Gujarat High Court
SCA/20294/2023 of KRUPALSINH @ KRUNAL S/O RAJENDRASINH SOLANKI Vs STATE OF GUJARAT on 6 May 2024
DATED: 06/05/2024 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20294 of 2023 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE A.Y. KOGJE and HONOURABLE MR. JUSTICE SAMIR J. DAVE ========================================================== 1 Whether Reporters of Local
IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 20294 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
andHONOURABLE MR. JUSTICE SAMIR J. DAVE
==========================================================1Whether Reporters of Local Papers may be allowedto see the judgment ?2To be referred to the Reporter or not ?3Whether their Lordships wish to see the fair copyof the judgment ?4Whether this case involves a substantial questionof law as to the interpretation of the Constitutionof India or any order made thereunder ?==========================================================KRUPALSINH @ KRUNAL S/O RAJENDRASINH SOLANKI Versus STATE OF GUJARAT & ORS.==========================================================Appearance:MR NM PATEL(6042) for the Petitioner(s) No. 1MR.RAJESH B SONI(2632) for the Petitioner(s) No. 1DS AFF.NOT FILED (R) for the Respondent(s) No. 2,3MR RH RAVAL AGP for the Respondent(s) No. 1==========================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJEand HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 06/05/2024
ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
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1. By way of this petition, the petitioner has prayed to quashand set aside the order of detention dated 02.11.2023 passedby the respondent No.2, Commissioner of Police, Surat City inexercise of powers under sub-section (1) of Section 3 of theGujarat Prevention of Antisocial Activities Act, 1985 (for short,'the PASA Act') and to set the detenue free from detention.
2. Learned advocate for the petitioner submitted that theorder of detention has been passed on the ground ofregistration of two offences against the petitioner under theGujarat Prohibition Act. It was submitted that registration ofthe two offences by itself cannot bring the case of the detenuewithin the purview of 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 thealleged illegal activities of the detenue had affected the tempoof society causing threat to the very existence of normal life ofpeople at large or that, on the basis of the criminal case, thedetenue had put the entire social apparatus in disorder makingit difficult for the whole system to exist as a system governed by rule of law by disturbing the 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 illegalactivities 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, itwould 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. State
of 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 thesecond FIR, the detenue was enlarged on bail on 30.10.2023.
Though the lesser drastic remedy of cancellation of bail wasavailable, the same has not been resorted to and straightawaythe order of detention came to be passed on 02.11.2023 andthus, the subjective satisfaction of the detaining stands vitiated.Further, there is no F.S.L. report on record.
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 haveany 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.
9. In the result, the present petition is hereby allowed andthe impugned order of detention dated 02.11.2023 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