SCA/3489/2024 of SHYAMKANT @ SYAM @ RUSHI S/O ANIL VAIRALE THROUGH ANIL PAULAD VAIRALE Vs STATE OF GUJARAT on 6 May 2024

ORAL JUDGMENT

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

1. The present petition is directed against order of detentiondated 27.10.2023 passed by the respondent – detaining authorityin exercise of powers conferred under section 3(2) of the GujaratPrevention of Anti Social Activities Act, 1985 (for short “the Act”)by detaining the petitioner – detenue as defined under section 2(c)of the Act.

2. Learned advocate for the detenue submits that the order ofdetention impugned in this petition deserves to be quashed and setaside on the ground of registration of four offences under Sections379, 114 of IPC by itself cannot bring the case of the detenuewithin the purview of definition under section 2(c) of the Act.Further, learned advocate for the detenue submits that illegalactivity likely to be carried out or alleged to have been carried out,as alleged, cannot have any nexus or bearing with the maintenanceof public order and at the most, it can be said to be breach of lawand order. Further, except statement of witnesses, registration ofabove FIR/s and Panchnama drawn in pursuance of theinvestigation, no other relevant and cogent material is on recordconnecting alleged anti-social activity of the detenue with breachof public order.

3. Learned advocate for the petitioner further submits that it isnot possible to hold on the basis of the facts of the present case thatactivity of the detenue with respect to the criminal cases hadaffected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that onthe basis of criminal cases, the detenue had put the entire socialapparatus in disorder, making it difficult for whole system to existas a system governed by rule of law by disturbing public order.

4. Learned advocate has raised the other grounds for quashmentof detention order, but in view of a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC852], even though the one ground is fake and the other groundsare not fake, the detention order has to be stroked out as not passedin accordance with law.

5. Learned AGP for the respondent State supported the detentionorder passed by the authority and submitted that sufficient materialand evidence was found during the course of investigation, whichwas also supplied to the detenue indicate that detenue is in habit ofindulging into the activity as defined under section 2(c) of the Actand considering the facts of the case, the detaining authority hasrightly passed the order of detention and detention order deservesto be upheld by this Court.

Facts

6. Having heard learned advocates for the parties and havingperused the documents on record, the petitioner has been detainedas a dangerous person by the impugned order of detention dated27.10.2023 passed by the detaining authority -Commissioner ofPolice, Surat City.

7. The detaining authority has relied upon four offences registered at Udhana and Dindoli Police Station respectively, thedetails of which are as under;

8. The perusal of the aforesaid details would indicate that inconnection with the first, second and third offence registered atUdhana Police Station, the petitioner was arrested on 04.07.2023and released on bail on 26.10.2023 whereas in the fourth offenceregistered at Dindoli police station, he was also released on bail on26.10.2023.

9. It appears that the subjective satisfaction arrived at by thedetaining authority cannot be said to be legal, valid and inaccordance with law, inasmuch as the offences alleged in the FIR/scannot have any baring on the public order as required under theAct and other relevant penal laws are sufficient enough to take careof the situation and that the allegations as have been levelledagainst the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(c) of theAct. Unless and until, the material is there to make out a case thatthe person has become a threat and menace to the Society so as todisturb the whole tempo of the society and that all social apparatusis in peril disturbing public order at the instance of such person, itcannot be said that the detenue is a person within the meaning ofsection 2(c) of the Act. Except general statements, there is nomaterial on record which shows that the detenue is acting in sucha manner, which is dangerous to the public order. In thisconnection, it will be fruitful to refer to a decision of the SupremeCourt in Pushker Mukherjee v/s. State of West Bengal [AIR 1970SC 852], where the distinction between 'law and order' and 'publicorder' has been clearly laid down. The Court observed as follows :

“Does the expression "public order" take in every kindof infraction of order or only some categories thereof ?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 must affectthe community or the public at large. In this connectionwe must draw a line of demarcation between seriousand aggravated forms of disorder which directly affectthe community or injure the public interest and therelatively minor breaches of peace of a purely localsignificance which primarily injure specific individualsand only in a secondary sense public interest. A meredisturbance of law and order leading to disorder is thusnot necessarily sufficient for action under the Preventive Detention Act but a disturbance which willaffect public order comes within the scope of the Act.”

10. The Court has also taken in to consideration the fact that thepetitioner was released in aforesaid four offences on 26.10.2023,and thereafter, the order of detention was passed on 27.10.2023and therefore, the order of detention is passed on the very next dayof the order of bail.

11. The Apex Court in the case of Kalidas C. Kahar Vs. State ofGujarat and Ors., reported in 1989 Supple. II SCC 155, has heldthat the detaining authority has to undertake a meaningful exerciseand apply the mind to the documents placed alongwith thesponsoring proposal and then come to the conclusion bysubjectively satisfying itself. Looking to objectively to thedocuments on record and conclude that the detention is the onlyoption available to the petitioner, this exercise is not evident fromeither from the grounds of detention, the documents accompanyingorder of detention or any affidavit of the detaining authority in thisregards.

12. The Court has taken into consideration the fact that thepetitioner has been enlarged by the Court of proper jurisdictionwhere the option of alternative remedy of cancellation of bail wasavailable to the sponsoring authority, which the sponsoringauthority has not resorted to and hence, as is held in recentdecision of the Hon’ble Supreme Court in the case of Shaik Nazeen v/s. State of Telanga and Ors reported in (2023) 9 SCC 633, the Hon’ble Supreme Court has made following observations in para19:- “19. In any case, the State is not without a remedy, as incase the detenu is much a menace to the society as is beingalleged, 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.”

13. 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 otherrelevant and cogent material exists for invoking power undersection 3(2) of the Act.

14. In the result, this Special Civil Application is allowed. Theimpugned order of detention dated 27.10.2023 passed by therespondent authority is hereby quashed and set aside. The detenueis ordered to be set at liberty forthwith if not required in any othercase.

Rule is made absolute accordingly. Direct service is permitted.

(A.Y. KOGJE, J)

K. S. DARJI

(SAMIR J. DAVE,J)