Supreme Court of India
PIYUSH KANTILAL MEHTAversusCOMMISSIONER OF POLICE, AHMEDABAD CITY AND ANOTHER
- Citation
- 1988 INSC 369
- Decided
- 16 December 1988
- Disposal
- Case Allowed
- Bench
- M M DUTT
Holding
A preventive detention order under the Act is invalid where the petitioner is merely a bootlegger and the grounds do not demonstrate an adverse or likely adverse effect on public order; such vague grounds cannot sustain detention.
Summary
The petitioner, Piyush Kantilal Mehta, was detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 on the ground that he was a bootlegger who used force and created fear, allegedly affecting public order. He challenged the detention, arguing that the grounds were vague, that mere bootlegging does not affect public order, and that the writ petition was maintainable despite a pending representation before the Advisory Board. The Court examined the statutory requirement that a detainee's activities must adversely affect or be likely to affect public order and held that the detention order failed to demonstrate any such effect or a feeling of insecurity among the public. The Court also found the grounds to be vague and insufficient for a valid preventive detention. Consequently, the petition was allowed, the detention order was quashed, and the petitioner was ordered to be released.
Issues considered
- Whether the grounds of detention under Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 sufficiently show that the petitioner’s activities affect or are likely to affect the maintenance of public order.
- Whether the detention order is void for vagueness and lack of material to substantiate a feeling of insecurity among the public.
- Whether a writ petition under Article 32 of the Constitution is maintainable when a representation is pending before the Advisory Board.
Legislation cited
- Constitution of Indias. Article 22(5), s. Article 32
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 2(b), s. 3(1), s. 3(2), s. 3(4), s. 9(1), s. 9(2)
Subjects
preventive detentionpublic ordervagueness of groundsArticle 32Advisory Boardbootleggingconstitutional law
Judgment
•
PIYUSH KANTILAL MEHTA
A
V.
COMMISSIONER OF POLICE, AHMEDABAD CITY AND
ANOTHER
DECEMBER 16, 1988
B
[MURARI MOHON DUTT AND S. NATARAJAN, JJ.)
Gujarat Prevention of Anti-Social Activities Act, 1985-Sections 2
and 3-Detention Order-Validity of-Merely because a person is. a
bootlegger he cannot be preventively detained-Activiiies should effect
adversely maintenance of public order.
c
Constitution of India, 1950-Article 32-Detention Order-
Assai/ment of-Permissible by writ petition even though representation
of detenu pending before Advisory Board.
>
The petitioner filed a writ petition cha'itenging the legality of the D
order of his detention passed by the respondent nnrler sub-section (2) of
Section 3 of the Gujarat Prevention of Anti-Social Activities, Act, 1985.
In the grounds of detention, it was alleged that the petitioner was a
prohibition bootlegger, indulging in use of force and violence, and by
illegal sale of liquor the petitioner created an atmosphere of fear and
terror by beating innocent citizens, thus indulging in anti-social E
activities which were against public order. The detention order also
indicated that he was prosecuted in two criminal cases under the Excise
Act and was acquitted in one case and the other case was pending.
In his writ petition to this Court the petitioner contended that the
grounds of detention were vague and there was nothing to show that his F
activities either affected or are likely to affect adversely the main-
tenance of public order, and that it is not sufficient to allege that he is a
bootlegger to warrant his detention.
The respondent challenged the maintainability of the writ petition
in view of the pendency of the representation of the petitioner before the G
Advisory Board and also contended that the grounds were not vague
being supported by statements of the witnesses.
Allowing the writ petition and quashing the order of. detention,
and directing the release of the petitioner, this Court,
H
1081
1082 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
HELD: A person may be very fierce by nature, but so long as the
A public generally are not affected by his activities on conduct, the
- ·•
question of maintenance of public order will not arise. In order that an
acitivity may be said to affect adversely the maintenance of public
order, there must be material to show that there has been a feeling of
insecurity among the general public. If any act of a person creates panic
B or fear in the minds of the members of the public upsetting the even
tempo of life of the community, such act must be said to have a direc.t
bearing on the question of maintenance of public order. h089H; 1090A-B]
The Commission of an offence will not necessarily come within the "'·
purview of 'public order'. [I090B]
c Pushkar Mukherjee v. State of West Bengal, [1969] 2 S.C.R. 635,
relied on.
In the instant case, the detaining authority has failed to sub- .,
stantiate that the alleged anti-social activities of the petitioner adversely
D effect or are likely to .affect adversely the maintenance of public order.
It is true some incidents of beating by the petitioner had taken place, as
alleged by the witnesses. But, such incidents do not have any bearing on
the maintenance of public order. [1090H; I 09IA]
It may be that the petitioner is a bootlegger within the meaning of
E section 2(b) of the Act, but merely because he is a bootlegger he cannot
be preventively detained under the provisions of the Act unless, as laid
down in sub-section (4) of Section 3 of the Act, his activities as a J;>ootleg-
ger ·affect adversely or are likely to affect adversely the maintenance of
p~blic order. [109IB]
F Even though a representation is pending before the Advisory
Board, the writ petition under Article 32 of the Constitution is main- .i
tainable before this Court. [I 086B I
Prabhu Dayal Deorah v. The District Magistrate, Kamrup, [1974]
I S,C.C. 103, relied on.
G
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
403 of 1988.
(Under Article 32 of the Constitution of India)
H Dr. Y.S. Chitale, Yatin N. Oza, P.H. Parekh and Soni! Dogra
for the Petitioner.
'-:.'~
P.K. MEHTA v. COMMR. OF POLICE [DUTf, J.[ 1083
P.S. Poti, Mrs. H. Wahi and M.N. Shroff for the Respondents.
A
The Judgment of the Court was delivered by
DUTT, J. In this writ petition, the petitioner has challenged the
legality of the order of his detention dated August 3, 1988 passed b}
the Commissioner of Police, Ahmcdabad City, under sub-section (2) B
of section 3 of the Gujarat Prevention of Anti-social Activities Act,
1985, hereinafter referred to as 'the Act'.
'·' The grounds on which the impugned order of detention has been
made run into seven pages. The relevant portions of which are
extracted below:
"In pursuance to Section 9(1) of the Gujarat Preven- c
tion of Anti-social Activities Act, 1985, Shri Piyush Kanti-
lal Shah is hereby informed the grounds of detention as
under:
.·•
You are indulging into anti-social activities by hoard-
ing illegal foreign liquor and also selling it through yourself D
and through your servants near Navrangpura Municipal
Bus-stand and Navrang High School, Ahmedabad that the
cases have been registered against you under Bombay Pro-
hibition Act, 1949 and in which you have been arrested.
,. Sr. Police Stn. C.R. Sectlons Qty. seized Result
E
No. No.
1. Navrangpura62/88 Prohibition21795 Pending.
2. Navrangpura 114/88Act-66(b) MLLtr. Pending
65(a) foreign investi-
(e), 81 Liquor. gation
Prob. Act 139750
F
66(b), Ml. Ltr.
65(a)(e), foreign
116(b) and liquor.
98.
Carefully considering the complaint, identification
marks on your face and charge-sheet, it appears that you G
are a prohibition bootlegger and you are indulging into sale
of foreign liquor in the aforesaid areas and you continue
your anti-social activities. In t.he aforesaid area, you, your
servants and associates indulge into use of force and
violence and also beat innocent citizens by which an
atmosphere of fear is created and by indulging into such H
1084 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
t-
activities, you are causing hindrance to maintenance of
A
public order. You also show dangerous weapons to the
citizens and also create an atmosphere of fear and you· are
carrying on illegal liquor business. Because of your fear,
citizens residing nearby are not in a position to speak any-
thing against you and also do not file complaint against
B you. Because of your activities and your associates, the
people of the aforesaid area feel insecurity of their life and
property and all these activities are causing hindrance to
public order.
~
To substantiate that you are indulging into anti-social '
activities and that your activities are against the public
c order, certain persons residing in the aforesaid area who
are peace loving have also given statements and the copy of
the aforesaid statements are given to you.
.-.
. . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Taking into consideration all that has been stated . ,
aforesaid, I am fully satisfied that you are prohibition
bootlegger and by indulging into use of force and violence,
E
you continue to indulge into illegal sale of liquor and you
create an atmosphere of fear and terror by beating inno-
..
cent citizens. That action against you has been taken under
ordinary law and you have been released on bail. After
being released on bail, you have continued your illegal
anti-social activities and therefore if once again actions are
taken under ordinary law against you, there are possibi-
F lilies of your being released on bail and your continuing
anti-social activities and since it is necessary to prevent you
immediately for maintenance of public order, and since
.'
there is no other alternative, as a last resort, I order to
' detain you under the aforesaid Act."
G It appears from the grounds extracted above and it is also not
disputed that the petitioner has been prosecuted in two criminal cases.
In FIR relating to case No. 62/88, the offence alleged to have been
committed by the petitioner is that he was caught red-handed posses-
sing English wines with foreign marks without any legal pass or
permission to do so on April 13, 1988. In the second case being case
H No. 114/88, the offence, as alleged to have been committed by the
""
'1:'1"
P.K. MEHTA v. COMMR. OF POLICE !DUTT, J.J 1085
petitioner and as recorded in the FIR, is that he was caught while
A
shifting 296 bottles of foreign liquors in an Ambassador car without
any pass, permit or licence. It is not disputed that in one of these two
,. cases the petitioner has been acquitted and the other is pending, but
the petitioner has not been convicted by any court.
In the grounds of detention, it is alleged that the petitioner is a B
prohibition bootlegger, and that by indulging in use of force and vio-
lence and by illegal sale of liquor, the petitioner creates an atmosphere
• of fear and terror by beating innocent citizens. It is also alleged that
the petitioner is indulging in anti-social activities, and that the
activities are against public order.
The statements of five persons, who have been described as C
witnesses Nos. 1 to 5, have been recorded before the order of deten-
tion was passed. The copies of their statements have been given to the
petitioner, but their names have not been disclosed to the petitioner,
and it is not disputed before us that in view of section 9(2) of the Act,
the detaining authority is entitled not to disclose the names of the D
detenu.
At this stage, it may be stated that the representation of the
petitioner is pending before the Advisory Board. The question that
has been raised on behalf of the respondents is wtiether in view of the
pendency of the representation before the Advisory Board, the writ E
petition is maintainable under Article 32 of the Constitution. The
question need not detain us long, for it has already been decided by
this Court in Prabhu Dayal Deorah v. The District Magistrate,
Kamrup, [1974] .1 SCC 103. In paragraph 16 of the Report Mathew, J.,
speaking for himself and Mukherjee, J., observed inter alia as follows:
F
"We think that the fact that the Advisory Board would
have to consider the representations of the petitioners
where they have also raised the contention that the grounds
are vague would not in any way prevent this Court from
exercising its jurisdiction under Article 32 of the Constitu-
tion. The detenu has a right under Article 22(5) of the G
Constitution to be afforded the earliest opportunity of
making a representation against the order of detention.
That constitutional right includes within its compass the
right to be furnished with adequate particulars of the
grounds of the detention order. And, if their constitutional
right is violated, they have every right to come to this Court H
''·/ff
1086 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
A under Article 32 complaining that their detention is bad as
violating their fundamental right. As to what the Advisory
Board might do in the exercise of its jurisdiction is not the
concern of this Court."
In the above observation, this Court has specifically laid down
B that even though a representation is pending before the Advisory
Board, the writ petition under Article 32 of the Constitution is main-
tainable before this Court. In the circumstances, we may proceed to
dispose of the writ petition on merits.
In the dentention order, the petitioner has been named as Piyush
Kantilal Shah. According to the petitioner, he is Piyush kantilal
c Mehta and not Piyush Kantilal Shah. It is alleged by the petitioner that
the detaining authority has deliberately and ma/a fide detained him
with a view to saving one Piyush Kantilal Shah. In order to sub-
stantiate that his name is· not Piyush Kantilal Shah, but Piyush Kantilal
Mehta, the petitioner has filed certain Income Tax Challans, returns, a
D driving licence and some other documents wherein his name appears
as Piyush Kantilal Mehta. It is submitted by the petitioner that as he
has been deliberately and wrongly described as Piyush Kantilal Shah in
-'
the order of detention, the same is illegal and should be quashed on
this ground alone. J
E In his counter-affidavit, the Commissioner 'of Police,
Ahmedabad City, who is the detaining authority, has averred that the
petitioner has made false attempts to show that he is not Piyush Kanti-
lal Shah, but Piyush Kantilal Mehta. It is pointed out that even at the
time of the service of the order of detention, the petitioner had himself
signed as Piyush Kantilal Shah in the presence of the Police Inspector,
F Navrangpura Police Station, Ahmedabad City. It is submitted that the
-1
petitioner is trying to mislead this Court by making a false attempt of
changing his surname. We do not find any reason why we should not
accept the statement· of the Commissioner of Police as made in his
affidavit. It is not disputed that the petitioner has signed his name as
Piyush Kantilal Shah when the order of detention was served upon
G him. It is, however, alleged by the petitioner that he was forced to sign
as Piyush Kantilal Shah. It is difficult for us to believe that the detain-
ing authority will force the petitioner to sign his name as Piyush Kanti-
. Jal Shah, if really his name is Piyush Kantilal Meht_a. It may be that he
has another name as Piyush Kantilal Mehta, but we are satisfied that
the petitioner is also known as Piyush Kantilal Shah inasmuch as he
H himself had signed his name as Piyush Kantilal Shah.
1088 SUPREME COURT REPORTS [ 1988) Supp. 3 S.C.R.
~
making thereof, unless, in the meantime, it has been ap-
A proved by the State Government.
(4) For the purpose of this section, a person shall be
deemed to be "acting in any manner prejudicial to the
maintenance of public order" when such person is engaged
B in or is making preparation for engaging in any activities
whether as a bootlegger or dangerous person or drug offen-
der or immoral traffic offender or property grabber, which
affect adversely or are likely to affect adversely the main- (
tenance of public order.
Explanation.- For the purpose of this sub-section,
c public order shall be deemed to have been affected
adversely or shall be deemed likely to be affected adversely
inter a/ia if any of the activities of any person referred to in
this sub-section directly or indirectly, is causing or is likely
to cause any harm, danger or alarm or feeling of insecurity
D among the general public or any section thereof or a grave
or widespread danger to life, property or public health."
Under sub-section (1) of section 3, an order of detention of a
person can be passed with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order. Sub-section (4)
E of section 3 contains a deeming provision. Under sub-section (4), a
bootlegger or a dangerous person or a drug offender shall be deemed
to be acting in a manner prejudicial to the maintenance of public order
when the activities of such a person affect adversely or are likely to
affect adversely the maintenance of public order. In other words,
although sub-section (4) contains a deeming provision, such deeming
F provision will not be attracted unless the activities of the person
concerned affect adversely or arc likely to affect adversely the main- •
tenance of public order.
It is urged by Dr. Chi tale, learned Counsel appearing on behalf
of the petitioner, that the grounds of detention are vague and there is.
G nothing to show that the activities of the petitioner either affect or are
likely to affect adversely the maintenance of public order. The learned
Counsel submits that it is not ,enough to allege that the petitioner is a
bootlegger, but there must be sufficient materials to show that the
H
activities of the petitioner affect or are likely to affect adversely the
maintenance of public order. ..
P.K. MEHTA v. COMMR. OF POLICE !DUTT, J.J 1089
In the grounds of detention, two criminal cases have been A
mentioned. It is not disputed that in one of them the petitioner has
been acquitted. In the FIR relating to case No. 62/88, the allegations
against the petitioner are that he was caught red-handed with English
Wines with foreign marks without any legal pass or permission. In the
FIR of the other case being Case No. 144/88, the offence alleged to
have been committed by the petitioner was that the petitioner was B
caught while travelling in an Ambassador car with 296 bottles contain-
.. ing foreign liquor without any pass, permit or licence. These cases
have been mentioned in the detention order, presumably with a view
to substantiating the allegation that the petitioner is a bootlegger.
There can be no doubt that the offences that have been alleged to have
been committed by the petitioner have no bearing on the question of
maintenance of public order.
c
It is also alleged in the grounds of detention that the petitioner,
his servants and associates indulge in the use of force and violence and
also beat innocent citizens by which an atmosphere of fear is created
and by indulging in such activities, the petitioner is causing hindrance D
to the maintenance of public order. It is further alleged that the
petitioner shows dangerous weapons to the citizens and thereby create
an atmosphere of fear. These allegations are very general in character
without reference to any particular incident or incidents in support of
such allegations. The detaining authority has sought to substantiate
the said allegations and connect the activities of the petitioner with the E
question of maintenance of public order by the statements of five
witnesses. Apart from some minor incidents of beating by the
petitioner, the witnesses have alleged that the petitioner is high-
handed and fierce by nature; his high-handedness and bickering nature
have caused terror to the public of the area; he is not afraid of the
policy; his activities are anti-social; he always keeps with him a knife F
>
and a revolver and he threatens surrounding people.
It is submitted by Dr. Chitale that the allegations which have
been made by the said five witnesses against the petitioner are also
very generarin character and do not involve the· iuestion of public
order. Counsel submits that there is a distinction between 'law and G
order' and 'public order'. The allegations made against the petitioner
may give rise to a question of law and order but, surely, th~y have
nothing to do with the que_.stion of public order. A person may be very
.
•
fierce by nature, but so long as the public generally are not affected by
his activities or conduct, the question of maintenance of public order
will not arise. In order that an activity may be said to affect adversely H
,-
r'
1090 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R.
r
the maintenance of public order, there must be materials to show that
A
there has been a feeling of insecurity among the general public. If any
act of a person creates panic or fear in the minds of the members of the
public upsetting the even tempo of life of the community, such act
must be said to have a direct bearing on the question of maintenance of
public order. The commission of an offence will not necessarily come
B within the purview of 'public order'.
Jn this connection, we may refer to a decision of this Court in
.·Pushkar Mukherjee v. State of West Bengal, [1969] 2 SCR 635 where f
the distinction between 'law and order' and 'public order' has been
clearly laid down. Ramaswami, J. speaking for the Court .observed as
follows: /
c f~
!•
"Does the expression 'public order' take in every kind of (
infraction of order or only some categories thereof? It is
manifest that every act of assault or injury to specific
persons does not lead to public disorder. When two people
D quarrel and fight and assault each other inside a house or in
a street, it may be said that there is disorder but not public
•·l
disorder. Such cases are dealt with under the powers vested
in the executive authorities under the provisions of or-
dinary criminal law but the culprits cannot be detained on
the ground that they were disturbing public order. The
E contravention of any law always affects order but before it
can be said to affect public order, it must affect the com- '.1
munity or the public at large. In this connection we must
draw a line of demarcation between serious and aggravated
forms of disorder which directly affect the community or
injure the public interest and the relatively minor breaches
F of peace of a purely local significance which primarily
~·
injure specific individuals and only in a secondary sense
public interest. A mere disturbance of law and order lead-
ing to disorder is thus not necessarily sufficient. for action
under the Preventive Detention Act but a disturbance
which will affect public order comes within the scope of the
G Act."
In the instant case, the detaining authority, in our opinion, has
failed to substantiate that the alleged anti-social activities of the
H
petitioner adversely affect or are likely to affect adversely the main-
tenance of public order. It is true some incidents of beating by the
'
petitioner had taken. place, as alleged by the witnesses. But, such
.
,
P.K. MEHTA v. COMMR. OF POLICE [DUTT, J.J 1091
incidents, in our view, do not have any bearing on the maintenance· of A
public order. The petitioner may be punished for the alleged offences
committed by him but, surely, the acts constituting the offences cannot
be said to have affected the even tempo of the life of the community. It
may be that the petitioner is a bootlegger within the meaning of sec-
tion 2(b) of the Act, but merely because he is a bootlegger he cannot
B
be preventively detained under the provisions of the Act unless, as laid
down in sub-section (4) of section 3 of the Act, his activities as a
bootlegger affect adversely or are likely to affect adversely the main-
tenance of public order. We have carefully cons'idered the offences
alleged against the petitioner in the order of detention and also the
allegations made by the witnesses and, in our opinion, these offences
or the allegations cannot be said to have created any feeling of insecu- c
rity or panic or terror among the members of the public of the area in
question giving rise to the questi~n of maintenance of public order.
The order of detention cannot, therefore, be upheld.
Coming back to the question of vagueness of the ~rounds, it is
D
submitted by Mr. Poti, learned Counsel appearing on behalf of the
·• respondents, that the grounds are not vague, and that they are sup-
ported by the statements of the witnesses. In our opinion, the state-
ments of the witnesses are themselves vague and general in character.
In Pushkar Mukherjee's case (supra), one of the grounds was "You
have become a menace to the society and there have been disturbances
E
and confusion in the lives of peaceful citizens of Baraset and Khardah
P.S. areas under 24-Paraganas District and the inhabitants thereof are
in constant dread or disturbances of public order". It was held by this
Court that the ground was extremely _vague and gave no partieulars to
enable the petitioners to make an adequate representation against the
order of detention and it infringed the Constitutional safeguard pro-
F
vided under Article 22(5) of the Constitution of India. Jn the instant
. ' case, the grounds of detention are more or less similar to the ·grounds
in Pushkar Mukherjee's case (supra). The statements of wit~esses do
not, in our opinion, remove the vagueness of the grounds.
Some other grounds have been urged by Dr. Chitale with a view
G
to substantiating the invalidity of the order of detention. As we have
found that the order of detention cannot be sustained, as the grounds
of detention suffer from vagueness and the allegations against the
petitioner are not such as to raise the question of maintenance of
public order, we do not think it necessary to consider the other
grounds. H
":o:.'
1092 SUPREME COURT REPORTS [1988] Supp. 3 S.C.R. ;..
A For the reasons aforesaid, we allow the writ petition and quash
the impugned order of detention and direct that the petitioner be
released forthwith.
S.K.A. Petition allowed.
B
•·
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