Supreme Court of India
SH. MUSTAKMIYA JABBARMIYA SHAIKHversusSH. M.M. MEHTA, COMMISSIONER OF POLICE AND ORS.
- Citation
- 1995 INSC 207
- Decided
- 23 March 1995
- Disposal
- Case Allowed
- Bench
- S C AGRAWAL
Holding
The detention order is invalid because there is no material to establish that the petitioner is habitually engaged in offences under the specified chapters, and thus he is not a "dangerous person" within the meaning of Section 2(C).
Summary
The petitioner was detained under the Gujarat Prevention of Anti-Social Activities Act, 1985 on the basis of several isolated incidents, including a 1993 shooting, alleged harbouring of an offender, assaults on a businessman and a witness, and possession of an unlicensed revolver. He challenged the detention order, arguing that there was no material to show he was a "dangerous person" as defined in Section 2(C) of the Act and that the incidents were stray, affecting only law and order, not public order. The Supreme Court examined the statutory definition of "dangerous person" and the requirement of habitual commission of offences under Chapters XVI or XVII of the IPC or Chapter V of the Arms Act. It held that a single or isolated act cannot establish habit, and the alleged acts did not affect public order nor fell within the specified chapters. Consequently, the Court found no material to satisfy the detaining authority’s satisfaction and declared the detention order invalid. The petition was allowed, the order quashed and the petitioner released.
Issues considered
- Whether the petitioner qualifies as a "dangerous person" within the meaning of Section 2(C) of the Gujarat Prevention of Anti-Social Activities Act, 1985.
- Whether the material placed before the detaining authority is sufficient to satisfy the requirement of habitual commission of offences under Chapters XVI/XVII of the IPC or Chapter V of the Arms Act.
- Whether the alleged incidents constitute a threat to public order as distinguished from mere law and order disturbances.
- Whether the detention order under Section 3(1) of the Act is valid in the absence of such material.
Legislation cited
- Arms Act, 1959s. Chapter V, s. Section 25(1)
- Bombay Police Acts. Section 135(1)
- Constitution of Indias. Article 32
- Gujarat Prevention of Anti‑Social Activities Act, 1985s. 2(C), s. 3(1), s. 3(4)
- Indian Penal Code, 1860s. Sections 307, 452/34, 212, 214 (relevant chapters XI, XVI, XVII)
Subjects
preventive detentiondangerous personpublic orderhabitual offenceGujarat Prevention of Anti-Social Activities ActSection 2(C)Section 3Article 32detention orderarms possessionlaw and order vs public order
Judgment
A SH. MUSTAKMIYA JABBARMIYA SHAIKH
v.
SH. M.M. MEHTA, COMMISSIONER OF POLICE AND ORS.
MARCH 23, 1995
B [S.C. AGRAWAL AND FAIZAN UDDIN, JJ.)
Gujarat Prevention of Anti-Social Activities Act, 1985:
Section 2(C)-'Dangerous Person'-Detention order against-Material --"4
C must suggest that detenu was committing specified offences habitually.
Section 3(1)--Detention order based on:stray and casual criminal ac-
tivities of detenu directed against individuals having no adverse impact on
public order-Offence not specified in part XVI or XVII of /PC-Mere
possession of unlicens~d fire ~rder held invalid-Taking into account
D of a stale criminal activity held not justified-Held alleged activities must
relate to 'Public Order'-'Public Order' and 'Law and Order'-Distinction
between.
Words' and Phrases: ·
E 'Habitually'-Meaning of-Section 2(C) of the Gujarat Prevention of
Anti-Social Activities, 1985.
With a view to preventing the detenu-petitioner from acting in a
manner prejudicial to the maintenance of public order, a detention order
F under Section 3(1) of the Gujarat Prevention of Anti-Social Activities, 1985
·was passed relying on: First, charge under sections 307, 452/34 IPC, 25A(1)
Arms Act and Section 135(1) of Bombay Police Act based on an incident
in which pursuant to an altercation between the petitioner and the younger
brother of the complainant, the petitioner alongwith some of his associate
dragged out the complainant from inside a hair cutting saloon while his
G associates fired four shots injuring the complainant and another person;
Second, charge under sections 212 and 214 IPC for harbouring an
absconding offender; Third, he purchased goods worth Rs. 500 and on
demand of price thereof he dragged and beat the businessman on public ·
road; Fourth, he beat a witness doubting that he was informer of police
H and also pointed revolver towards persons who gathered there; and Fifth;
960
MJ. SHAIKH v. M.M. MEHTA 961
charge under section 25(1) of the Arms Act for possessing an unlicensed A
revolver. On the basis of these cases the detaining authority came to the
conclusion that the petitioner was a dangerous person within the definition
of section 2(C) of the Act and is habitually engaged in committing and
attempting to commit violent activities_ and creating atmosphere of fear.
The petitioner filed a writ petition in this Court challenging the B
validity of order contending that (i) there was no material to indicate that
he was a dangerous person within the meaning of section 2(C); and (ii)
the incidents alleged being stray and individual, have no connection with
public order though they may relate to law and order.
Allowing the writ. petition and quashing the detention order, the
c
Court
HELD: 1. There is no material which may lead to a reasonable and
definite conclusion that the detenu-petitioner was habitually engaged in
criminal activities and, therefore, a dangerous person. The detaining D
authority has passed the impugned detention order without application of
mind. Therefore, it could .not be sustained. (974-C]
2. Section 3 of the Gujarat Prevention of Anti-Social Activities Act,
1985 is intended to deal with such criminals who cannot readily be ap-
prehended to be booked under the ordinary law and who for special reasons, E
cannot be convicted under the penal laws in respect of the offences alleged
to have been perpetrated by them. But this power under the Act to detain a
person should be exercised with restraint and great caution. In order to
pass an order'of detention under the Act apiast any person the detaining
authority must be satisfied that he is a 'dangerous person' within the p
1(# meaning of Section 2(C) of the Act who habitually commits, or attempts to
commit or abets the commission of any of the offences punishable under
Chapter XVI or XVII of the Penal Code or any of the offences punishable
under Chapter V of the Arms Act as according to sub-section (4) of Section
3 of the Act it is such 'dangerous person' who for the purpose of Section 3
shall be deemed '6 be a person 'acting in any manner prejudicial to the G
maintenance of public order' against whom an order of detention may
lawfully be made. In order to bring a person within the expression
'dangerous person' there should be positive material to indicate that such
person is habitually committing or attempting to commit or abetting the
commission of offences and a single oi' isolated cannot be characterised as H
962 SUPREME COURT REPORTS [1995) 2 S.C.R.
A a habi!ual act. [968-D-F, 969·E-FJ
Gopalan Chari v. State of Kera/a, AIR (1981) SC 674 and Vtjay Narain
Singh v. State of Bih01; [1984) 3 SCC 14, referred to.
3. A distinction has to be drawn between law and order and main·
B tenance Qfpublic order because most often the two expressions are confused
and detention orders are passed by the authorities concerned in respect of
the activities of a person which exclusively fall within the domain of law and
order and which have nothing to do with the maintenance of public order.
In order to bring the activities of a person within the expression of 'acting
C 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 &ravel 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
D determines whether the disturbance caused by such activity amounts only
to a breach of'Law and Order' or it amounts to 'Public Order'. [970-D-EJ
A1Un Ghose v. State of West Benga~ [1970) 1 SCC 98 and Piyush
Kantilal Mehta v. Commissioner of Police, [1989) Supp. 1 SCC 322, referred
E to.
4. The first criminal activity was directed against an individual and
from the nature of the incident it is difficult to assume that it gave rise to
public order disturbing the tranquimty of the locality. At the most it was a
crimillal act directed only against an individual which has nothing to do
F with the question of public order. This apart the detention order was passed
after a lapse of more than 16 months of the incident. This long lapse of time
between the alleged prejudicial activity and the detention order loses its
significance because the said prejudicial conduct was not approximate in
point of time and had no rational connection with the conclusion that the
G detention was necessary for maintenance of public order. Such a stale
incident cannot be construed as justifiable ground for passing an order of
detention. [972-A-CJ ...
5. The second incident that the detenu-petitioner was harbouring
offender which is an offence under Sections 212/214 of the I.P.C. and falls
H ,,under .Chapter XI of the IPC, and not under any of the Chapters XVI or
)
MJ.SHAIKHv. M.M.MEHTA[FAIZANUDDIN,J.] 963
XVII which is the requirement of Section 2(C) of the Act. This incident, A
therefore, cannot be made a basis for satisfaction of the detaining authority
) that petitioner is a habitual offender, so as to sustain the order of detention.
[972-G]
6. The third and fourth incidents i.e. those of beating a businessman
and a witness were incidents directed against single individual having no B
adverse effect prejudicial to the maintenance of public order disturbing the
even tempo of life or the peace and tranquillity of the locality. Therefore,
none of the two incidents can be said to be incidents affecting public order
nor from these stray and casual acts the petitioner can be branded as a
dangerous person within the meaning of Section 2(C) of the Act, who was
habitually engaged in activities adversely affecting or likely to affect adver- C
sely the maintenance of public order. [973-D, H; 974-A]
7. Lastly, mere possession of a firearm without anything more cannot
bring a case within the ambit of an act affecting public order as con-
templated in Section 3 of the Act unless ingredients of Section 2(C) of the D
Act are also made out. [974-B]
CRIMINAL ORIGINAL JURISDICTION: Writ Petition (Crl.) No.
335of1994.
(Under Article 32 of the Constitution of India.)
E
Sushil Kumar, Ms. Safia Khan, Shakeel Ahmed and I.G. Mansure Ali
with him for the Petitioner.
S.K. Dhokakia, S.K. Sabharwal, Ms. H. Wahi with him for the
Respondents. p
The following Judgment of the Court was delivered by
FAIZAN UDDIN, J. 1. This writ petition under Article 32 of the
Constitution of India has been filed by the petitioner challenging the
correctness and valldity of the detention order dated 19th August, 1994 G
passed by the Commissioner of Police, Shahibagh, Ahmedabad city, detain-
ing the petitioner ·in exercise of the powers conferred on him under
sub-section (1) of Section 3 of the Gujarat Prevention of Anti-Social
Activities Act, 1985 (hereinafter referred to as the Act) with a view to
preventing the petitioner-detenu from acting in any manner prejudicial to
the maintenance of public order in the area of Ahmedabad city. In pur- H
l.
964 SUPREME COURT REPORTS [1995) 2 S.C.R..
A suance of the said order the petitioner has been detained in jail, .Tunagarh. ·
·(
2. Briefly stated the alleged activities of the detenu - petitioner as set
out in the grounds of detention dated 19th August, 1994 are that the
petitioner was habitually indulging in criminal and anti-social activities in
B the area of Shahpur, Patwasheri area of Teen .Darwaza and Sardar Garden
area of Ahmedabad city by keeping fire-arms, beatmg ·and assaulting
innocent citizens in public and creating an atmosphere of fear and terror
in the said areas. It has been alleged that the four witnesses have stated in
their statement that the detenu - petitioner is a headstrong, fierce and (
habitual criminal and, therefore, nobody comes forward to complain
C against him and the said witnesses have made a request not to disclose
f
their names and identity for fear of the petitioner and, therefore, the names
and identity of the witnesses have not been dif.closed in public interest
under Section 9 (2) of the Act. The relevant criminal activities as alleged
against the detenu-petitioner are precisely detailed herein below:
D Place of Seizure Disposal
s. Date &
occu-
C.R. Nature of
of Incri-
No. Time No. Offence
rrence minating articles
1. 24.4.93 Glamour under Section 307,
6.30 PM Hair 452/34 IPC & 25(1)A.
I
E Dresser Arms Act & Section pending
66/93
Shahpur 135(1). of Bombay
Police Act
2. 11.04.94 Shahpur 212/214 IPC harbo-
10.30AM of DCB uring the absconding
F
7/94
offender of CR No.
-
63/93 of Shahpur
3. 10.08.94 Patwa- purchased goods worth
04.00PM shen - Rs.500 and on demand
Area of of price thereof
G Tin dragging and beating
Darwaza - the businessman on -
public road· and
pointing revolver
1 towards persons
) gathered there
H
MJ. SHAIKH v. M.M. MEHTA [FAIZAN UDDIN, J.) 965
4. 12.08.94 Eastern stopping the witness A
)- 07.00PM Gate and beating him
Sardar doubting that he was
Garden informing police about
- his anti-social activities
and pointing revolver
B
towards persons
gathered there
~I r 5. 14.08.94
07.45PM
DCB
Under Section 25/l Point 34 country
Arms Act. made revolver
19/94
and 4 cartridges
c
3. On the basis of the aforementioned cases and material connected
therewith as well as on the basis of statements of four witnesses the
detaining authority came to the conclusion that the petitioner is an anti-so-
cial element and a dangerous person within the definition of Section 2(C)
of the Act who is habitually engaged in committing and attempting to D
commit violent activities and creating an atmosphere of fear by keeping fire
arms without pass/permit and with a View to preventing the petitioner from
acting in a manner prejudicial to the maintenance of public order passed
the impugned order of detention.
4. Initially Shri Sushil Kumar, learned senior counsel for the E
petitioner canvassed that the petitioner had made representation on
26.8.1993 to the Superintendent, District Jail, Junagarh for onward trans-
mission to the competent authorities for its disposal but the said. repre-
sentation of the petitioner had not been disposed of so far. But Shri P.S.
Vyas, Under Secretary to the Government of Gujarat, Home Department F
(Special) in his affidavit clearly indicated that the petitioner's repre-
sentation dated 26.8.1994 which was submitted by him on 31.8.1994 and
received by the State Government on 5.9.1994 was decided on 6.9.1994 and
since 9.10.94 and 11.9.1994 were holidays the said decision was communi-
cated to the petitioner by letter dated 12.9.1994. Faced with this situation G
it was not possible for the learned counsel to press this ground any further.
5. Learned counsel for the detenu - petitioner, however, strenuously
assailed the impugned order of detention by submitting that there is no
material to indicate that the detenu - ·petitioner is a dangarous person as
defined under Section 2(C) of the Act nor there is any material or any past H
\.
. 966 SUPREME COURT REPORTS (1995) 2 S.C.R.
A history of the detenu or his antecedents to show that the petitioner is
habitually engaged in anti - social activities which may be said to be -(
prejudicial, to the maintenance of public order. He submitted' that the\
petitioner is a married person and maintains a large family by carrying on
lawful business of readymade garments. He further submitted that the
B incident dated 4.11.1994 under Section 212/2141.P.C. regarding the alleged
harbouring of wanted offender does not fall either under Chapter XVI or
Chapter XVII of the I.P.C. as mentioned in Clause (C) of Section 2 of the
Act and, therefore, could not be made a ground in passing the impugned
.order of detention. He also submitted that the incident dated 24.4.1993 is
stale and relates to an individual incident and has no relation or any
C connection with the problem of any public order. He submitted that it may
at the most amount to a stray and individual incident relating to law and
.order. He also submitted that mere possession of the alleged .32 bore
country made revolver with four cartridges without anything more par-
ticularly when the same was found to be rusty and the barrel broken could
D not be said to be in the working order and, therefore, the circumstances
of seizure of the revolver alone cannot lead to create any problem relating
to the public order. ~e also submitted that the incidents dated 10.8.94 and
12.8.94 are also stray and individual incidents absolutely having no relation
with public order. He, therefore, submitted that in the absence of any
material to indicate that the detenu - petitioner was a dangerous person
E habitually committing or attempting to commit or abetting the commission
of any of the offences punishable under Chapter XVI or Chapter XVII of
the IPC or any of the offences punishable under Chapter V of the Arms
Act, the ~pugned order o( det~ntion could not be legally sustained.
F 6. With a view to deal with the aforementioned submissions advanced
by the learned counsel for the petitioner and to examine the legality/validity
of the impugned order of detention it would be appropriate to look into
the relevant provisions of the Act in question under which the detention
order has been passed. It may be pointed out that the Act provides for
preventive detention of bootleggers, dangerous persons, drug offenders,
G immoral traffic offenders and property grabbers for preventing their anti-
social and dangerous activities prejudicial to the maintenance of public
order. In the present case having regard to the grounds of detention the
-y
detaining authority on being satisfied that the detenu - petitioner was a
'dangerous person' within the meaning of clause (C) of Section 2 of the
H Act and passed the order of detention. Section 2(C) of the Act reads as
)
M.J. SHAIKHv. M.M. MEHTA(FAIZAN UDDIN,J.) 967
under: A
"Dangerous person" means a person, and either by himself or as a
member or leader of a gang habitually commits or attempts to
commit or abetes the commission of any of the offences punishable
under Chapter XVI or Chapter XVII of the Indian Penal Code or
any of the offences punishable under Chapter V of the Arms Act, B
1959".
' Here it would also be appropriate to reproduce the relevant part of Section
'
3 of the Act as under:-
-·r c
"3(1).-The State Government may if satisfied with respect to any
person that with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order, it is ne~es-
sary so to do, make an order directing that such person be
detained.".
(2) If having regard to the circumstances prevailing or likely to
D
prevail in any area within the local limits of the jurisdiction of a
District Magistrate or a Commissioner of Police, the State Govern-
·).._ ment is satisfied that it is necessary so to do, it may, by order in
writing, direct that the District Magistrate or the Commissioner of
Police, may also, if satisfied as provided in sub-section (1) exercise E
the powers conferred by the said sub-section".
(3) ··············
(4) For the purpose of this section, a person shall be deemed to
be 'acting in any manner prejudicial to the maintenance of public F
order when such person is engaged in or is making preparation
Ir--< for engaging in any activities whether as a bootlegger or dangerous
' person or drug offender or immoral traffic offender or property
_i__ grabber, which affect adversely or are likely to affect adversely the
maintenance of public order."
G
Explanation. - For the purpose of this sub-section, public order
y- shall be deemed to have been affected adversely or shall be
deemed likely to be affected adversely inter alia 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 H
968 SUPREME COURT REPORTS [1995] 2 S.C.R.
A or feeling of insecurity among the general public or any section
thereof or a grave or widespread danger to life, property or public
health.
7. A reading of the preamble of the Act will make it clear that the
object of provisions contained in the Act including those reproduced above
B is to prevent the crime and to protect the society from anti-social elements
and dangerous characters against perpetration of crime by placing them
under detention for such a duration as would disable them from resorting
to undesirable criminal activities The provisions of the Act are intended to
deal with habitual criminal dangerous and desperate outlaws who are so
. C hardened and incorrigible that the ordinary provisions of the penal laws
and the moral fear of punishment for crime are not sufficient deterrents
-/
for them. Section 3 of the Act is, therefore, intended to deal with such
criminals who cannot readily be apprehended to be booked under the
ordinary law and who for special reasons, cannot be convicted under the
D penal laws in respect of the offences alleged to have been perpetrated by
them. But this power under the Act to detain a person should be exercised
with restraint and great caution. In order to pass an order of detention
under the Act against any person the detaining authority must be satisfied
that he is a 'dangerous person' within the meaning of Section 2(C) of the
E Act who habitually commits, or attempts to commit or abetes the commis-
sion of any of the offences punishable under Chapter XVI or XVII of the
Penal Code or any of the offences punishable under Chapter V of the Arms
Act as according to sub-section (4) of Section 3 of the. Act .it is such
'dangerous person' who for the purpose of Section 3 shall be deemed to
be a person 'acting in any manner prejudicial. to the maintenance of public
F order' against whom an order of detention may lawfully be made.
8. The Act has defined 'dangerous person' in clause (C) of Section
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 abetes the commis-
G sion of any of the offences punishable under the chapteri; XVI or 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
Iyyar, Reprint Edition 1987 page 499 'habitually' means constant, cus-
H tomary & addicted to specified habit and the term habitual criminal may ·
)
M.J.SHAIKHv. M.M.MEHTA[FAIZANUDDIN,J.) 969
be applied to any one who has been previously convicted of a crime to A
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 Edition
- page 485. It does not refer to the frequency of the occasions but to the
invariability of practice and the habit has ·to be proved by totality of facts. B
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. In Gopalan Chari v.. State of Kerula, AIR C
(1981) SC 674 this Court had an occasion to· deal with expressions like
'bad habit', 'habitual', 'desperate', 'dangerous', and 'hazardous'. This
Court observed that the word habit implies frequent and usual practice.
Again in Vijay Narain Singh v. State of Bihar, [1984] 3 SCC 14, this Court
construed the expression 'habitually' to mean repeatedly or persistently D
and observed that it implies a thread of continuity stringing together
similar repetitive acts but not isolated, individual and dissimilar acts and
that repeated, persistent and similar acts are necessary to justify an
inference of habit. It, therefore, necessarily follows that in order to bring
· a person within the expression 'dangerous person' as defined in clause
(C) of Section 2 of the act, there should be positive material to indicate E
that such person is habitually committing or attempting to commit or
abeting the commission of offences which are punishable under Chapter
XVI or XVII of the I.P.C. or under Chapter V of the Arms Act and that
a single or isolated act falling under Chapters XVI or XVII of I.P.C. or
Chapter V of Arms Act cannot be characterised as a habitual act referred F
to in Section 2(C) of the Act.
L_ 9. Further, sub-section (1) of Section 3 of the Act confers power on
the State Government and a District Magistrate or a Commissioner of
Police under the direction of the State Government to detain a person on G
being satisfied that it is necessary to do so with a view to preventing him
from acting in any manner prejudicial to the maintenance of 'public order'.
The explanation attached to sub-section (4) of Section 3 reproduced above
in the foregoing para contemplates that 'public order' shall be deemed to
have been affected adversely oi; shall be deemed likely to be affected H
\
970 SUPREME COURT REPORTS [1995] 2 S.C.R.
A adversely inter-alia if any of the activities of any pe~son referred to in
sub-section ( 4) directly or indirectly, are causing or is likely to cause any
harm, danger or alarm or feeling of insecurity among the general public or
any section thereof or a grave or widespread danger to life, property or
public health. Sub-section (4) of Section 3 also provides that for the
B purpose of Section 3, a person shall be deemed to be 'acting in any manner
prejudicial to the maintenance of public order' when such person is a
'dangerous person' and engaged in activities which affect adversely or more
likely to affect adversely the maintenance of public order. It, therefore,
becomes necessary to determine whether besides the person being a
(
c 'dangerous person' his alleged activities fall within the ambit of the expres- I
sion 'public order'. A distinction has to be drawn between law and order
and maintenance of public order beta.use most often the two expressions
are confused and detention orders are passed by the authorities concerned
in respect of the activities of a person which exclusively fall within the
domain of law and order and which have nothing to do with the main-
D tenance of public order. In this connection it may be stated 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 for such a nature that
they travel beyond the capacity of the _ordinary law to deal with him or to
E 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 deter-
mines whether the disturbance caused by such activity amounts only to a
'breach of law and order~ or it amounts to 'public otder.' It the activity falls
F within the category of disturbance of 'public order' then it becomes essen-
tial to treat such a criminal and deal with him differently than an ordinary
criminal under the law as his activities would fall beyond the frontiers of
law and order, disturbing the even tempo of life of the community of the
specified loc~ity. In the case of Amn GhQse v. State of West Bengai (1970]
G 1 sec 98 this Court had an occasion to deal with the distinction between
law and order and public order. Hidayatullah, CJ. (as he then was),
speaking for the Court observed that public order would embrace more of
the community than law and order. Public order is the even tempo of the
life of the community taking the country as a whole or even a specified
H locality. Disturbance of public order is to be distinguished from acts
)
M.J.SHAIKHv. M.M.MEHTA(FAIZANUDDIN,J.] 971
directed against individuals which do not disturb the society to the extent A
of causing a general disturbance of public transquillity. It is the degree of
disturbance and its affect upon the life of the community in a locality which
determines whether the disturbance amounts only to breach of law and
order. It has been further observed that the implications of public order
are deeper and it affects the even tempo of life and public order is B
jeopardized because the repercussions of the act embrace large sections of
the community and incite them to make further breaches of the law and
order and to subvert the public order. An act by itself is not determinant
' r
of its own gravity. In its quality it may not differ from another but in its
potentiality it may be very different. Again in the case of Piyush Kantilal
Mehta v. Commissioner of Police, (1989) Supple. 1 SCC 322, this Court took C
the view that in order that an activity 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 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 D
direct bearing on the question of maintenance of public order. The com-
mission of an offence will not necessarily come within the purview of public
order which can be dealt with under ordinary general law of the land.
10. Now reverting to the grounds of detention and the summary of E
incidents alleged against the petitioner as mentioned in the beginning of
this judgment, it may be stated that the first incident is said to have taken
place on 24.4.1993 at about 6.45 PM in which the detenu - petitioner
alongwith some of his associates is alleged to have dragged out the
complainant, one Mohd. Hussain from inside the Hair Cutting Saloon of
Shahpur and associates of the petitioner fired four rounds from the F
revolver injuring the complainant and one another customer. The report
lodged by the complainant Mohd. Hussain himself on 24.4.1993, a copy
of which has been placed on record, goes to show that a day earlier, that
is on 23.4.1993 at about 9.30 PM there was a quarrel between Amjad
Khan, the younger brother of the complainant Mohd. Hussain and the G
petitioner upon sounding the scooter horn in the gali of the house of the
y- petitioner and it was in that connection that next day i.e. on 24.4.1993
the alleged incident of assault by the petitioner and his associates to the
complainant Mohd.. Hussain took place. From the narration of facts in
H
972 SUPREME COURT REPORTS (1995] 2 S.C.R.
A the said complaint it is abundantly clear. that the criminal activity was
direeted against an individual and from the nature of the incident it is
difficult to assume that it gave rise to public order disturbing the
{
tranquillity of the locality. At the most it was a criminal act directed only
against an individual which has nothing to do with the question of public
B order. It appears that it was on account of the earlier day incident that
the petitioner made a plan alongwith his associates to teach a lesson to
the complainant by assaulting him when he was seen in the Hair Cutting
Saloon on 24.4.1993. This apart the incident had occurred on 24.4.1993
while the detention order was passed on 19.8.1994 after the lapse of more
C than 16 months. This long lapse of time ·between the alleged prejudicial
activity and the detention order loses its significance because the said
prejudicial conduct was not approximate in point of time and had no
rational connection with the conclusion that the detention was necessary
for maintenance of public order. Such a stale incident can not be
D construed as justifiable ground for passing an order of detention. The
second incident dated 11.4.1994 was that the detenu - petitioner was
harbouring offender which is an offence under Sections 212/214 of the
I.P.C. An offence under Section 212/214 of the I.P.C. cannot be made a
basis for passing an order of detention against the petitioner as the said
offence does not fall either under Chapters XVI or XVII of the l.P.C.
E In order to bring a person within the definition of Section 2(C} of the
Act it is essential to show that such 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 of the Indian Penal Code or any of the offenc,:es punishable
F under Chapter V of the Arms Act. But as pointed out earlier the offence
registered against petitioner under F.l.R. of CR.No. 7/94 of DCB dated
11.4. 1994 is one under Sections 212/214 of the l.P.C. which falls under
Chapter XI of the I.P,C. and not under any of the chapters XVI or XVII
which is the requirement of Section 2(C) of the Act. This incident,
G therefore, can not be made a basis for satisfaction of the detaining
authority that petitioner is a habitual offender, so as to sustain the order
of detention.
11. This brings us to criminal activities of the detenu - petitioner
H which are said to have taken place on 10.8.1994 at 4.00 PM and on
J
M.J. SHAIKH v. M.M. MEHTA [FAIZAN UDDIN, J.] 973
12.8.1994 at 7.00 PM. In the incident dated 10.8.1994 the petitioner is A
alleged to have purchased goods worth Rs. 500 from a businessman and
on the demand of the price of the goods, the petitioner is alleged to have
dragged him out on th.e public road and not only gave a beating to him but
also aimed his revolver towards the people gathered over there. Similarly
it is alleged that on 12.8.1994 at about 7.00 PM the detenu - petitioner B
stopped the witness on the road near eastern side of Sardar Garden and
beat him as the petitioner doubted that he was informing the police about
the anti-social activities of the petitioner and his associates. The petitioner
is also alleged to have rushed towards the people gathered there with the
revolver. Taking the aforesaid two incidents and the allegations on their
face value as they are, it is difficult to comprehend that they were the C
incidents involving public order. They were incidents directed against
single individuals having no adverse affect prejudicial to the maintenance
of public order disturbing the even tempo of life or .the peace and tran-
quillity of the locality. Such casual and isolated incidents can hardly have
any implications which may affect the even tempo of life or jeopardize the D
public order an incite people to make further breaches of the law and order
which may result in subversion of the public order. As said earlier the Act
by itself is not determinant of its own gravity but it is the potentiality of the
act which matters.
12. The alleged incident dated 12.8.1994 relating to the beating of E
some person on suspicion that he was informing the police about criminal
activities of the petitioner, the allegation is sweeping without any material
to support it. Neither any timely report appears to have been made about
it to the police nor any offence appears to have been registered against the
detenu - petitioner concerning the said incident. There remains the solitary f
incident dated 10.8.1994 pertaining to the alleged beating of a businessman
which as said earlier directed was against an individual having no adverse
impact on public at large. Besides, the solitary incident dated 10.8.1994
alone would not provide a justification to hold that the petitioner was
habitually committing or attempting to commit or abetting the commission
of offences as contemplated in Section 2(C) of the Act because the G
expression 'habitually' postulates a thread of continuity in the commission
of offence repeatedly and persistently. However, in our considered opinion
none of the aforementioned two incidents can be said to be incidents
affecting public order nor from these stray and casual acts the petitioner
can be branded as a dangerous person within the meaning of Section 2(C) H
974 SUPREME COURT REPORTS [1995) 2 S.C.R.
A of the Act, who was habitually engaged in activities adversely affecting or
likely to affect adversely the maintenance of public order: Similar is the
position with regard to the recovery of .32 bore country made revolver from
the possession of the petitioner without any permit or licence which is an
offence under Section 25 of the Arms Act. The said revolver was found to
B be rusty-"and had a ~roken barrel. Mere possession of a firearm without
anything more cannot bring a case within the ambit of an act affecting
public order as contemplated in Section 3 of the Act unless ingredients of
Section 2(C) of the Act are also made out. From the facts discussed above
it turns out that there was no material which may lead to a reasonable and
definite conclusion that the detenu - petitioner was habitually engaged in
' C crimitial activities and, therefore, a dangerous person. The detaining
-./
authority thus passed the impugned order of detention against the
· petitioner without application of mind on the aforesaid aspects of the case
and, therefore, the detenti.on order could not be sustained.
13. Consequently, we allow the writ petition and quash the impugned
. D order of detention and direct that the petitioner be released forthwith.
T.N.A. Petition allowed.
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