PETITIONER:
PIYUSH KANTILAL MEHTA
Vs.
RESPONDENT:
COMMISSIONER OF POLICE, AHMEDABAD CITY AND ANOTHER
DATE OF JUDGMENT16/12/1988
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
NATRAJAN, S. (J)
CITATION:
1989 AIR 491 1988 SCR Supl. (3)1081
1989 SCC Supl. (1) 322 JT 1988 (4) 703
1988 SCALE (2)1583
CITATOR INFO :
APL 1989 SC1703 (20)
F 1990 SC 496 (3 TO 7,10,11)
RF 1992 SC 979 (15,16,21)
ACT:
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- Activities should effect adversely maintenance of
public order.
%
Constitution of India, 1950- Article 32- Detention
Order- Assailment of- Permissible by writ petition even
though representation of detenu pending before Advisory
Board.
HEADNOTE:
The petitioner filed a writ petition challenging the
legality of the order of his detention passed by the
respondent under 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 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 activities either affected or
are likely to affect adversely the maintenance 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 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.
PG NO 1081
PG NO 1082
HELD: A person may be very fierce by nature, but so long
as the public generally are not affected by his activities
on conduct, the question of maintenance of public order will
not arise. 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 direct bearing on the question of
maintenance of public order. [1089H; 1090A-B]
The Commission of an offence will not necessarily come
within the purview of `public order’. [1090B]
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 substantiate that the alleged anti-social activities of
the petitioner adversely 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;
1091A]
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 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 the maintenance of public order. [1091B]
Even though a representation is pending before the
Advisory Board, the writ petition under Article 32 of the
Constitution is maintainable before the Court. [1086B]
Prabhu Dayal Deorah v. The District Magistrate, Kamrup,
[1974] 1 S.C.C. 103, relied on.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 403
of 1988.
(Under Article 32 of the Constitution of India)
Dr. Y.S. Chitale, Yatin N. Oza, P.H. Parekh and Sunil
Dogra for the Petitioner.
PG NO 1083
P.S. Poti, Mrs. H. Wahi and M.N. Shroff for the
Respondents.
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 by the Commissioner of Police,
Ahmedabad City, under sub-section (2) 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 Prevention
of Anti-social Activities Act, 1985, Shri Piyush Kantilal
Shah is hereby informed the grounds of detention as under:
You are indulging into anti-social activities by
hoarding illegal foreign liquor and also selling it through
yourself and through your servants near Navrangpura
Municipal Bus-stand and Navrang High School, Ahmedabad that
the cases have been registered against you under Bombay
Prohibition Act, 1949 and in which you have been arrested.
Sr. Police Stn. C.R. Sections Qty. seized Result
No. No.
1. Navrangpura 62/88 Prohibition 21795 Pending.
2. Navrangpura 114/88 Act-66(b) ML Ltr. Pending
65(a) foreign investi-
(e), 81 Liquor. gation
Proh. Act 139750
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 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 the 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
PG NO 1084
activities, you are causing hindrance to maintenance of
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 anything against you
and also do not file complaint against 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
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.
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,
you continue to indulge into illegal sale of liquor and you
create an atmosphere of fear and terror by beating innocent
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
possibilities 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.”
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 possessing English wines with
foreign marks without any legal pass or permission to do so
on April 13, 1988. In the second case being case No. 114/88,
the offence, as alleged to have been committed by the
PG NO 1085
petitioner and as recorded in the FIR, is that he was caught
while 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 prohibition bootlegger, and that by
indulging in use of force and violence 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 witnesses Nos. 1 to 5, have been recorded before the
order of detention 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 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 whether in view of the pendency of the representation
before the Advisory Board, the writ 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:
“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
Constitution. The detenu has a right under Article 22(5) of
the 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 under
PG NO 1086
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 that even though a representation is pending
before the Advisory Board, the writ petition under Article
32 of the Constitution is maintainable before this Court. In
the Circumstances, we may proceed to dispose of the writ
petition on merits.
In the detention order, the petitioner has been named as
Piyush Kantilal Shah. According to the petitioner, he is
Piyush Kantilal Mehta and not Piyush Kantilal Shah. It is
alleged by the petitioner that the detaining authority has
deliberately and mala fide detained him with a view to
saving one Piyush Kantilal Shah. In order to substantiate
that his name is not Piyush Kantilal Shah, but Piyush
Kantilal Mehta, the petitioner has filed certain Income Tax
Challans, returns, a 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.
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 Kantilal 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, Navrangpura Police Station, Ahmedabad City. It is
submitted that the 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 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 detaining
authority will force the petitioner to sign his name as
Piyush Kantilal Shah, if really his name is Piyush Kantilal
Mehta. 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 himself had
signed his name as Piyush Kantilal Shah.
PG NO. 1087
In the grounds of detention, the relevant portions of
which have been extracted above, it has been alleged that
the petitioner is a prohibition bootlegger and indulged in
the sale of foreign liquor in the area in question and
continues his anti-social activities. A bootlegger has been
defined in section 2(b) of the Act as follows:
“2(b). `bootlegger’ means a person who distills,
manufactures, stores, transports, imports, exports, sells or
distributes any liquor, intoxicating drug or other
intoxicant in contravention of any provision of the Bombay
Prohibition Act, 1949 and the rules and orders made
thereunder, or of any other law for the time being in force
or who knowingly expends or applies any money or 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.”
Now we may refer to section 3 of the Act providing for
making orders detaining certain persons. Section 3 reads as
follows:
“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 necessary so to do, make an order
directing that such person be detained.
(2) If, having regard to the circumstances prevailing or
likely to prevail in any area within the local limits of the
jurisdiction of a District Magistrate or a Commissioner of
Police, the State Government is satisfied that it is
necessary so to do, it may, by order in writting, direct
that the District Magistrate or the Commissioner of Police,
may also, if satisfied as provided in sub-section (1),
exercise the powers conferred by the said sub-section.
(3) When any order is made under this section by an
authorised officer he shall forthwith report the fact to the
State Government, together with the grounds on which the
order has been made and such other particulars as, in his
opinion, have a bearing on the matter, and no such order
shall remain in force for more than twelve days after the
PG NO 1088
making thereof, unless, in the meantime, it has been
approved 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 in
or is making preparation for engaging in any activities
whether as a bootlegger or dangerous person or drug offender
or immoral traffic offender or property grabber, which
affect adversely or are likely to affect adversely the
maintenance of public order.
Explanation.- For the purpose of this sub-section,
public order 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 or feeling of
insecurity 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) 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
provision will not be attracted unless the activities of the
person concerned affect adversely or are likely to affect
adversely the maintenance of public order.
It is urged by Dr. Chitale, learned Counsel appearing on
behalf of the petitioner, that the grounds of detention are
vague and there is 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 activities of the petitioner
affect or are likely to affect adversely the maintenance of
public order.
PG NO 1089
In the grounds of detention, two criminal cases have
been 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 caught while travelling in an Ambassador car
with 296 bottles containing 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.
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 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 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 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 general in character and do not
involve the question of public order. Counsel submits that
there is a distinction between `law and order’ and ‘public
order . The allegations made against the petitioner may give
rise to a question of law and order but, surely, they have
nothing to do with the question 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 the
PG NO 1090
maintenance of public order, there must be materials 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 direct bearing on the question of maintenance of
public order. The commission of an offence will not
necessarily come within the purview of `public order’.
In this connection, we may refer to a decision of this
Court in Pushkar Mukherjee v. State of West Bengal, [1969] 2
SCR 635 where the distinction between `law and order’ and
`public order’ has been clearly laid down. Ramaswami, J.
speaking for the Court observed as follows:
“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
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 disorder. Such cases are dealt with under the powers
vested in the executive authorities under the provisions of
ordinary criminal law but the culprits cannot be detained on
the ground that they were disturbing public order. The
contravention of any law always affects order but before it
can be said to affect public order, it must affect the
community 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
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 leading
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 Act.”
In the instant case, the detaining authority, in our
opinion, has failed to substantiate that the alleged anti-
social activities of the petitioner adversely affect 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
PG NO 1091
incidents, in our view, do not have any bearing on the
maintenance of 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 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
We have carefully considered 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 insecurity or panic or terror among the
members of the public of the area in question giving rise to
the question of maintenance of public order. The order of
detention cannot, therefore, be upheld.
Coming back to the question of vagueness of the grounds,
it is submitted by Mr. Poti, learned Counsel appearing on
behalf of the respondents, that the grounds are not vague,
and that they are supported by the statements of the
witnesses. In our opinion, the statements 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 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 particulars
to enable the petitioners to make an adequate representation
against the order of detention and it infringed the
Constitutional safeguard provided under Article 22(5) of the
Constitution of India. In the instant case, the grounds of
detention are more or less similar to the grounds in Pushkar
Mukherjee’s case (supra). The statements of witnesses do
not, in our opinion, remove the vagueness of the grounds.
Some other grounds have been urged by Dr. Chitale with a
view 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.
PG NO. 1092
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.