Navin vs State Of U.P. And 4 Others
2021 Latest Caselaw 10804 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 86
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 21261 of 2019
 

 
Petitioner :- Navin
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Raj Narayan Tiwari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Umesh Kumar,J.

The present writ petition has been filed by the petitioner with the prayer to issue a writ, order or direction in the nature of certiorari for quashing the judgement and order dated 31.07.2019 passed by respondent no.2 in Appeal No. 000867 of 2019 (Computerized Case No.C201911000000867) (Navin Versus State of U.P.) as well as order dated 25.03.2019 and impugned notice dated 06.09.2018 issued by the respondent no.3 under Section 3(1) of the U.P. Control of Goonda Act, 1970 (in short 'the Act'), Police Station Jarcha, District Gautam Budh Nagar. Further, to issue, writ, order or direction in the nature of Mandamus directing respondents not to take coercive action against the petitioner pursuant to the aforesaid impugned orders and notice.

Heard Shri Raj Narayan Tiwari, learned counsel for the petitioners and the learned AGA appearing for the State-respondents.

It was submitted by the learned counsel for the petitioner that show-cause notice issued against the petitioner suffer from the vice of total application of mind. It was next submitted that neither the petitioner has criminal antecedents nor he has been involved in any anti-social activity, except the solitary case shown in the notice. The show-cause notice was issued against the petitioner only on the ground of his involvement in a solitary case. Thus, the petitioner does not come within the meaning of Goonda as defined under Section 2(b) of the Act. The petitioner filed his objection to the show cause notice but the respondent no.3 rejected the same and passed the impugned order. Aggrieved with the said order, the petitioner filed appeal before the Commissioner, Meerut Division, Meerut (respondent no.2), which was also dismissed affirming the order passed by the respondent no.2. Learned counsel for the petitioner further submitted that a Division Bench of this Court in the case of Imran alias Abdul Qudus Khan Versus State of U. P. and others reported in 2000 (Suppl.) ACC 171 (HC) has taken the view that for a person to be a "Goonda" under sub-clause (i) (b) of the Act is to be a person who has to his credit repeated / persistent overt acts not isolated and individual act and in view of the above, the impugned orders are liable to be quashed. In support of his submissions, learned counsel for the petitioner has also placed reliance on the decision of this Court in Rajan Mittal vs. State of U.P. And others, 2008 (62) ACC 622.

Per contra, learned A.G.A. submitted that the petitioner failed to make out any case for quashing the impugned orders. It was further submitted that a single act or omission is enough to treat the person concerned as an anti-social element. There is no illegality or infirmity in the impugned orders warranting interference by this Court.

I have considered the rival submissions made by the learned counsel for the parties and perused the impugned orders, the other materials brought on record and the case laws cited by learned counsel for the petitioners in support of his submissions.

The law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.

A Division Bench of this Court in the case of Imran alias Abdul Qudus Khan (supra) while examining the question whether a person can be labelled as 'Goonda' and notice under Section 3(3) of the U.P. Control of Goondas Act can be clamped upon him only on the basis of a solitary incident has, in paragraph nos. 11, 12, 13 and 14 of its aforesaid judgment, observed as under :-

"11. Ex facie, a person is termed as a 'goonda' if he is a habitual criminal. The provisions of section 2 (b) of the Act are almost akin to the expression 'anti social element' occurring in section 2 (d) of Bihar Prevention of Crimes Act, 1981. In the context of the expression 'anti social element' the connotation 'habitually commits' came to be interpreted by the apex court in the case of Vijay Narain Singh V. State of Bihar and others (1984) 3 SCC-14. The meaning put to the aforesaid expression by the apex court would squarely apply to the expression used in the Act, in question. The majority view was that the word 'habitually' means 'repeatedly' or 'persistently'. It implies a thread of continuity stringing together similar repetitive acts. Repeated, persistent and similar but not isolated, individual and dissimilar acts are necessary to justify an inference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions. Even the minority view which was taken in Vijay Narain's case (supra) was that the word 'habitually' means 'by force of habit'. It is the force of habit inherent or latent in an individual with a criminal instinct with a criminal disposition of mind, that makes a person accustomed to lead a life of crime posing danger to the society in general. If a person with criminal tendencies consistently or persistently or repeatedly commits or attempts to commit or abets the commission of offences punishable under the specified chapters of the Code, he should be considered to be an 'anti social element'. There are thus two views with regard to the expression 'habitually' flowing from the decision of Vijay Narain's case (supra). The majority was inclined to give a restricted meaning to the word 'habitually' as denoting 'repetitive' and that on the basis of a single act cannot be said to be forming the habit of the person. That is to say, the act complained of must be repeated more than once and be inherent in his nature. The minority view is that a person in habitual criminal who by force of habit or inward disposition inherent or latent in him has grown accustomed to lead a life of crime. In simple language, the minority view was expressed that the word 'habitually; means 'by force of habit'. The minority view is based on the meaning given in stroud's Judicial Dictionary, Fourth Ed. Vol. II? 1204-habitually requires a continuance and permanence of some tendency, something that has developed into a propensity, that is, present from day to day. Thus, the word- 'habitual' connotes some degree of frequency and continuity.

12. The word 'habit' has a clear well understood meaning being nearly the same as 'accustomed' and cannot be applied to single act. When we speak of habit of a person, we prefer to his customary conduct to pursue, which he has acquired a tendency from frequent repetitions. In B.N. Singh V. State of U.P.AI.R. 1960-Allahabad ?754 it was observed that it would be incorrect to say that a person has a habit of anything from a single act. In the Law Lexicon ? Encyclopedic Law Dictionary, 1997 Ed. by P. Ramanatha Aiyer, the expression 'habitual' has been defined to mean as constant, customary and addicted to a specified habit; formed or acquired by or resulting from habit; frequent use or custom formed by repeated impressions. The term 'habitual criminal', it is stated may be applied to any one, who has been previously more than twice convicted of crime, sentenced and committed to prison. The word 'habit' means persistence in doing an act, a fact, which is capable of proof by adducing evidence of the commission of a number of similar acts. 'Habitually' must be taken to mean repeatedly or persistently. It does not refer to frequency INDIAN LAW REPORTS 6 ALLAHABAD SERIES [2000 of the occasions but rather to the invariability of the practice.

13. The expression 'habitual criminal' is the same thing as the 'habitual offender' within the meaning of section 110 of the Code of Criminal Procedure, 1973. This preventive Section deals for requiring security for good behavior from 'habitual offenders'. The expression 'habitually' in the aforesaid section has been used in the sense of depravity of character as evidenced by frequent repetition or commission of offence. It means repetition or persistency in doing an act and not an inclination by nature, that is, commission of same acts in the past and readiness to commit them again where there is an opportunity.

14. Expressions like 'by habit' 'habitual' 'desperate' 'dangerous' and 'hazardous' cannot be flung in the face of a man with laxity or semantics. The court must insist on specificity of facts and a consistent course of conduct convincingly enough to draw the rigorous inference that by confirmed habit, the petitioner is sure to commit the offence if not externed or say directed to take himself out of the district. It is not a case where the petitioner has ever involved himself in committing the crime or has adopted crime as his profession. There is not even faint or feeble material against the petitioner that he is a person of a criminal propensity. The case of the petitioner does not come in either of the clauses of Section 2 (b) of the Act, which defines the expression 'Goonda'. Therefore, to outright label bona fide student as 'goonda' was not only arbitrary capricious and unjustified but also counter productive. A bona fide student who is pursing his studies in the Post Graduate course and has never seen the world of the criminals is now being forced to enter the arena. The intention of the Act is to afford protection to the public against hardened or habitual criminals or bullies or dangerous or desperate class who menace the security of a person or of property. The order of externment under the Act is required to be passed against persons who cannot readily be brought under the ordinary penal law and who for personal reasons cannot be convicted for the offences said to have been committed by them. The legislation is preventive and not punitive. Its sole purpose is to protect the citizens from the habitual criminals and to secure future good behavior and not to punish the innocent students. The Act is a powerful tool for the control and suppression of the 'Goondas'; it should be used very sparingly in very clear cases of 'public disorder' or for the maintenance of 'public order'. If the provisions of the Act are recklessly used without adopting caution and discretion, it may easily become an engine of oppression. Its provisions are not intended to secure indirectly a conviction in case where a prosecution for a substantial offence is likely to fail. Similarly the Act should not obviously be used against mere innocent people or to march over the opponents who are taking recourse to democratic process to get their certain demands fulfilled or to wreck the private vengeance."

Thus, what follows from the above is that a person can be termed as Goonda and clamped with a show-cause notice under Section 3(3) of the Act when there is material indicating that he either by himself or as a member or leader or a gang, habitually commits or attempts to commit, or abets the commission of offences punishable under Sections 153, 153B or Section 294 I.P.C. or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the I.P.C. or has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or under the U.P. Excise Act, 1910 or the Public Gambling Act, 1867 or Section 25, Section 27 or Section 29 of the Arms Act, 1959 is generally reputed to be a person who is desperate and dangerous to the community or has been habitually passing indecent remarks or teasing women or girls as tout.

In the present matter, I find that the show-cause notice was issued by the respondent no. 3 against the petitioner on the basis of his involvement in only one case, namely Case Crime No.0064 of 2018, under Sections 354, 354A I.P.C. and Section 7/8 of The Protection of Children From Sexual Offences Act registered at Police Station Jarcha, District-Gautam Budh Nagar.

From the above facts and discussions, it appears that the respondent no. 3 without applying his judicial mind and observing the provisions of law has issued the show-cause notice under the Act in a routine, casual and mechanical manner and passed the impugned impugned notice dated 06.09.2018 and order dated 25.03.2019. The appellate authority, i.e. Commissioner, Meerut Division, Meerut (respondent no. 2) also did not consider these facts and dismissed the appeal filed by the petitioner affirming the order passed by the respondent no.3.

There is nothing in the show-cause notice which may indicate that the petitioner falls within the ambit of 'Goonda' as defined under Section 2(b) of the Act.

Thus, the impugned notice dated 06.09.2018 and orders dated 25.03.2019 and 31.07.2020 passed by the courts below / authorities concerned suffer from inherent infirmity and illegality and cannot be sustained.

The writ petition succeeds and is allowed. The impugned notice dated 06.09.2018 and orders dated 25.03.2019 and 31.07.2020 are hereby quashed.

No order as to costs.

Order Date :- 25.8.2021

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