Naushad v. State Of U.P. And 2 Others

Heard Sri Ravindra Pratap Singh, learned counsel appearing for the petitioner and the learned A.G.A. for the State and also perused the record. By means of the present petition under Article 226 of the Constitution of India, the petitioner is assailing the legality and validity of the notice dated 7.8.2023 issued by Additional Police Commissioner, Commissionerate, Ghaziabad, in Case No. 493 of 2023, under Section 3(1) of U.P. Control of Goondas Act, 1970, mentioning only one case to the credit of the petitioner i.e. Case Crime No. 160 of 2022, under Sections 363, 366, 34 IPC and Section 5/6 of POCSO Act, Police Station Machuban Bapudham, Ghaziabad. Learned counsel for the petitioner has submitted that in the aforesaid case the petitioner has been bailed out by the Single Judge of this Court vide order dated 10.10.2023. It is further submitted that on the basis of solitary case, the impugned notice has been issued against the petitioner. He has next submitted that the matter in issue is squarely covered by judgement passed by this Court in Criminal Misc. Writ Petition No. 12619 of 2023 in re: Govardhan Vs. State of U.P. decided on 10.8.2023, in which the Court has deprecated the practice of slapping the notice under Section 3(1) of U.P. Control of Goondas Act, 1970 on the basis of one case. The paragraph nos. 13 to 16 are reproduced hereunder: "13. In the impugned notice, there is a description of only one criminal case and one beat report against the petitioner while as per the definition and law settled by the Hon'ble Apex Court as well a by this Court "one" cannot be treated to be a 'habitual offender' unless and until there is a tendency of recurrence of the offence. In the instant case there is a solitary case to the credit of the petitioner, in which he has been granted anticipatory bail till the conclusion of trial, we find that this notice is nothing, but a sheer abuse of power vested in the executive authorities of the district.

In addition to above, there is mandatory requirement of the law, that if the executive authority is satisfied that the proceedings under Goonda Act spells out offences under clause (a), (b) and (c) of sub-Section 1 of the Act, he may issue notices to the particular "Goonda" informing him general nature of material allegations against him in clause (d) of the Act, his image among the masses, his nuisance value by which he is a potential threat to the peace and public order of the society at large.

But in the instant case, in the notice under challenge spells out the cases required against the petitioner which is allegedly issued on a "prescribed printed proforma" without application of mind by the executive authorities. Not only this, except enumeration of pending solitary case and a beat report, there is total lack of any judicial mind spelling out the general nature of material allegations against the petitioner, making entire impugned notice per se defective and cannot be acted upon any further.