RAKESHKUMAR Vs. DEPARTMENT OF HOME

JUDGEMENT

(1.) Based upon the offence registered against the petitioner in three First Information Reports as also the statements of the witnesses recorded therein, the petitioner has been detained as a dangerous person under the Gujarat Prevention of Antisocial Activities Act.

(2.) This Court on consideration of the rival submissions, is of the opinion that the impugned order cannot be sustained in view of the decision rendered in Special Civil Application No.7241 of 2020 pointing out the difference between the disturbance of public order and the law and order. Gujarat Prevention of Antisocial Activities Act provides for detention of a habitual offender or a person habitually making attempts or habitually abetting the commission of offence. Such a person would form class different than others who are not habitual offenders or do not form the habit to attempt or abetting the commission of offence. Bearing such distinction in mind the provision in Section 2(c) of the Act defining dangerous person has been made. Thus the person would be a dangerous person as indicated above if he habitually commits or habitually attempts or habitually abet the commission of any of the offences in relation to the human body or the offence against the property. It would thus be a habit which would distinguish the acts of a dangerous person falling under Chapter 16 and 17 of the IPC than those of others. Although the expression habit has not been defined under the Act; going by its dictionary meaning, it would mean a settled or regular tendency or practice especially one that is hard to give up. Tendency and practice is nothing but an urge of a person to act or feel in a particular manner. It is such inclination or tendency or urge to act which would lend him into an offence. It is thus such tendency or practice which will distinguish the dangerous person from the ordinary offender. The tendency, practice or habit would be obvious in general conduct of such a person and the material in support thereof can be easily gathered from his victims. However, reaction of a person to particular situation eventually lending him into an offence cannot be classified as an act of dangerous person in absence of his conduct as a dangerous person as explained above, even if such reaction may be frequent in different situations at different points of time or places. It is thus the character of a person sought to be detained in conducting himself in the society rather than the commission of offence would be relevant for the purpose of Section 2 (c) of the Act.

(3.) The powers for detention of a person have been contemplated in Section 3 of the Act. As indicated above the phrase "public order" carries different meaning than the "law and order". Before any order under Section 3(1) it must necessarily be shown that the object of detention is the maintenance of public order. The very acts of a dangerous person would be prejudicial to the maintenance of public order and therefore preventive detention would be warranted but if it is the question of law and order only, the ordinary law would be the only remedy and the preventive detention would be unwarranted.