BENEZIR MOHD Vs. COMMISSIONER OF POLICE

JUDGEMENT

(1.) The petitioner has moved this Court by this petition under Article 226 of the Constitution of India for a writ of Habeas Corpus to quash and set aside the detention order passed against him by the Commissioner of Police, Ahmedabad respondent No. 1 herein in exercise of his powers under section 3(2) of the National Security Act, 1980. It is alleged in the grounds of detention that on April 20, 1985 at about 1.00 p.m. in the afternoon the detenu has collected his colleagues and the residents of the locality near the chawl of Noorbhai and instigated them that Hindus had been setting fire to the shops of their Muslim brothers and have been assaulting them and, therefore, they should take revenge and not keep it lying down. He excited the people to go with him and accordingly they had gone to Rakhial cross-roads with stones in their hands and caused damage to a tailoring shop in the name and style of Rajesh Tailors, whose owner one Veshrambhai Lavjibbai Vaghela was injured in the course of stoning and that an atmosphere of terror prevailed in the locality with the result that the shops were closed down. An offence to that connection had been registered with Gomtipur Police Station being Crime Register No. 197 of 1985 for having committed offences under sections 143, 147, 148, 336, 337 and 427 of the Indian Penal Code. In paragraph 2 of the grounds it is further alleged that the Petitioner used to deal in illicit liquour colam water and LATHTHA near Amrapali Cinema in Gomtipur area in the city of Ahmedabad in the month of March, be had sold these poisonous liqour after obtaining them from his colleagues one Sikandar Chhotumiya with the result that many persons died and suffered injuries. An offence in that connection has been registered in Gomtipur Police Station under Crime Register No. 115/85 for having committed an offence punishable under section 304A of the Indian Penal Code. The first case was under investigation and the second one was pending in the Criminal Court. In paragraph 3, it has been stated that the detenu was a communal minded person and including in activities of inciting Mohmedans against Hindus with a view to cause damage to their person and properties and that it was not possible to take any action under law for these activities as well as per the speradic acts. The detaining authority was, therefore, satisfied that he should be detained with a view to preventing him from acting in a manner prejudicial to the public order.

(2.) It is this order of detention which has been challenged in the present petition.

(3.) Before we deal with the grounds urged by the learned Advocate Mr. Patel on behalf of the detenu- Petitioner, we may dispose of a preliminary objection raised on behalf of the State Government by the learned Public Prosecutor. The preliminary objection is that the present petition is not competent since the petitioner had unconditionally withdrawn the earlier petition being Special Criminal Application No. 537 of 1985 without reserving the liberty to file this fresh petition and, therefore the second petition for habeas Corpus would not be competent before this Court on principles and authority. In support of this contention the learned Public Prosecutor relied on the two decisions of this Court in Ratilal Devabhai Navik v. State of Gujarat and another and followed in the recent decision of this very Bench in between Chandrakant Ambalal Gandhi v. BK. Jha and others2.