SCA/19623/2023 of SURAJYAKANTI ALIAS URMILA UDAYNATH BARIK THROUGH HIS DAUGHTER MAMA JENA MANAS RANJAN Vs STATE OF GUJARAT on 6 May 2024

Issues

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)

1. This petition under Article 226 of the Constitution of India is filed for following relief:- “a)The Hon’ble Court may be pleased to issue a writ of Habeas Corpus be issued, the order ofdetention may be quashed and set-aside, therespondents be directed to get Smt.Surajyakantialias Urmila Udaynath Barik at liberty forthwithin connection to detention order passed by theCommissioner of Police, Surat, Order No.PCB/PASA /DTN /890 2023 Dated : 27/10/2023(Annexure-A).

(b) & (c)xxx”

2. Thus, essentially, the challenge is to the order ofdetention dated 27.10.2023 passed by the Police Commissioner,Surat, respondent No.2 herein, by which the petitioner has beendetained under the provisions of PASA for “public order” based ontwo offences registered against him, the details of which are asunder:-

3. Learned Advocate for the petitioner submits that theorder of detention impugned in this petition deserves to be quashedand set aside as registration of offences under Sections of theIndian Penal Code and the Immoral Traffic (Prevention) Act, 1956

by itself cannot bring the case of the petitioner within the purviewof definition under section 2(g) of the Act. Further, learnedadvocate for the petitioner submits that illegal activity likely to becarried out or alleged to have been carried out, as alleged, cannothave any nexus or bearing with the maintenance of public orderand at the most, it can be said to be breach of law and order.Further, except statement of witnesses, registration of above FIR/sand Panchnama drawn in pursuance of the investigation, no otherrelevant and cogent material is on record connecting alleged anti-social activity of the petitioner with breach of public order. Learnedadvocate for the petitioner further submits that it is not possible tohold on the basis of the facts of the present case that activity of thepetitioner with respect to the criminal cases had affected eventempo of the society causing threat to the very existence of normaland routine life of people at large or that on the basis of criminalcases, the petitioner had put the entire social apparatus indisorder, making it difficult for whole system to exist as a systemgoverned by rule of law by disturbing public order.

4. Learned AGP for the respondent State supported thedetention order passed by the authority and submitted thatsufficient material and evidence was found during the course ofinvestigation, which was also supplied to the petitioner indicatethat petitioner is in habit of indulging into the activity as defined

Facts

under section 2(g) of the Act and considering the facts of the case,the detaining authority has rightly passed the order of detentionand detention order deserves to be upheld by this Court.

5. Having heard learned advocates for the parties andhaving perused documents on record, it appears that the subjectivesatisfaction arrived at by the detaining authority cannot be said tobe legal, valid and in accordance with law, inasmuch as theoffences alleged in the FIR/s cannot have any baring on the publicorder as required under the Act and other relevant penal laws aresufficient enough to take care of the situation and that theallegations as have been levelled against the petitioner cannot besaid to be germane for the purpose of bringing the petitioner withinthe meaning of section 2(g) of the Act. Unless and until, thematerial is there to make out a case that the person has become athreat and menace to the Society so as to disturb the whole tempoof the society and that all social apparatus is in peril disturbingpublic order at the instance of such person, it cannot be said thatthe petitioner is a person within the meaning of section 2(g) of theAct.

6. It also appears that the petitioner has been detained as"Immoral Traffic Offender" by the order of detention dated28.08.2023 by the Police Commissioner, Surat City and along withthe order of detention, wherein, the Detaining Authorities has relied upon two offences. On perusal of the offences, it appearsthat the first offence registered on 11.11.2022, for which thepetitioner was arrested on 12.11.2022 and enlarged on bail on01.02.2023, whereas, the second offence was registered on10.10.2023, wherein the petitioner was arrested on 10.10.2023itself and was enlarged on 21.10.2023 and the order of detentioncame to be passed on 27.10.2023. Thus, there is a delay of 6 daysin passing the order of detention.

7. The Supreme Court in the case of Shaik Nazeen v/s.

State of Telanga and Ors. reported in 2023 (9) SCC 633, theHon’ble Supreme Court has made following observations in para 19as under:- “19.In any case, the State is not without a remedy, asin case the detenue is much a menace to the society asis being alleged, then the prosecution should seek forthe cancellation of his bail and/or move an appeal to theHigher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedyunder the facts and circumstances of the case.”

8. In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where the distinction between'law and order' and 'public order' has been clearly laid down. TheCourt observed as follows:- “Does the expression "public order" take in every kindof infraction of order or only some categories thereof ?

Conclusion

It is manifest that every act of assault or injury tospecific persons does not lead to public disorder. Whentwo people quarrel and fight and assault each otherinside a house or in a street, it may be said that there isdisorder but not public disorder. Such cases are dealtwith under the powers vested in the executiveauthorities under the provisions of ordinary criminallaw but the culprits cannot be detained on the groundthat they were disturbing public order. Thecontravention of any law always affects order butbefore it can be said to affect public order, it mustaffect the community or the public at large. In thisconnection we must draw a line of demarcationbetween serious and aggravated forms of disorderwhich directly affect the community or injure the publicinterest and the relatively minor breaches of peace of apurely local significance which primarily injure specificindividuals and only in a secondary sense publicinterest. A mere disturbance of law and order leadingto disorder is thus not necessarily sufficient for actionunder the Preventive Detention Act but a disturbancewhich will affect public order comes within the scope ofthe Act.”

9. The Court has taken into consideration the fact that the petitioner is a lady accused. Moreover, detaining authorityalongwith the grounds of detention has referred to and relied uponthe statements of secret witnesses. These statements were thepart of the proposal made by the sponsoring authority andforwarded to the detaining authority where the detaining authorityhad recorded the verification with regard to the statements of thesecret witnesses and thereafter immediately on the very day, theorder of detention has been passed. In the opinion of the Court,the detaining authority did not have sufficient time to apply itsmind to the record which is alongwith the grounds of detention forwarded by the sponsoring authority, undertake the exercise ofverification of the statements of the secret witnesses andimmediately passed the order of detention. In absence of suchsubjective satisfaction, the order of detention is required to bequashed.

10. In view of above, we are inclined to allow this petition,because simplicitor registration of FIR/s by itself cannot have anynexus with the breach of maintenance of public order and theauthority cannot have recourse under the Act and no other relevantand cogent material exists for invoking power under section 3(2) ofthe Act.

11. In the result, the present petition is hereby allowed andthe impugned order of detentiondated 27.10.2023 passed by therespondent – detaining authority is hereby quashed and set aside.The petitioner is ordered to be set at liberty forthwith if notrequired in any other case.

12. Rule is made absolute accordingly.

Direct service is permitted.

Sd/-(A.Y. KOGJE, J)

SHITOLE

Sd/-(SAMIR J. DAVE,J)