Supreme Court of India
RASHIDMIYA @ CHHAVA AHMEDMIYA SHAIKversusPOLICE COMMISSIONER, AHMEDABAD & ANR.
- Citation
- 1989 INSC 183
- Decided
- 5 May 1989
- Disposal
- Case Allowed
- Bench
- B C RAY
Holding
The detention order is invalid because the petitioner could not be established as a 'dangerous person' and his bootlegging activities were not shown to affect public order, leading to the quashing of the order.
Summary
The petitioner was detained under the Gujarat Prevention of Anti‑social Activities Act, 1985 on the grounds that he was a 'bootlegger' and a 'dangerous person' whose activities threatened public order. The detaining authority relied on four liquor‑related cases under the Bombay Prohibition Act and a single criminal case involving offences under IPC sections 307 and 25 of the Arms Act. The Supreme Court examined whether the material placed before the authority satisfied the statutory definitions in Sections 2(b) and 2(c) of the Act and whether the alleged conduct actually affected the maintenance of public order as required by Section 3(4). It held that a solitary incident could not establish the habitual offender requirement for a 'dangerous person' and that the bootlegging allegations were not shown to adversely affect public order. Consequently, the detention order was deemed unsupported and was quashed, with the petitioner ordered to be released.
Issues considered
- Whether the petitioner could be classified as a 'dangerous person' under Section 2(c) of the Gujarat Prevention of Anti‑social Activities Act based on the material before the detaining authority.
- Whether the petitioner, as a 'bootlegger' under Section 2(b), engaged in activities that adversely affect or are likely to affect the maintenance of public order as required by Section 3(4).
- Whether the grounds of detention are severable and if the order can survive on the 'bootlegger' ground alone.
- Whether a single incident satisfies the 'habitual offender' requirement under Section 2(c).
Legislation cited
- Arms Act, 1959s. 25
- Bombay Prohibition Act, 1949
- Gujarat Prevention of Anti-Social Activities Act, 1985s. 2(b), s. 2(c), s. 3, s. 6
- Indian Penal Code, 1860s. 120B, s. 212, s. 307
Subjects
preventive detentionbootleggerdangerous personpublic orderhabitual offendersection 2(b)section 2(c)section 3(4)quash order
Judgment
RASHIDMIYA@ CHHAVA AHMEDMIYA SHAIK
A
v.
POLICE COMMISSIONER, AHMEDABAD & ANR.
MAY 5, 1989
B [B.C. RAY ANDS. RATNAVEL PANDIAN, JJ.]
Gujarat Prevention of Anti-social Activities Act, 1985: Sections,
2(b), 2(c), 3 and 6.
Preventive detention-Order-Grounds of detention-Severabi-
C lity and validity of-'Bootlegger'-Activities of-Whether prejudicial to -~
maintenance of public order.
'Dangerous person'-Detenu-Whether should be a habitual
offender under Chapter XVI or XVII or XXII of Indian Penal Code or
D under Chapter V of Arms Act.
Words. and Phrases: 'Maintenance of public order'-'Boot-
legger'-' Dangerous person'-Meaning of
E The petitioner was detained, under an order passed by the detain-
ing authority under Section 3(1) of the Gujarat Prevention of Anti
Social Activities Act, 1985, with a view to preventing him from acting in
any manner prejudicial to the maintenance of public order. The detain-
ing authority reached his subjective satisfaction on the grounds (i) that
the detenu was a 'bootlegger' within the meaning of Section 2(b) of the _\
F Act because he was indulging in criminal and anti-social activities by -
illegally storing and selling foreign liquor and beer and that four cases
were registered against him under the Bombay Prohibition Act, 1949;
(ii) that he was also a 'dangerous person' within the meaning of section
2(c) of the Act because he, as a member of a particular gang, was
spreading an atmosphere of fear aud terror by beating innocent people
G in the Ahmedabad city thus affecting the public order adversely and a
case was also registered against him under Section l20(B), 212 and 307 y·
of the Indian Penal Code, 1860 and Section 25 of the Arms Act besides
under the provisions of various other Acts.
The petitioner filed a writ petition in this Court challenging the
H validity of the detention order contending that the conclusions drawn by
182
RASHIDMIYA v. POLICE COMMISSIONER AHMEDABAD 183
the detaining authority were not supported by materials.
A
Quashing the detention order and allowing the Writ Petition,
HELD: 1. To bring a person within the definition of Section 2(c)
of the Act ii must be shown that the person either by himself or as a
member of or a leader of a gang habitually commits or attempts to B
commit or abets the commission of offences punishable under Chapter
XVI or XVII or XXII of the Indian Penal Code or any of the offences
punishable under Chapter V of the Arms Act. It most be shown that he
is habitually committing or attempting lo commit or abetting the com-
mission of offences enumerated therein. [187-H; 1888]
1.1 In the instant case, the detenu is said to have committed c
offences under Sections 307, 120-B, 212 of the Indian Penal Code and
Section 25 of the Arms Act besides under the provisions of various other
Acts. Only one case registered under the provisions of Section 307 of the
Indian Penal Code and Section 25 of the Arms Act falls within the said
definition clause. The other two offences registered under Sections 120-B D
and 212 are not covered under Section 2(c). Therefore, this solitary
incident would hardly be sufficient to conclude that the detenu was
habitually committing or attempting to commit or abetting the commis-
/~ sion of offences. The general and vague allegations made in the grounds
of detention that the detenu was taking active part in communal riots and
entered into conspiracy to spread an atmosphere of terror being a E
member of a particular gang in the absence of any specific instance or
~ registration of any case thereof, cannot be construed as offences falling
under any of the above three chapters of the Indian Penal Code or
, chapter V of the Arms Act enumerated under Section 2(c) so as to
._J_ characterise the detenu as a 'dangerous person'. [188A-E]
F
2. A conjoint reading of Section 2(b) and Section 3(4) with the
explanation annexed thereto clearly spells out that in order lo clamp an
order of detention upon a 'bootlegger' under Section 3 of the Act, the
detaining authority must not only be satisfied that the person is a
'bootlegger' within the meaning of section 2(b) but also that the
activities of the said bootlegger affect adversely or likely to affect G
y · adversely the maintenance of public order. [188H, I89A]
2.1 In the instant case, the vague allegations in the grounds of
detention that the detenu is the main member of a particular gang
indulging in bootlegging activities and that he is taking active part in
such dangerous activities, are not sufficient for holding that his H
184 SUPREME COURT REPORTS [1989] 3 S.C.R.
activities affected adversely or were likely to affect adversely the
A
maintenance of public order in compliance with sub-Section 4 of the
Section 3 of the Act that the activities of the detenu have caused harm,
dangeror alarm or a feeling of insecurity among the general public or any
Section thereof or a grave or widespread danger to life, property or
••
public health as per the explanation to Section 3(4). The offences
y
B registered in the four cases, under the Bombay Prohibition Act, 1949
against the detenu on the ground that he was dealing in liquor have no 6
r
bearing on the question of maintenance of public order in the absence of
any other material that those activities of the detemi have adversely
affected the maintenance of public order. [189A-D]
Ashok Kumar v. Delhi Admfnistration, [1982] 2 SCC 403 and
c Piyush Kantilal Mehta v. The Commissioner of Police, Ahmedabad City
and Anr, Judgments Today, [1988] 4 703, applied.
ORIGINAL JURISDICTION: Writ Petition (Criminal) No.
395 of 1988.
D
(Under Article 32 of the Constitution of India).
Miss Kamini Jaiswal and S.C. Patel for the Petitioner.
T. U. Mehta and M.N. Shroff for the Respondents.
E
The Judgment of the Court was delivered by
RATNAVEL PANDIAN, J. This writ petition under Article 32
of the Constitution of India is filed by the petitioner (the detenu
herein) canvassing the correctness of the detention order dated 30.8.88 __\_ .
F made by the detaining authority namely Commissioner of Police,
Ahmedabad city in exercise of the powers conferred on hiro under
sub-Section I of Section 3 of the Gujarat Prevention of Anti-social
Activities Act 1985 (hereinafter referred as the Act) with a view to
preventing the detenu .from acting in any manner prejudicial to the
maintenance of public order in the area of Ahmedabad city. In
G pursuance of the above order, the detenu is detained in the Central
Jail; Sabarmati. The detenu has been furnished with the copies of the 'f'
grounds of detention and all other material documents inclusive of the
statements of the witnesses on the basis of which the detaining autho-
rity reached his subjective satisfaction for passing this impugned order.
H The sum and substance of the alleged activities of the detenu
RASHIDMIYA v. POLICE COMMISSIONERAHMEDABAD [PANDIAN, J.) 185
mentioned in grounds of detention are that the detenu was indulging in
A
criminal and anti-social activities in the area of Dariyapur Kalupur of
'
Ahmedabad city by illegally storing and selling foreign liquor and beer
either personally or through his associates and that in this regard the
following four cases were registered under the provisions of the
Bombay Prohibition Act of 1949. We reproduce that relevant portion
-y giving the details of the cases as found in the grounds of detention: B
'
Sr. No. Police CR No. Section Qty Disposals
Station Seized
~. 1. Kalupur 130/88 Prov. 66(B) 8 Ltr. beer Pending in
Court
c
'r· 2. Kalupur 152/88 SOOML beer order pending
3. Kalupur 156/88 268 bottle Pending in
foreign and Court
122 bottle D
box
~
I ./.4. Dariyapur 80/88 Prov. 66(B) foreign order pending
,,-J... 65(A)8! liquor
From the above materials, the detaining authority has concluded E
that the detenu was a bootlegger within the meaning of Section 2(b) of
the Act.
It is further stated that the detenu besides indulging in the ac-
tivities of bootlegging, he and his companions were creating terror in
that area by beating innocent people in public in Ahmedabad city F
which in turn affected adversely the maintenance of public order.
Further it is stated that the detenu and his associates always
armed with dangerous weapons like bombs, cartridges etc. were
threatening the people in the city of Ahmedabad in respect of which a
case has been registered which is re-produced as set out in the grounds G
of detention:
S. No. Police Station CR No. Section Disposal
(1) Kalupur 2/88 IPC 307, 120(B) Under
212, Terrorist inquiry
Act, Sec. 3(1)(3) H
186 SUPREME COURT REPORTS [1989] 3 S.C.R.
A
Explosive Sec. 4,
5 Arms Act;
25(1)(A)(c);
Bombay Police
Act 135(1)
l
B In addition to the above it is alleged tliat the detenu, being the
main member of the gang of Abdul Latif Abdul Wahab Shaikh entered
into a conspiracy to spread an atmosphere of fear and terror among the
residents of that area and also a sense of insecurity among the people.
On the above materials, mentioned in the grounds of detention,
the detaining authority has come to the conclusion that the detenu is a
c 'dangerous person' within the meaning of Section 2(c) of the Act. · .....,
Thus the detaining authority has found that the detenu was not
only a 'bootlegger' but also a 'dangerous person' within the definitions
of Section 2(b) and 2( c) of the Act. For drawing the above conclusion
D the detaining authority has also relied upon the statements of the
witnesses whose names are not disclosed.
Assailing the legality of the impugned order the learned counsel
appearing on behalf of the petitioner put forth several contentions one )
of which being that the conclusions drawn by the detaining authority
E that the detenu is a 'bootlegger' as well as a 'dangerous person' are not
supported by the materials placed before him and that there is nothing
to show that the activities of the detenu either affected or were likely
to affect adversely the maintenance of public order.
We shall now deal with the above contention in the light of the _,\
F construction of the expressions 'bootlegger' and 'dangerous person'
read with Section 3( 4) of the Act with the explanation annexed
thereto.
The expression "bootlegger" and "dangerous person" occurring
in Section 2(b) and (c) of the Act read as follows:
G
"2(b) "bootlegger" means a person who distills, manufac- '1
tures, stores, transports, imports, exports, sells or distri-
butes any liquor, intoxicating drug or other intoxicant in
contravention of any provision of the Bombay Prohibition
Act, 1949 (Born. XXV of 1949) and the rules and orders
H made thereunder, or any other law for the time being in
RASHIDMIYA v. POLICE COMMISSIONER AHMEDABAD [PANDIAN, J.] 187
\ force or who knowingly expends or applies any money or
A
supplies any animal, vehicle, vessel or other conveyance or
any receptacle 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 of any such thing;
·y
B
2(c) "dangerous person" means a person, who either, by
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, (XLVof 1860),
or any of the offences punishable under Chapter V of the
'r Arms Act, 1959 (54 of 1959)."
c
To bring the detenu herein within the definition of Section 2(b)
of the Act, four cases are made mention of in the grounds of detention
which we have already extracted. All the four cases were registered in
the year 1988. The trials in respect of two of the four cases were D
pending before the Court and in respect of the other two, the orders
were pending. Notwithstanding the result of those cases and the
quantity of liquor seized from the detenu, we shall examine the legality
_,.;.... of the detention order, in the ensuing part of this judgment, even
assuming that the detenu is a 'bootlegger' within the ambit of Section
-
2(b) of the Act. E
For the conclusions drawn by the detaining authority that the
detenu was a 'dangerous person' as defined under Section 2(c) of the
Act, the detaining authority has taken into consideration the registra-
j .. lion of a case in crime number 2/88 in Kalupur police station. Added to
that, it is generally stated in the grounds of detention that the detenu F
and his associates were beating the people in public and that the
detenu had entered into a conspiracy to spread an atmosphere of fear
and terror in the city of Ahmedabad city being the main member of the
gang of Abdul Latif Abdul Wahab Shaikh. But no specific instance is
given either in the grounds of detention order or in any of the state-
ments of the witnesses. G
'y
To bring a person within the definition of Section 2(c) of the Act
it must be shown that the person either by himself or as a member of or
a leader of a gang habitually commits or attempts to commit or abets
the commission of offences punishable under Chapter XVI or XVII or
XXII of the Indian Penal Code or any of the offences punishable under H
188 SUPREME COURT REPORTS [19891 3 S.C.R.
A Chapter V of the Arms Act. In the case registered in crime No. 2/88 in
Kalupur police station, the detenu is said to have committed offences
under Sections 307, l20-B, 212 of the Indian Penal Code and Section 25
of the Arms Act besides under the provisions of various other Acts.
Though Section 307 falls under Chapter XVI, the offences under Sec-
tions 120-B and 212 fall under Chapters VI and XI of the Indian Penal
B Code respectively. Therefore, these two offences are not covered
under Section 2(c). The offence registered under Section 25 of the
Arms Act falling under Chapter V of the said Act is included within
the said definition clause. But what the section requires is that to bring
a person within that definition, it must be shown that he is habitually
committing or attempting to commit or abetting the commission of
offences enumerated therein. In the instant case, the registration of
c only one case is mentioned under the provisions of Section 307 of !PC
and 25 of the Arms Act falling within the said definition clause. There-
fore, this solitary incident would hardly be sufficient to conclude that
the detenu was habitually committing or attempting to commit or abet-
ting the commission of offences. The general and vague allegations
D made in the grounds of detention that the de_tenu was taking active
part in communal riots and entered into conspiracy to spread an
atmosphere of terror being a member of the gang of Abdul Latif
Abdul Wahab Shaikh in the absence of any specific instance or regist-
ration of any case thereof, cannot be construed as offences falling
under any of the above three chapters of the IPC or Chapter V of the
E Arms Act enumerated under Section 2(c) so as to characterise the
Jetenu as a 'dangerous person'.
Hence we are of the view that the conclusions drawn by the
detaining authority that the detenu is a dangerous person is bereft of
F
sufficient material as required under Section 2(c). Therefore, we hold
that the detenu cannot be termed as a 'dangerous person'.
--l
No doubt as per Section 6 of the Act, grounds of detention are
severable and as such the order of detention should not be deemed to
be invalid or inoperative if one or some of the grounds are invalid. In
the present case, the question for consideration is that even if the
G impugned order cannot be sustained on the ground that the detenu is a
'dangerous person', can it be sustained on the other ground that the 'f
· detenu is a 'bootlegger'. The answer is that the order could be
sustained, provided there are materials to show that the bootlegging
activities of the detenu affected adversely or were likely to affect the
maintenance of public order. A conjoint reading of Section 2(b) and
H Section 3( 4) with the explanation annexed thereto clearly spells out
RASHID MIYA v. POLICE COMMISSIONER AHMED ABAD [PAND!AN, J. i 189
that in order to clamp an order of detention upon a 'bootlegger' under
A
Section 3 of the Act, the detaining authority must not only be satisfied
that the person is a bootlegger within the meaning of Section 2(b) but
also that the activities of the said bootlegger affect adversely or likely
to affect adversely the maintenance of public order. Reverting to the
facts of this case, the '>;ague allegations in the grounds of detention that
the detenu is· the main member of the gang of Abdul Latif Abdul B
Wahab Shaikh indulging in bootlegging activities and that the detenu
is taking active part in such dangerous activities, are not sufficient for
- holding that his activities affected adversely or were likely to affect
adversely the maintenance of public order in compliance with sub-
Section 4 of Section 3 of the Act that the activities of the detenu have
caused harm, danger or alarm or a feeling of insecurity among the
general public or any Section .thereof or a grave or widespread danger c
to life, property or public health as per the explanation to Section 3(4).
The offences registered in the abovementioned four cases against
the detenu on the ground that he was dealing in liquor have no bearing
on the question of maintenance of public order in the absence of any D
other material that those activities of the detenu have adversely
affected the maintenance of public order.
,.)-.._ There is a catena of decisions dealing with the question of
'maintenance of public order'. But we think that it will be sufficient to
make reference to the following two decisions. E
.'!'.. This Court in Ashok Kumar v. Delhi Administration, I1982] 2
sec 403 has observed:
"It is the potentiality of the act to disturb the even tempo of
the life of the community which makes it prejudicial to the F
maintenance of public order."
In a recent decision of this Court in Piyush Kantilal Mehta v. The
Commissioner of Police, Ahmedabad City and Anr., Judgments Today
1988 (4) 703 a question similar to one before us arose for considera-
tion. In that case, the allegations in the grounds of detention were that G
the detenu was a prohibition bootlegger, that he was indulged into the
sale of foreign liquor and that he and his associates indulged in use of
force and violence and also beating innocent citizens by which an
atmosphere of fear was created. In that case the detenu was alleged to
have been caught red-handed possessing English wines with foreign
marks and in the second occasion he was caught while shifting 296 H
!~
190 SUPREME COURT REPORTS [1989] 3 S.C.R.
A bottles of foreign liquor in an Ambassador car. While dealing with that T-
case, this Court observed as follows:
"It is true some incidents of beating by the petitioner had
taken place, as alleged by the witneses. But, such incidents,
in our view, do not have any bearing on the maintenance of
B
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 Section
2(b) of the Act, but merely because he is a bootlegger he
c 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 bootlegger affect adversely or are
likely to affect adversely the maintenance of public order."
The above observation, in our view, will be squarely applicable
D
to the facts of this case, in view of the reasons, we have already
adverted to in the earlier portion of this judgment.
Hence for all the reasons aforesaid, we allow the Writ Petition
and quash the impugned order of detention and direct the detenu to be
set at liberty forthwith.
E
T.N.A. Petition allowed.
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