SCA/20152/2023 of ABID S/O AJIJ SHAIKH THRO NADIM S/O AJIJ SHAIKH Vs STATE OF GUJARAT on 6 May 2024

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)xxxx B)That this Hon’ble Court may be pleased to allowthis present Special Civil Application by issuingappropriate writ of habeas corpus or any othberappropriate writ, order or direction quashing andsetting aside the impugned order of detentionAnx-A dated 02.11.2023 passed by respondentno.2.”this present Special Civil Application by issuingappropriate writ of habeas corpus or any othberappropriate writ, order or direction quashing andsetting aside the impugned order of detentionAnx-A dated 02.11.2023 passed by respondentno.2.”

C) & D)xxx”

2. Thus essentially, the challenge is to the order ofdetention dated 02.11.2023 passed by the Police Commissioner,Surat, respondent No.2 herein, by which the petitioner has beendetained as a “dangerous person” based on two offences registeredagainst him, details of which are as under:-

3. Learned advocate for the detenue submits that theorder of detention impugned in this petition deserves to be quashedand set aside as registration of theoffences under Sections of theIndian Penal Code 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 maintenance of 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 breach ofpublic order. Learned advocate for the petitioner further submitsthat it is not possible to hold on the basis of the facts of the presentcase that activity of the detenue with respect to the criminal caseshad affected even tempo of the society causing threat to the veryexistence 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.

3.1It is submitted that the offences are pertaining to theftof cloths of private individuals and will therefore not amounting tobreach of public order as no where in the grounds of detention, it iscoming out that the sporadic act of the petitioner has causeddisturbance to public order. In any case, option was alwaysavailable to the detaining authority to resort to cancellation of bailof the petitioner.

4. As against this, learned AGP submitted that thedetaining authority had sufficient material on the record to pass theorder of detention, particularly reference to the same is made by the detaining authority in the very order of detention where thedetaining authority has referred to the fact that it was thepetitioner who had himself confessed to commission of theft ofcloths. Not only that, there are other supporting evidences alsowhich the detaining authority has taken into consideration likedrawing of panchnama, which led to discovery of vehicle of whichtheft was committed. The FIRs registered against the petitionerare under Chapter-16 and 17 of IPC, thereby attracting theingredients of “dangerous person”.

5. Having heard learned advocates for the parties andconsidering the facts and circumstances of the case, it appears thatthe subjective satisfaction arrived at by the detaining authoritycannot be said to be legal, valid and in accordance with law,inasmuch as the offences alleged in the FIR/s cannot have anybearing on the public order as required under the Act and otherrelevant penal laws are sufficient enough to take care of thesituation and that the allegations as have been levelled against thedetenue cannot be said to be germane for the purpose of bringingthe detenue within the meaning of section 2(c) of the Act. Unlessand until, the material is there to make out a case that the personhas become a threat and menace to the Society so as to disturb thewhole tempo of the society. In this connection, it will be fruitful torefer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where thedistinction between 'law and order' and 'public order' has beenclearly 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 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 leading todisorder is thus not necessarily sufficient for actionunder the Preventive Detention Act but a disturbancewhich will affect public order comes within the scope ofthe Act.”

6. As is held in the preceding paras, the offence in whichthe petitioner is involved, are against private individuals and thepetitioner has been enlarged on bail and therefore, ordinary law issufficient to prevent the petitioner from indulging in furtheroffence, particularly when the petitioner has been granted bail inconnection with both the offences on which the detaining authorityhas relied upon to arrive at a subjective satisfaction. At the same time, the detaining authority has not taken into considerationrestoring to the procedure for cancellation of bail.

7. The Court has also taken into consideration the factthat the petitioner has been enlarged on regular bail by the Courtof competent jurisdiction and the detention order does not reflectapplication of mind to the fact that the Detaining Authority hasconsidered cancellation of bail to be ineffective method to curtailactivities of the petitioner. Therefore, in the opinion of the Court,the Detaining Authority not having taken into consideration thecancellation of bail option. The subjective satisfaction would standvitiated as is held in recent decision of the Hon’ble Supreme Courtin the case of Shaik Nazeen v/s. State of Telanga and Ors.reported in 2023 (9) SCC 633, the Hon’ble Supreme Court hasmade following observations in para 19 as 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. Moreover, this Court by judgment and order dated06.05.2024 in SCA No.20158 of 2023 has quashed order ofdetention qua co-detenue.

9. 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.

10. In the result, the present petition is hereby allowed andthe impugned order of detention dated 02.11.2023 passed by therespondent–detaining authority is hereby quashed and set aside.The detenue is ordered to be set at liberty forthwith if not requiredin any other case. Rule is made absolute accordingly.

Direct service is permitted.

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

SHITOLE

Sd/-(SAMIR J. DAVE,J)