SCA/8886/2020 of AABA THOTHARE FATHER OF VISHWAS THOTHARE Vs STATE OF GUJARAT on 30 December 2020

Issues

ORAL JUDGMENT

1. Petitioner is before this Court seeking following

2.

“14. The petitioner therefore prays:-

(A) Your Lordship may be pleased to admit and allow the present petition. and allow the present petition.

(B) Your Lordship may be pleased to passappropriate writ, order or direction in thenature of mandamus or habeas corpus byquashing and setting aside the detentionorder dated 19.07.2020 passed by therespondent No.2 herein and set thedetenue son of the petitioner at libertyforthwith. appropriate writ, order or direction in thenature of mandamus or habeas corpus byquashing and setting aside the detentionorder dated 19.07.2020 passed by therespondent No.2 herein and set thedetenue son of the petitioner at libertyforthwith.

(C) Your Lordship may be pleased to passany other writ, order or directions whichmay deem just, proper and fit in theinterest of justice.” any other writ, order or directions whichmay deem just, proper and fit in theinterest of justice.”

Challenge is under Gujarat Prevention of Anti-SocialActivities Act (‘the PASA Act”for short) to the actionof respondent No.2, who has invoked the powersunder sub-section (1) of section 3 of the PASA Actthereby passing the order of detention beingNo.PCB/PASA/DTN/63/2020 dated 19.07.2020.According to the petitioner, the detaining authorityhas lodged two cases under the provisions of theIndian Penal Code, wherein he had already been

3. granted bail. The allegations made against thedetenue are false and vague in nature. None of thealleged acts or activities of the petitioner’s son iswithin the purview of disturbance of public order.He has been termed and branded as dangerousperson under section 2(c) of the PASA Act. It is thegrievance on the part of the petitioner that there hasbeen complete non-application of mind on the partof the detaining authority.

This Court (Coram: Biran A. Vaishnav, J.) issuedrule on 31.07.2020. The grievance on the part of theMr.Keyush Vyas appearing for the petitioner is thattwice earlier the order of PASA had been passedagainst the petitioner and order impugned is acalculative move to continue him under detention.He has sought indulgence of this Court. It is furtherurged by learned advocate for the petitioner thatnone of the offences is potent enough to hold him adangerous person.

Learned Assistant Government Pleader has

questioned and challenged the very entertainment ofthis petition on the ground that the authorityconcerned has rightly invoked the powers. Thepersons is a dangerous person inasmuch as he hasnot been able to be controlled by way of ordinarylaw of the country.

At the outset, the order of detention, which isimpugned herein is of 19.07.2020, if is looked at, itspeaks of four offences of Manjalpur police stationand order of PASA twice earlier. He, however, hasstated to have continued his activities and,therefore, the two offences are regarded forinvocation of powers under sub-section(1) of section3 of the PASA Act. He is said to be a dangerousperson as he breaks the CCTV cameras and canenter any factory and break open the drawer orworkshop stores and thereby, takeaway all valuablearticles like DVR, phosphorous etc. His associatesare said to have formed a gang, whose only work isto commit a theft of all valuables and sell it at athrough away price. The first First Information Report being CR.No.I-108 of 2019 dated 08.08.2019registered at Manjalpur police station speaks of thefthaving been committed at Kadri Engineering, whichis a shop belonging to the owner of one Mr. Sajid.The complaint is being given by one Mr. AbhijitHemant. Out of the three cameras of ShanischarEngineering Works have been broken and anotherside of camera had been changed. All the wires ofCCTV camera had been cut and DVR has beenstolen. The wires of two cameras placed at thefactory workshop have been cut by breaking openthe class, windows, grill of the window also hadbeen bent as per this complaint. The panchnama isalso reflective of the total value and the damagecaused in the factory in the process. Five daysremand has been sought from the learnedAdditional Judicial Magistrate First Class by policeSub-Inspector, Manjalpur. For the offences of theyear 2019, he has been arrested in the month ofJanuary, 2020. Regular bail has been granted bylearned 4[th] Additional Sessions Judge in Criminal Miscellaneous Application NO.282 of 2020. TheCourt has referred to other three offences, andeventually granted him the regular bail, essentiallyon the ground that no recovery or discovery hasbeen made from the petitioner.

CR.No.II-82 of 2020 has been registered withManjalpur police station in connection with offencespunishable under sections 454, 457 and 380 of theIndian Penal Code. The complaint is given byRakeshbhai Chandubhai Mistry on 06.04.2019. On08.04.2019 in the morning, when he opened hisfactory, he realized that all the belongings of hiswere not found. When he went to check the CCTVcamera, he realized that the same had been takenaway. He found the theft of brass scrap, PB scrap,brass reel and CCTV camera. The total value ofwhich was around Rs.1,80,000/-. The bail has beengranted by learned Additional District & SessionsJudge, Vadodara in Criminal MiscellaneousApplication No.484 of 2020. He with his otherassociates was attempting to carry the stolen muddamal articles. The police had caught them redhanded.

It appears that the indiscriminate action of thepetitioner and his associates has caused this fear inthe mind of the people. He is branded as dangerousperson. The law on that subject as laid down inSpecial Civil Application 9514 of 2020 is as under:-

“7. Having, thus, heard both the sides andalso on examining the material on record, itcan be noticed that by virtue of the orderdated 26.07.2020, passed by respondentNo.2, the petitioner has been detained underthe PASA Act. The challenge is made onvarious grounds, principal being that actionof the petitioner is, in no manner, causingprejudice to the public peace nor is it causingthe disturbance of the public order. On theground that there is violation of Articles 21and 22 of the Constitution of India and thesettled law of the country, this challenge ismade.

7.1 At the outset, the definition of thedangerous persons is required to beconsidered from the provisions of the PASAAct, which is provided under Section 2(C) ofthe PASA Act. A person, who either byhimself or as a member or leader of a gang;during the period of three successive years,habitually commits, or attempts to commit orabets the commission of any of the offencespunishable under the IPC, is termed as adangerous person under the Act, as providedunder this Act or under any other Act. Thus, what is required of the person, who is termedas the dangerous person, is of hiscommission of offences, as provided in thisdefinition and his habit of committing suchoffences.

7.2 Sub-Section (1) of Section 3 of the Act,which empowers the State Government that,if, it is satisfied with respect to any personthat with a view to preventing him fromacting in any manner prejudicial to themaintenance of public order, it is necessaryso to do, make an order directing that suchperson be detained. Therefore, the sameshall need to be regarded by this Court.Further, Sub-Section (4) of Section also shallneed to be regarded by this Court, whichprovides, for the purpose of this section, aperson shall be deemed to be "acting in anymanner prejudicial to the maintenance ofpublic order", when such a person isengaged in or is making preparation forengaging in any activities, whether, as abootlegger or common gambling house ordangerous person or drug offender orimmoral traffic offender or property grabber,which affect adversely or are likely to affectadversely the maintenance of public order.The explanation for the purpose of this sub-section provides that public order shall bedeemed to have been affected adversely orshall be deemed likely to be affectedadversely inter alia if any of the activities ofany person referred to in this sub-sectiondirectly or indirectly, is causing or is likely tocause any harm, danger or alarm or feelingof insecurity among the general public or anysection thereof or a grave or widespreaddanger to fife, property or public health.

7.3 In this background, the Court shall alsoneed to regard the decision of the Apex Courtin the case of ‘AMANULLA KHANKUDEATALLA KHAN VS. STATE OFGUJARAT’, AIR 1999 SC 2197, where, the

Apex Court was considering as to who canbe termed as the dangerous person or ahabitual offender. In the matter before theApex Court, the detaining authority on beingsatisfied from the activities of the detenu thathe belongs to a notorious gang and themembers of the gang hatched conspiracy toextort money from the people, by puttingthem under threat of fear of death, wassatisfied that the detenu is a dangerousperson within the meaning of Section 2[c] ofthe Act and the activities of the detenu andhis gang members were such that formaintenance of public order it was necessaryto detain the detenu and accordingly theorder of detention against the detenu waspassed. The Apex Court, on hearing both thesides, held that the subjective satisfactionarrived at by the respondent authority is justand thereby, it refused to interfere with theorder of detention. The relevant observationsread thus:

“3. The detaining authority on being satisfiedfrom the activities of the detenu that hebelongs to a notorious gang and themembers of the gang hatched conspiracy toextort money from the people who areengaged in building construction business inthe city by putting the people under threat offear of death, was satisfied that the detenuis a dangerous person within the meaning ofSection 2[c] of the Act and the activities of thedetenu and his gang members were suchthat for maintenance of public order it wasnecessary to detain the detenu andaccordingly the order of detention against thedetenu was passed. Immediately after theorder of detention was passed, the detenuapproached the Gujarat High Court asalready stated inter alia on the ground thatthe single activity of the detenu for which CRNo. 36/97 under Sections 120- B, 387 and506(2) IPC had been registered is notsufficient to hold him to be a dangerous person within the meaning of Section 2[c] ofthe Act and as such the order of detention isvitiated. By the impugned Judgment, theHigh Court came to the conclusion that thesatisfaction of the detaining authority wasnot based solely on the incident culminatingin registration of the criminal case underSections 120-B, 387 and 506(2) of the IndianPenal Code but also the incidents thathappened on 26.7.98 and 2.8.98 aboutwhich the two witnesses have stated beforethe detaining authority and therefore, thesatisfaction of the detaining authority,holding the detenu to be a dangerous personcannot be said to be vitiated.

4. Mr. Anil Kumar Nauriya, the learnedcounsel appearing for the detenu in this courtreiterated the same contention namely that asingle incident in which the detenu is allegedto be involved and for which the criminalcase had been registered will not besufficient to hold the detenu to be adangerous person under Section 2[c] of theAct inasmuch as the expression dangerousperson has been defined to be a person whoeither by himself or as a member or leader ofa gang, during a period of three successiveyears, habitually commits, or attempts tocommit or abets the commission of any of theoffences punishable under Chapter XVII ofthe Indian Penal Code or any of the offencespunishable under Chapter V of the Arms Act,1959. In other words according to thelearned counsel unless the activities of thedetenu considered by the detaining authorityindicate that he has either habituallycommitted or attempted to commit or abet thecommission of offence, cannot be held to be adangerous person under Section 2[c] of theAct. The expression habitually wouldobviously mean repeatedly or persistently. Itsupplies the threat of continuity of theactivities and, therefore, as urged by thelearned counsel for the petitioner an isolated

act would not justify an inference ofhabitually commission of the activity. In thisview of the matter the question that requiresadjudication is whether the satisfaction ofthe detaining authority in the present case isbased upon the isolated incident for whichthe criminal case was registered or there areincidents more than one which indicate arepeated and persistent activity of thedetenu. If the grounds of detention isexamined from the aforesaid stand point, itis crystal clear that apart from the criminalcase which had been registered against thedetenu for having formed a gang andhatched a conspiracy to extort money fromthe innocent citizens by threatening themand keeping them under constant fear ofdeath, the two witnesses examined by thedetaining authority narrated the incident thathappened on 26.7.98 and 2.8.98 in whichthe detenu was involved and on the firstoccasion a sum of Rs. 1 lac was demandedand when the person concerned refused, hewas dragged and assaulted and on thesecond occasion a sum of Rs. 50 thousandwas demanded and on refusal, the personswere dragged on the road and were beatenon the public road. It is not the grievance ofthe detenu that the statements of theaforesaid two witnesses had not beenappended to the grounds of detention or hadnot been mentioned in the grounds ofdetention. In fact the grounds of detentionclearly mention the aforesaid state of affairsand there is no bar for taking these incidentsinto consideration for the satisfaction of thedetaining authority that whether the personis a dangerous person within the ambit ofSection 2[c] of the Act. We, therefore, fail toappreciate the first contention raised by thelearned counsel for the petitioner that thesatisfaction of the detaining authority thatthe detenu is a dangerous person is basedupon the solitary incidence in respect ofwhich a criminal case has already been registered. In our considered opinion thedetaining authority has considered the threedifferent incidents happened on threedifferent dates and not a solitary incidenceand, therefore, the test of repeatedness orcontinuity of the activity is fully satisfied andthe satisfaction of the detaining authorityholding the detenu to be a dangerous personis not vitiated in any manner. The contentionof the learned counsel for the petitionertherefore stands rejected.

5. Mr. Anil Kumar, the learned counsel thenurged that even if the activities of the detenuwere sufficient to hold him to be a dangerousperson yet an order of detention can bepassed under the Gujarat Act only with aview to prevent the detenu from acting in anymanner prejudicial to the maintenance of thepublic order. By virtue of provisionscontained in Sub-section (4) of Section 3 ofthe Act a person shall be deemed to be actingin any manner prejudicial to the maintenanceof public order when such person is engagedin or is making preparation for engaging inany activities, whether as a bootlegger ordangerous person or drug offender orimmoral traffic offender or property grabber,which affect adversely or are likely to affectadversely the maintenance of public order.Thus maintenance of public order is sine quanon for passing an order of detention underSection 3 of the Gujarat Act. But in the casein hand the alleged activities of the detenuare all in relation to violation of the normalcriminal law and it has got no connectionwith the maintenance of public order and,therefore, the order of detention is vitiated.We are unable to appreciate this contentionof the learned counsel for the detenuinasmuch as even an activity violating anordinary legal provision may in a given casebe a matter of public order. It is themagnitude of the activities and its effect onthe even tempo of life of the society at large

or with a section of society that determineswhether the activities can be said to beprejudicial to the maintenance of public orderor not. In Mustakmiya Jabbarmiya Shaikhvs. M.M. Mehta, Commisioner of Police andOrs. 1995(3) SCC 237, it has been held bythis court that in order to bring the activitiesof a person within the expression of acting inany manner prejudicial to the maintenance ofpublic order, the fall out and the extent andreach of the alleged activities must be of sucha nature that they travel beyond the capacityof the ordinary law to deal with him or toprevent his subversive activities affecting thecommunity at large or a large section ofsociety. It is the degree of disturbance andits impact upon the even tempo of life of thesociety or the people of a locality whichdetermines whether the disturbance causedby such activity amounts only to a breach oflaw and order or it amounts to breach ofpublic order. Applying the ratio of theaforesaid decision to the facts of the presentcase we find that the activities of the detenuby trying to extort money from ordinarycitizens by putting them to fear of death andon their refusal to part with the money todrag them and torture them on public roadundoubtedly affected the even tempo of lifeof the society and, therefore such activitiescannot be said to be a mere disturbance oflaw and order. In our considered opinion theactivities of the detenu are such that thedetaining authority was satisfied that suchactivities amount to disturbance of publicorder and to prevent such disturbance theorder of detention was passed. We,therefore, do not find any substance in thesecond contention of the learned counsel forthe detenu. Mr. Anil Kumar then urged thatthe Advisory Board having not indicated thatthe detenu is to be detained for more thanthree months, has failed to discharge itsconstitutional obligation and there has beenan infringement of Article 22(5) of the

Conclusion

Constitution and in support of the samereliance has been placed on the decision ofthis court in A.K. Gopalan vs. The State ofMadras, 1950 SCR 88 and the decision ofthis Court in John Martin vs. The State ofWest Bengal, 1975(3) SCR 211. At the outsetit may be stated that the detenu had notmade any such grievance in the writ petitionthat had been filed in the Gujarat High Court.That apart, the opinion of the Advisory Boardto the State Government, rejecting therepresentation of the detenu and expressingits opinion with regard to the existence ofsufficient cause for the detention of thedetenu is not a part of the record and what ispressed into service by the learned counselin support of his argument is the merecommunication from the Section Officer of theHome Department dated 27th August, 1998,intimating the factum of the rejection ofrepresentation by the Advisory Board.Section 11 of the Act is the procedure formaking reference to the Advisory Board andSection 12 provides the duties and obligationof the Advisory Board on the basis ofmaterials placed before it. Under Sub-section(2) of Section 12 it is the requirement of lawthat the report of the Advisory Board shallspecify in a separate part thereof the opinionof the Advisory Board as to whether or notthere is sufficient cause for the detention ofthe detenu and this opinion of the AdvisoryBoard has been furnished in the presentcase. We really fail to understand how acontention could be raised that the AdvisoryBoard has failed to discharge its obligationand how the court would be entitled toexamine the same without even the copy ofthe report of the Advisory Board beingformed a part of the records of the presentproceedings. In view of the counter affidavitfiled in the present case that all theprovisions have been duly complied with andin the absence of any material to support thearguments advanced by the learned counsel, we do not find any force in the contentionraised alleging any infraction of provision oflaw in the opinion given by the AdvisoryBoard and the said Board in rejecting therepresentation of the detenu. This contentiontherefore, is devoid of force.”

7.4 In case of ‘SUBRAMANIAN VS. STATE OFTN & ANOTHER’, (2012) 4 SCC 699; theApex Court was considering the as to whenwould be the public order can be said to bedisturbed. It denotes the tempo of thecommunity, the use of the weapons and thedamage caused to the public and privateproperty, threatening public tempo andcreating panic amongst the people in alocality and this was held sufficient todisturb the public order. The relevantobservations are as under: “9) With regard tothe first submission that no case is made outfor preventive detention by invoking theprovisions of T.N. Act 14 of 1982, though theground case incident arose out of a landdispute between the detenu and the de factocomplainant, however, the argument that it isonly a law and order problem and that publicorder was not disturbed is contrary to thefacts and equally untenable. As rightlypointed out by Mr. Guru Krishnakumar, theDetaining Authority, on consideration ofmaterials placed has found that the accusedcaused damage to both public and privateproperties, threatened the public and alsocreated a situation of panic among thepublic. In this regard, it is useful to refer thematerials narrated in the grounds ofdetention which are as follows: "On18.07.2011, at about 10:00 hours, whileKaliyamoorthy was available in the STDbooth, Kajamalai Kadaiveethi, Kajamalai,Tiruchirapalli city, the accused Kajamalai Viji@ Vijay armed with aruval, his associatesManikandan, Uthayan, Sathiya, Sivakumararmed with Kattas came there. The accusedKajamalai Viji @ Vijay abused Kaliyamoorthy

in a filthy language, threatened to murderhim with aruval by saying "Have you becomesuch a big person to give complaints againstme. You bastard, try giving a complaint, I willchop you down right here." His associatesthreatened him with their respective kattas.Thereafter, the accused Kajamalai Viji @Vijay caused damage to the glasses, chairand stool available in the shop. WhileKaliyamoorthy questioned them, the accusedKajamalai Viji @ Vijay slapped him on theface. Kaliyamoorthy raised alarm for rescue.The general public came there and they werethreatened by the accused Kajamalai Viji @Vijay and his associates by saying "ifanyone turns up as witness, I will kill them."The nearby shop-keepers closed their shopsout of fear. Auto drivers took their autos fromthe stand and left the place. The situationcreated panic among the public. On thecomplaint of Kaliyamoorthy, a case in K.K.Nagar P.S. Cr. No. 361/2011 u/s 147, 148,447, 448, 427, 294(b), 323, 506(ii) IPC and 3P.P.D. Act was registered." 10) From theabove materials, the Detaining Authority wassatisfied that the detenu is habituallycommitting crimes and also acting in amanner prejudicial to the maintenance ofpublic order and as such he is a `goonda' ascontemplated under Section 2(f) of the T.N.Act 14 of 1982. The order further shows thatthe Detaining Authority found that there is acompelling necessity to detain him in order toprevent him from indulging in such activitiesin future which are prejudicial to themaintenance of public order. After narratingthe details of the ground case and afteradverting to earlier instances commencingfrom the years 2008 and 2010, the DetainingAuthority has concluded as under:- "Hence, Iam satisfied that the accused Kajamalai Viji@ Vijay is habitually committing crimes andalso acting in a manner prejudicial to themaintenance of Public order and as such heis a Goonda as contemplated under Section

2(f) of the Tamil Nadu Act No. 14 of 1982. Bycommitting the above described grave crimein a busy locality cum business area, he hascreated a feeling of insecurity in the minds ofthe people of the area in which theoccurrence took place and thereby acted in amanner prejudicial to the maintenance ofpublic order." 11) It is well settled that thecourt does not interfere with the subjectivesatisfaction reached by the DetainingAuthority except in exceptional and extremelylimited grounds. The court cannot substituteits own opinion for that of the DetainingAuthority when the grounds of detention areprecise, pertinent, proximate and relevant,that sufficiency of grounds is not for theCourt but for the Detaining Authority for theformation of subjective satisfaction that thedetention of a person with a view topreventing him from acting in any mannerprejudicial to public order is required andthat such satisfaction is subjective and notobjective. The object of the law of preventivedetention is not punitive but only preventiveand further that the action of the executive indetaining a person being only precautionary,normally, the matter has necessarily to beleft to the discretion of the executiveauthority. It is not practicable to lay downobjective rules of conduct in an exhaustivemanner. The satisfaction of the DetainingAuthority, therefore, is considered to be ofprimary importance with certain latitude inthe exercise of its discretion.” 7.5 Reliance isalso placed on the decision of this Court inSpecial Civil Application No. 6414 of 2020,Dated : 12.06.2020, where, the Court wasconsidering the question of detainingauthority having termed the petitioner as thedangerous person under Section 2(C) of thePASA Act. Relying on the decision of the ApexCourt in ‘PUSHKER MUKHERJEE V. STATEOF WEST BENGAL’, AIR 1970 SC 852, ‘DR.RAM MANOHAR LOHIA V. STATE OF BIHAR& OTHERS’, (1966) 1 SCR 709 and ‘DARPAN

KUMAR SHARMA ALIAS DHARBAN KUMARSHARMA V. STATE OF T.N. AND OTHERS’,AIR 2003 SC 971 and other decisions, theCourt held that the detaining authority failedto substantiate the aspect that the allegedanti-social acts of the petitioner-detenuadversely affected or likely to adverselyaffect the maintenance of public order.Profitable, it would be to reproduce therelevant observations, which read thus:

4. Having heard learned advocates for theparties and considering the facts andcircumstances of the case, it appears that thesubjective satisfaction arrived at by thedetaining authority cannot be said to belegal, valid and in accordance with law,inasmuch as the offences alleged in theFIR/s cannot have any bearing on the breachof public order as required under the Act andother relevant penal laws are sufficientenough to take care of the situation and thatthe allegations as have been levelled againstthe detenue cannot be said to be germane forthe purpose of bringing the detenue withinthe meaning of section 2(c) of the Act. Unlessand until, the material is there to make out acase that the person has become a threatand menace to the Society so as to disturbthe whole tempo of the society and that allsocial apparatus is in peril disturbing publicorder at the instance of such person, itcannot be said that the detenue is a personwithin the meaning of section 2(c) of the Act.Except general statements (two FIRs), thereis no material on record which shows thatthe detenue is acting in such a manner,which is dangerous to the public order. Inthis connection, it will be fruitful to refer to adecision of the Hon’ble Supreme Court inPushker Mukherjee v. State of West Bengal,AIR 1970 SC 852, where the distinctionbetween 'law and order' and 'public order'has been classically laid down, which is asunder: “Does the expression "public order"

take in every kind of infraction of order oronly some categories thereof ? It is manifestthat every act of assault or injury to specificpersons does not lead to public disorder.When two people quarrel and fight andassault each other inside a house or in astreet, it may be said that there is disorderbut not public disorder. Such cases are dealtwith under the powers vested in theexecutive authorities under the provisions ofordinary criminal law but the culprits cannotbe detained on the ground that they weredisturbing public order. The contravention ofany law always affects order but before itcan be said to affect public order, it mustaffect the community or the public at large. Inthis connection we must draw a line ofdemarcationbetweenseriousandaggravated forms of disorder which directlyaffect the community or injure the publicinterest and the relatively minor breaches ofpeace of a purely local significance whichprimarily injure specific individuals and onlyin a secondary sense public interest. A meredisturbance of law and order leading todisorder is thus not necessarily sufficient foraction under the Preventive Detention Act buta disturbance which will affect public ordercomes within the scope of the Act.” 5. Thedistinction between "public order" and "lawand order" has been carefully defined in aConstitution Bench judgment of the Hon’bleSupreme Court in the case of Dr. RamManohar Lohia v. State of Bihar & Others,(1966) 1 SCR 709. In this judgment, HisLordship Hidayatullah, J. by giving variousillustrations clearly defined the "public order"and "law and order". Relevant portion of thejudgment reads as under: "....Does theexpression "public order" take in every kindof disorder or only some? The answer to thisserves to distinguish "public order" from "lawand order" because the latter undoubtedlytakes in all of them. Public order if disturbed,must lead to public disorder. Every breach of

the peace does not lead to public disorder.When two drunkards quarrel and fight thereis disorder but not public disorder. They canbe dealt with under the powers to maintainlaw and order but cannot be detained on theground that they were disturbing publicorder. Suppose that the two fighters were ofrival communities and one of them tried toraise communal passions. The problem isstill one of law and order but it raises theapprehension of public disorder. Otherexamplescanbeimagined.Thecontravention of law always affects order butbefore it can be said to affect public order, itmust affect the community or the public atlarge. A mere disturbance of law and orderleading to disorder is thus not necessarilysufficient for action under the Defence ofIndia Act but disturbances which subvert thepublic order are. A District Magistrate isentitled to take action under Rule 30(l)(b) toprevent subversion of public order but not inaid of maintenance of law and order underordinary circumstances. It will thus appearthat just as "public order" in the rulings ofthis Court (earlier cited) was said tocomprehend disorders of less gravity thanthose affecting "security of State", "law andorder" also comprehends disorders of lessgravity than those affecting "public order".One has to imagine three concentric circles.Law and order represents the largest circlewithin which is the next circle representingpublic order and the smallest circlerepresents security of State. It is then easy tosee that an act may affect law and order butnot public order just as an act may affectpublic order but not security of the State.…"6. In Darpan Kumar Sharma alias DharbanKumar Sharma v. State of T.N. and others,reported in AIR 2003 SC 971, the Hon’bleSupreme Court made the followingobservations: “The basis upon which thepetitioner has been detained in the instantcase is that he robbed one Kumar at the point of knife a sum of Rs.1000/-. Anydisorderly behaviour of a person in the publicor commission of a criminal offence is bound,to some extent, affect the peace prevailing inthe locality and it may also affect law andorder but the same need not affectmaintenance of 'Goonda' the acts prejudicialto public order are 'when he is engaged, or ismaking preparations for engaging, in any ofhis activities as a goonda which affectadversely, or are likely to affect adversely,the maintenance of public order'. Thequestion whether a man has only committeda breach of law and order or has acted in amanner likely to cause disturbance of thepublic order is a question of degree and theextent of the reach of the act upon thesociety; that a solitary assault on oneindividual can hardly be said to disturbpublic peace or place public order in jeopardyso as to bring the case within the purview ofthe Act providing for preventive detention.” 7.In Siddharth @ Sindhu Laxmanbhai Thorat v.District Magistrate, Navsari, in Letters PatentAppeal No.1020 of 2019 dated 08.05.2019,this Court has made following observations:“8. Having regard to the facts andcircumstances of the case, We find thatthough there are powers available undersection 3(1) of the Act, ordinary law of IndianPenal Code under which FIRs are registeredin four offences for which punishment isprescribed in the Indian Penal Code, issufficient and order of detention cannot bepassed as a short cut to exhaust suchremedy. Ordinarily, this Court will be loath ininterfering with subjective satisfaction of thedetaining authority. While arriving atsubjective satisfaction, the detainingauthority is supposed to undertake objectiveassessment of the material available. In thisconnection, we may refer to the judgment ofthis Court in Letters Patent appeal No.2732of 2010, dated 28.3.2011 in the case ofAartiben W/o Nandubhai Jayantibhai

Sujnani vs. Commissioner of Police & 2others, wherein, this Court has quoted theobservations made by Apex Court in the caseof Pushker Mukherjee vs. State of WestBengal, reported in AIR 1970 SC 852,wherein distinction is drawn between publicorder and law and order. The Supreme Courtobserved in the said judgment as under:“Does the expression “public order” take inevery kind of infraction of order or only somecategories thereof ? It is manifest that everyact of assault or injury to specific personsdoes not lead to public disorder. When twopeople quarrel and fight and assault eachother inside a house or in a street, it may besaid that there is disorder but not publicdisorder. Such cases are dealt with underthe powers vested in the executiveauthorities under the provisions of ordinarycriminal law but the culprits cannot bedetained on the ground that they weredisturbing public order. The contravention ofany law always affects order but before itcan be said to affect public order, it mustaffect the community or the public at large. Inthis connection we must draw a line ofdemarcationbetweenseriousandaggravated forms of disorder which directlyaffect the community or injure the publicinterest and the relatively minor breaches ofpeace of a purely local significance whichprimarily injure specific individuals and onlyin a secondary sense public interest. A meredisturbance of law and order leading todisorder is thus not necessarily sufficient foraction under the Preventive Detention Act buta disturbance which will affect public ordercomes within the scope of the Act.” 8. It isalso fruitful to refer to the judgment of theHon’ble Supreme Court in the case of ArunGhosh v. State of West Bengal (1970) 1 SCC98, wherein, the Hon’ble Supreme Court hasobserved as under: “... Public order was saidto embrace more of the community than lawand order. Public order is the even tempo of

the life of the community taking the countryas a whole or even a specified locality.Disturbance of public order is to bedistinguished from acts directed againstindividuals which do not disturb the societyto the extent of causing a generaldisturbance of public tranquility. It is thedegree of disturbance and its effect upon thelife of the community in a locality whichdetermines whether the disturbance amountsonly to a breach of law and order. Take forinstance, a man stabs another. People maybe shocked and even disturbed, but the lifeof the community keeps moving at an eventempo, however much one may dislike theact....” 9. Further in the case of MustakmiyaJabbarmiya Shaikh v. M. M. Mehta,Commissioner of Police and Others, 1995 (2)GLR 1268 observed as under: “8. The Acthas defined "Dangerous Person" in clause (c)of section 2 to mean a person who either byhimself or as a member or leader of a ganghabitually commits or attempts to commit orabets the commission of any of the offencespunishable under Chapter XVI or ChapterXVII of the Penal Code or any of the offencespunishable under Chapter V of the Arms Act.The expression 'habit' or 'habitual' has,however, not been defined under the Act.According to The Law Lexicon by P.Ramanatha Aiyar, Reprint Edn. (1987), p.499, 'habitually' means constant, customaryand addicted to specified habit and the termhabitual criminal may be applied to anyonewho has been previously convicted of a crimeto the sentences and committed to prisonmore than twice. The word 'habitually'means 'usually' and 'generally'. Almostsimilar meaning is assigned to the words'habit' in Aiyar's Judicial Dictionary, 10thEdn., p. 485. It does not refer to thefrequency of the occasions but to theinvariability of practice and the habit has tobe proved by totality of facts. It, therefore,follows that the complicity of a person in an

isolated offence is neither evidence nor amaterial of any help to conclude that aparticular person is a "dangerous person"unless there is material suggesting hiscomplicity in such cases which lead to areasonable conclusion that the person is ahabitual criminal. In Gopalanchari v. State ofKerala, AIR 1981 SC 674, this Court had anoccasion to deal with expressions like "badhabit", 'habitual', 'desperate', 'dangerous',and 'hazardous'.”

7.6 In ‘Mustakmiya Jabbarmiya Shaikh’(Supra), the Court examined the expression‘habit’ or ‘habitual’ offender to held that‘habitually’ means constant, customary andaddicted to specified habit and the termhabitual criminal may be applied to anyonewho has been previously convicted of a crimeto the sentences and committed to prisonmore than twice. However, it does not refer tothe frequency of the occurrence andinvariably the practice and the habit.

7.7 This Court in Special Civil Application No.8592 of 2020 also was considering the caseof the petitioner, who was detained underSection 2(C) of the PASA Act as a dangerousperson, on the basis of the criminal caseregistered against him for the offence underthe Disaster Management Act, on the groundthat the activities of the petitioner wasaffecting the maintenance of the public orderand the order under challenge was notupheld. While so doing, the Court relied onthe decision in ‘DR. RAM MANOHAR LOHIA’(Supra).

7.8 On the basis of the law on the subject,what needs to be regarded by this Court is,as to whether, the kind of infraction or theorder can be regarded as prejudicial to themaintenance of the public order and whetherthe same would be governed under the public order.

7.9 As can be noticed from the decision of theApex Court in ‘PUSHKER MUKHERJEE’(Supra), it is not a case of two peoplequarreling and fighting with each other eitherin their house or in the streets, and therefore,there was disorder, but, not public disorder.Such cases are dealt with the ordinarycriminal laws and obviously, no person couldhave been detained on the ground that theywere disturbing public order. Suchcontravention of the law would alwaysvitiate the order, as is held by the ApexCourt. But, before it is said to have affectedthe public order, it must affect the public atlarge. Therefore, the Court has drawn a line,demarcating between serious and gravedanger and injury to the public interest andrelatively minor breach of peace of purelylocal, which is primarily of local and is notlikely to affect the public order. It would bevital for this Court to consider, as to whether,it can be said to be mere disturbance of lawand order, leading to disorder, as providedunder the PASA Act.

7.10 The public order, as held in case of‘ARUN GHOSH‘ (Supra), is said to embracemore of the community than law and order.The Court even went to an extent to statethat public order is the even tempo of the lifeof the community taking the country as awhole or even a specified locality.Disturbance of public order is to bedistinguished from acts directed againstindividuals which do not disturb the societyto the extent of causing a generaldisturbance of public tranquility.

7.11 On the strength of the law on thesubject, if, the actions of the petitioner areconsidered from the material, which hasbeen presented on record, this Court notices that there are two FIRs registered againsthim, which speaks of the theft ofmotorcycles. The person had gone to serve,after parking his motorcycle in the parkingand when he returned, he found the same tobe missing. Likewise, the second FIR filedwith the JP Road Police Station also speaksof such theft of the vehicle by unknownpersons. It is vital to make a mention, at thisstage, the various statements recorded of thepolice personnel, who had formed a team atDCB Police Station. There was increase innumber of theft of motorcycles within the cityof Vadodara, and therefore, various teamswere formed and used of CCTV footages andsurveillance and other modes were also usedto detect the crime. In such an attempt ofnabbing the criminals, while Team 2 was inpatrolling on an input received that somepersons were trying to sell the motorcycles,which were allegedly stolen, those personswere cordoned and the motorcycle withengine and chassis number, but, without anyRTO registration was found. Thereafter, itwas realized that there had been theft ofabout 10 motorcycles and later on, the fatherof co-detenue and the petitioner in SpecialCivil Application No. 9515 of 2020 producedthe same. The details of the same is formingthe part of the statement of the secretwitnesses. 7.12 At the first go, this mayappear to be the case of only two FIRs, andtherefore, the question arose of whether, theexpression ‘habit’ or ‘habitual’ can beapplied to someone, who has allegedlyinvolved in two of such crimes. As held in thecase of ‘Mustakmiya Jabbarmiya Shaikh’(Supra), it does not refer to the frequency ofthe occasion and frequency of the occasionsbut to the invariability of practice and thehabit has to be proved by totality of facts.Being aware of the fact that the complicity ofa person in an isolated offence is neitherevidence nor a material of any help toconclude that a particular person is a

"dangerous person"; unless there is materialsuggesting his complicity in such cases,which lead to a reasonable conclusion thatthe person is a habitual criminal. In the caseon hand, it can, surely, be stated that theacts of the petitioner are, though, directedagainst individuals or in essence in a localityand it determines that it is not only amountsto disturbance of the law and order but italso does affect the public order. This, surely,cannot be said to be a breach of peace oflocal significant, injuring only the specificindividual and noticing the number of theft ofmotorcycles and the plethora of material tosubstantiate this aspect, it will be difficult forthis Court to held that the subjectivesatisfaction arrived at by the respondent-authority is without any valid basis.”

From the law discussed above as to who can betermed as a dangerous person, the Court needs toregard the materials placed before the detainingauthority in its arrival at subjective satisfaction. Thecourt cannot be oblivious of the fact that twiceearlier, there has been invocation of PASA Actagainst this man and for the third time, the samehas been invoked by the authority against him toprevent him from indulging into the very naturedactivities. In one of the First Information Reports,the police could not find much material to connecthim and there could never be possibly any direct evidence in the matter of theft. The theft though canbe said to be something, which can be handled bythe ordinary law of the country, that would not bedeterminative of what resulted in the present matteras what also begs attention of the Court is the latesttechnological innovations for the safety of peopleand safeguard of the valuables and immovableproperties of business and residential premises.These mechanism require devices which includeCCTV camera, DVR etc. They also eventually aid thepolice and investigating wing to nab the culprits.The petitioner with his associates continue to actsmartly in defiance of law. No amount of dealingunder the ordinary law has helped the authority inpreventing the petitioner from carrying out the saidactivities. Although detaining a person under thePASA Act is the last resort ordinarily to be taken bythe detaining authority. Not only the theft butserious damage of these devices and rendering theplaces unsafe create panic and fear amongst allconcerned and also cause a substantial amount of doubt against the authorities meant to safeguardthe law and order situation. This persistent andunstoppable acts if led the authority to invoke Orderof detention, by holding that the issue is incapableto be handled by the ordinary law, no indulgence isnecessary.

9. Thus, the facts cumulatively lead this Court toconclude that there is no requirement for the Courtto replace its discretion in the given circumstances.

10. Petition stands rejected accordingly and rule isdischarged .

MISHRA AMIT V./sudhir

(SONIA GOKANI, J)