
citizens and people residing and doing their business in the said area
are afraid and an atmosphere of fear, danger and terror prevails and H
930 SUPREME COURT REPORTS [1990] 3 S.C.R.
A that the detenu comes within the meaning of 'dangerous person' as
defined under Section 2( c) of the Act. The detaining authority has also
referred to an earlier detention order dated 20.8.85 passed against the
detenu and noted that he was released by the High Court. Then the
detaining authority proceeds to mention that taking action under Sec-
tion 59(1) of the Bombay Police Act, 1951 is not possible and also is
B not appropriate under the circumstances. In the concluding paragraph
it is particularly mentined that the detenu was a strong-headed
'dangerous person' and he was using the dangerous weapons creating
an atmosphere of terror. Towards the end it is specifically mentioned
that in respect of Crime No. 96/90 registered with the Sattelite Police
Station, the Chief Judicial Magistrate had remanded him to the judi-
c cial custody till 15.3.90 and there are chances of his being released,
therefore to prevent him from acting prejudicially to the maintenance -
of public order, the detention was ordered.
Section 2(b) of the Act defines 'bootlegger' which reads thus:
D "bootlegger" means a person who distills, manufactures,
stores, transports, imports, exports, sells or distributes any
Jiquor, intoxicating drug or other intoxicant in contraven-
tion of any provision of the Bombay Prohibition Act, 1949,
(Born. XXV of 1949) and the rules and orders made there-
under, or any other law for the time being in force or who
E knowiqgly expends or applies any money or supplies any '
animal, vehicle, vessel or other conveyance or any recepta-
cle or any other material whatsoever in furtherance or
· support of the doing of any of the things described above by
or through any other person, or who abets in any other
.-
manner the doing ofany such thing;"
F
Unless there is material to show that the detenu committed any one of ,
the acts mentioned in the definition, he can not come within the mean· ··--1
ing of 'bootlegger'. Though in the grounds there is a reference to 8
crimes under the provisions of the Prohibition Act, the detenu, as
already mentioned, does not figure in any one of these cases. There is
G no material whatsoever of his involvement in any manner in any of
these prohibition cases. Therefore, he can not be said to be a
bootlegger.
Now we shall consider whether he comes within the meaning of
'dangerous person' as defined in Section 2(c) of the Act which reads as
H under:
A YUB v. S.N. SINHA [REDDY, J. I 931
"2(c) "dangerous person" means a person, who either by A
himself or as a member of or leader of a gang, habitually
).
commits, or attempts to commit or abets the commission of
offences, punishable under Chapter XVI or Chapter XVII
or Chapter XXII of the Indian Penal Code (45 of 1860), or
any of the offences punishable under Chapter V of the
Arms Act, 1959 (54 of 1959)". B
As per this definition, a person, who 'habitually' commits or attempts
to commit or abets the commission of offences mentioned therein either
. by himself or as a member of or leader of a gang is a "dangerous
person". The expression 'habitually' is very significant. A person is
said to be a habitual criminal who by force of habit or inward disposi-
tion is accustomed to commit crimes. It implies commission of such c
crimes repeatedly or persistently and prima facie there should be a
continuity in the commission of those offences. In Vijay Narain Singh
v. State of Bihar and Ors., [1984] 3 SCC 14 the majority explained the
meaning of the word 'habitually' thus:
D
"The expression 'habitually' means 'repeatedly' or 'persis-
tently'. It implies a thread of continuity stringing together
similar repetitive acts. Repeated, persistent and similar,
but not isolated, individual and dissimilar acts are neces-
sary to justify an inference of habit. It connotes frequent
commission of acts or commissions of the same kind refer- E
red to in each of the said sub-clauses or an aggregate of
similar acts or omissions".
Rashidmiya © Chhava Ahmedmiya Shaik v. Police Commissioner,
Ahmedabad and Another, [1989] 3 SCC 321 is yet another case where
the scope of Section 2( c) of the Act came up for consideration before F
this Court and.it is held that:
"Therefore, this solitary incident would hardly be suffi-
cient to conclude that the detenu was habitaully commit-
ting or attempting to commit or abetting the commission of
offences." G
It is submitted that in the instant case except Crime No. 96/90 there is
no other case pending and the other two crimes which are referred lo
in the grounds ended in acquittal and the definition of 'dangerous
person' in Section 2(c) does not include cases under the Prohibition
Act. Therefore the detenu is not a habitual offender so as to come H
932 SUPREME COURT REPORTS [ 1990] 3 S.C.R.
A within the meaning of 'dangerous person'. We find considerable force
in this submission. We have gone through the entire record. The
learned counsel appearing for the State could not place any material
from which it can be inferred that the petitioner was a habitual offen-
der. No doubt a lengthy counter is filed in which it is repeatedly aver-
red in general that the detenu was indulging in prejudicial activities but
B as already mentioned, only Crime No. 96/90 is pending investigation
and from this alone we can not infer that the petitioner is a 'dangerous
person' within the meaning of Section 2(c) of the Act. To satisfy
ourselves we have also carefully perused the FIR in Crime No. 96/90
and the complaint annexed to the same. The main allegation against
the detenu was that he, out of sudden excitement, fired the revolver
c and as a result of which one Mehbub Khan received injury on his leg
and again he fired a shot into the air and that he and his associates
were moving around in a jeep threatening the people in the area. But
in the order passed by the learned Sessions Judge on 13.3.90 while
-
releasing the petitioner on bail, it is noted that the said Mehbub Khan
had no fire-arm injury at all and as a matter of fact, the public pro-
D secutor conceded the same. The learned Sessions Judge has also noted
that no medical evidence is produced to PJ:9Ve that any one was injured
during the alleged occurrence. If such is the only crime pending in
which the detenu is alleged to have participated in, it can by no stretch
of imagination be said that he comes within the meaning of 'dangerous
person' and the conclusions drawn by the detaining authority are
E bereft of sufficient material as required under Section 2(c) of the Act.
This betrays non-application of mind by the detaining authority. Con-
sequently, the grounds on which the detention order is passed, are
irrelevant and non-existing. These are the reasons which weighed with
us for not upholding the detention.
G.N. Petition allowed.
~1
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