SCA/19989/2023 of SAHID MUSTAKIM SHAIKH THROUGH HIS BROTHER SHAIKH MAJID MUSTAKIM Vs STATE OF GUJARAT on 6 May 2024

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)

1. By way of this petition, the petitioner has prayed to quashand set aside the order of detention dated 26.10.2023 passedby the respondent No.2, Commissioner of Police, VadodaraCity, in exercise of powers under sub-section (1) of Section 3of the Gujarat Prevention of Antisocial Activities Act, 1985 (forshort, 'the PASA Act') and to set the detenue free fromdetention.

2. Learned advocate for the detenue submitted that theorder of detention has been passed on the basis of registrationof a solitary offence under the Gujarat Prohibition Act. It wassubmitted that registration of a solitary offence by itself cannotbring the case of the detenue within the purview of thedefinition under section 2(b) of the Act.

2.1It is submitted that the illegal activity likely to be carriedout or alleged to have been carried out by the detenue cannothave any nexus or bearing with the maintenance of publicorder and at the most, it can be said to be a breach of lawand order situation. It was submitted that it is not possible tohold on the basis of the facts of the present case that theactivity of the detenue with respect to the criminal case inquestion had affected the tempo of society causing threat tothe very existence of normal and routine life of people at large or that, on the basis of the criminal case, the detenue had putthe entire social apparatus in disorder making it difficult forthe whole system to exist as a system governed by rule of lawby disturbing public order.

3. Learned AGP objected to the grant of petition andsubmitted that there is sufficient material against the detenue,which indicates that he is in the habit of indulging into illegalactivity, as defined under section 2(b) of the Act andconsidering the facts of the present case, the detainingauthority has rightly passed the order of detention and hence,the present petition may not be entertained.

4. Having heard learned advocates for the parties and onperusal of the material on record, this Court is of the viewthat even if the allegations levelled against the detenue aretaken at its face value, it would be difficult to comprehendthat the alleged activities of the petitioner are a threat to“public order”. The detenue could be proceeded with underthe relevant provisions of the Act; however, it would not bringhim within the definition of “bootlegger”, as defined undersection 2(b) of the PASA Act. It has to be shown by relevantmaterial that the detenu is a threat to the society and that hisacts cause disturbance to “public order”. Breach of peace orpublic tranquility may lead to law and order situation but, it would not lead to disturbance of “public order”.

5. In this connection, it will be fruitful to refer to adecision of the Supreme Court in Pushker Mukherjee v/s. Stateof West Bengal[AIR 1970 SC 852], where the distinctionbetween 'law and order' and 'public order' has been clearly laiddown. The Court observed as follows :

“Does the expression "public order" take in every kind ofinfraction of order or only some categories thereof ? It ismanifest that every act of assault or injury to specificpersons does not lead to public disorder. When twopeople quarrel and fight and assault each other inside ahouse or in a street, it may be said that there is disorderbut not public disorder. Such cases are dealt with underthe powers vested in the executive authorities under theprovisions of ordinary criminal law but the culpritscannot be detained on the ground that they weredisturbing public order. The contravention of any lawalways affects order but before it can be said to affectpublic order, it must affect the community or the publicat large. In this connection we must draw a line ofdemarcation between serious and aggravated forms ofdisorder which directly affect the community or injurethe public interest and the relatively minor breaches ofpeace of a purely local significance which primarilyinjure specific individuals and only in a secondary sensepublic interest. A mere disturbance of law and orderleading to disorder is thus not necessarily sufficient foraction under the Preventive Detention Act but adisturbance which will affect public order comes withinthe scope of the Act.”

6. In this case, it does not appear that subjective satisfactionhas been arrived at by the detaining authority before passingthe impugned order of detention. In connection with the FIR inquestion, the detenue was enlarged on bail on 25.10.2023 andimmediately on the next day, i.e. on 26.10.2023, the impugnedorder of detention came to be passed. Though the lesserdrastic remedy of cancellation of bail was available, the samehas not been resorted to and straightaway the order ofdetention came to be passed.

7. Subjective satisfaction would stand vitiated, as is held inthe recent decision of the Hon’ble Supreme Court in the caseof Shaik Nazeen v/s. State of Telangana and Ors. rendered inCriminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of 2022dated 22.06.2022, wherein, in paragraph-17, it has beenobserved as under:- “17. In any case, the State is not without a remedy, asin case the detenu is much a menace to the society as isbeing alleged, then the prosecution should seek for thecancellation of his bail and/or move an appeal to theHigher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedy underthe facts and circumstances of the case.”

8. In view of above, we are inclined to allow this petition,because simplicitor registration of an FIR by itself cannot have any nexus with the breach of maintenance of public order andthe authority cannot have recourse under the Act and no otherrelevant and cogent material exists for invoking power undersection 3(2) of the Act.

Conclusion

9. In the result, the present petition is hereby allowed andthe impugned order of detention dated 26.10.2023 passed bythe respondent – detaining authority is hereby quashed and setaside. The detenue is ordered to be set at liberty forthwith ifnot required in any other case. Rule is made absoluteaccordingly. Direct service is permitted.

(A.Y. KOGJE, J)

(SAMIR J. DAVE, J)

PRAVIN KARUNAN