Asif v. State of U.P. and 3 Others

Court No. - 80 Case :- CRIMINAL MISC. WRIT PETITION No. - 9363 of 2023 Petitioner :- Asif Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sharad Srivastava Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.

¶1Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.

¶2The present writ petition (under Article 226 of the Constitution of India) has been moved with prayer to quash the impugned order dated 12.05.2023 passed by the learned Commissioner, Meerut Division, Meerut in Criminal Appeal No.393 of 2023 (Asif vs. State of U.P.) as well as externment order dated 09.02.2023 passed by Additional Police Commissioner, District Ghaziabad in Case No.42 of 2023 (State vs. Asif) under Section 2/3 U.P. Control of Goondas Act-1970, Police Station Kotwali, District Ghaziabad.

¶3It is submitted by learned counsel for the petitioner that in this case the proceeding under the provision of U.P. Control of Goondas Act-1970 was initiated on the basis of two criminal cases which were registered together as Crime No.235/18 under Sections 270, 429 I.P.C. & Section 3/11 Animal Cruelty Act and Crime No.237/18 under Section 4/25 Arms Act and also a beat report no.7 dated

21.09.2020. It is further submitted that the cases against the petitioner are said to have been committed in the year 2018 and the report of it was given by the S.P., Ghaziabad on 30.09.2020 (i.e. after two years) for initiation of proceedings on the basis of which Additional Police Commissioner issued show cause notice and passed the order in question on 09.02.2023 after lapse of five years from the date of alleged offence. It is also submitted that an appeal was filed against the order dated

09.02.2023 before the Commissioner, Meerut Division, Meerut but it was also dismissed without considering the facts and circumstances of the case as well as legal provisions related to the proceedings of the Act. No any such activity was reported against him that can be said to be likely to be dangerous to the community and no any other repeated offence was committed by him to show that he was habitual offender but this fact was not considered by both the authorities while passing the orders in question. It is also submitted that there is no any criminal antecedent against the petitioner. In this way, the order passed by the both the authorities cannot be said to be in conformity with law as provided under the Act.

¶4Learned A.G.A. opposed the prayer as aforesaid and urged that in the period elapsed between the year 2018-2020 there was no any other case registered against him but it was on account of bad reputation of the petitioner as a result no one could dare to inform the police about the activities of the petitioner. After considering the facts of the case and material on record, the orders in question were passed by the Additional Police Commissioner, District Ghaziabad as well as by the Commissioner, Meerut Division, Meerut, therefore, the petition being devoid of merit is liable to be dismissed.

¶5Section 2 (b) of Uttar Pradesh Control of Goondas Act, 1970 defines the word 'Goonda' which is as under: Section 2(b) of the Act-'Goonda' means a person who-

(i) either by himself or as a member or leader of a gang, habitually Commits or attempts to commit, or abets the commission of an offence punishable under Section 153 or section 153B or Section 294 of the Indian Penal Code or Chapter XV, or Chapter XVI, Chapter XVII or Chapter XXII of the said Code;

(ii) has been convicted for an offence punishable under the Suppression of Immoral Traffic in Women and Girls Act, 1956 or

(iii) has been convicted not less than thrice for an offence punishable 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; or

(iv) is generally reputed to be a person who is desperate and dangerous to the Community; or

(v) has been habitually passing indecent remarks or teasing women or girls; or

(vi) is a tout; or

(vii) is a house grabber.

¶6It is to note that for the act of the accused to come under the definition of Goonda there must be material to show that the accused was a habitual offender and committed the offence as aforesaid repeatedly and his general reputation is desperate and dangerous to the community or he habitually passes indecent remarks on women or girls. It is also to note that there must be reasonable nexus between the act of the accused and its impact on the society. There must not be time gap between the proceedings under this Act and the acts said to be committed by the accused must show relation between the two. The material on record itself also show that the accused-person was a habitual offender and he committed the offences under Chapter 16, 17 and 22 of the Indian Penal Code.

¶7In the case of Shankar Ji Shukla vs Ayukt, Allahabad Mandal, Allahabad 2005

(52) ACC 638 this Court observed that: The emphasis is on the word habitual and a single or two acts after a long gap does not amount to the term 'Habitually'. The expression '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. Because, the idea of 'habit' involves an element of persistence and a tendency to, repeat the acts or omissions of the same class or kind, if the acts or omissions in question are not of the same kind or even if they are of the same kind when they are committed with a long interval of time between them, they cannot be treated as habitual ones. Learned counsel for the petitioner further; relied on the case of Imran@Abdul Qaddus Khan v. State of U.P. and Ors. 2001(1) JIC 431 (All). In Imran's case (Supra), the Court relied on the judgment of Hon'ble Supreme Court in the case of Vijay Narain Singh v. State of Bihar and Ors. (1984) 3 SCC 14 for defining the term 'Goonda'. It was further held in Imran's case (supra) that even the minority view which was taken in Vijay Narain's case (Supra) was that the word 'habitually' means 'by force of habit'. From the facts found above I find that the petitioner is not a habitual offender and he cannot be brought under the term 'Goonda' as defined under the Act.

¶8Considering the submissions made by learned counsel for the petitioner as well as learned A.G.A. for the State and from the perusal of record, it appears that the cases against the petitioner were registered in the year 2018 and prior to that there was no any case against the accused. No repetition of similar act has been alleged against the accused by the police and no any such evidence was led before the Additional Police Commissioner, District Ghaziabad. Even he has not been convicted in any of the case till now as per submission made by learned counsel for the petitioner. There is nothing on record to show that the activities of the petitioner are in the nature of threatening to the people or his reputation is such as can be said to be dangerous to the community. There appears no any co-relation between the said acts of the petitioner and the proceedings initiated against him by the Additional Police Commissioner, District Ghaziabad. All these facts have not been taken into consideration either by the Additional Police Commissioner, District Ghaziabad while passing the order of externment dated 09.02.2023 and by Commissioner, Meerut Division, Meerut in the order dated 12.05.2023.

¶9In my considered opinion, the orders passed by Additional Police Commissioner, District Ghaziabad as well as Commissioner, Meerut Division, Meerut are not based on the sufficient material to bring the aforesaid offences under the purview of Section 2/3 of the U.P. Control of Goondas Act, therefore the orders passed by both the authorities cannot sustain in the eyes of law, as a result this petition has force and is allowed and the orders passed by Additional Police Commissioner, District Ghaziabad while passing the order of externment dated 09.02.2023 and by Commissioner, Meerut Division, Meerut in the order dated 12.05.2023 are, hereby, set aside. Order Date :- 24.11.2023 Ashok Gupta High Court of Judicature at Allahabad