SCA/21084/2023 of ASLAM ALIAS CHOTTU ANVARBHAI MUSTARAHMED SHAIKH Vs STATE OF GUJARAT on 6 May 2024

1. This petition under Article 226 of the Constitution ofIndia is filed for following relief:- “A)That this Honourable Cpirt may be pleased toallow this present Special Civil Application byissuing appropriate writ of habeas corpus or anyother appropriate writ, order or directionquashing and setting aside the impugned order ofdetention Dated 04/09/2023 passed byRespondent no.2 under PCB /DTN PASA-476/2023dated 04/09/2023 at Annex: A and B).” allow this present Special Civil Application byissuing appropriate writ of habeas corpus or anyother appropriate writ, order or directionquashing and setting aside the impugned order ofdetention Dated 04/09/2023 passed byRespondent no.2 under PCB /DTN PASA-476/2023dated 04/09/2023 at Annex: A and B).”

B) & C)xxx”

2. Essentially, the challenge is to the order of detentiondated 04.09.2023 (executed on 01.11.2023) passed by the PoliceCommissioner, Ahmedabad, respondent No.2 herein, by which thepetitioner has been detained as a “dangerous person” based on twooffences registered against 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 on the ground of registration of theoffences underthe Indian Penal Code by itself cannot bring the case of thedetenue within 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 breach ofpublic order.

3.1It is submitted that the offences are pertaining to theftof vehicles of private individuals and will therefore not amountingto breach of public order as no where in the grounds of detention,it is coming 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 bythe 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 ofvehicles. Not only that, there are other supporting evidences also which 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 and that all social apparatus is in perildisturbing public order at the instance of such person, it cannot besaid that the detenue is a person within the meaning of section 2(c)of the Act. Except general statements, there is no material onrecord which shows that the detenue is acting in such a manner,which is dangerous to the public order. 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], wherethe distinction 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 individualsand 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 authority has relied upon to arrive at a subjective satisfaction. At the sametime, the detaining authority has not taken into considerationresorting 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. The Court also finds that there is delay of more thantwo months in passing the order of detention after bail was grantedto the petitioner in second offence on 14.06.2023. The Apex Court in the case of Sushanta Kumar Banik Vs. State of Tripura, reported in AIR 2022 SC 4715 has observed as under:- “11.We are persuaded to allow this appeal on thefollowing two grounds:

(i) Delay in passing the order of detention from the dateof proposal thereby snapping the "live and proximatelink" between the prejudicial activities and the purposeof detention & failure on the part of the detainingauthority in explaining such delay in any manner.

(ii) The detaining authority remained oblivious of thefact that in both the criminal cases relied upon by thedetaining authority for the purpose of passing the orderof detention, the appellant detenu was ordered to bereleased on bail by the special court. The detainingauthority remained oblivious as this material and vitalfact of the appellant detenu being released on bail inboth the cases was suppressed or rather not brought tothe notice of the detaining authority by the sponsoringauthority at the time of forwarding the proposal to passthe appropriate order of preventive detention.

DELAY IN PASSING THE ORDER OF DETENTION

12. We may recapitulate the necessary facts which havea bearing so far as the issue of delay is concerned. Theproposal to take steps to preventively detain theappellant at the end of the Superintendent of Policeaddressed to the Superintendent of Police (C/S) WestTripura, Agartala is dated 28th of June 2021. Theproposal in turn forwarded by the Assistant InspectorGeneral of Police (Crime) on behalf of the DirectorGeneral to the Secretary, Home Department is dated14.07.2021. The order of detention is dated 12th ofNovember, 2021. There is no explanation worth thename why it took almost five months for the detainingauthority to pass the order of preventive detention.

13. There is indeed a plethora of authorities explainingthe purpose and the avowed object of preventivedetention in express and explicit language. We thinkthat all those decisions of this Court on this aspect neednot be recapitulated and recited. But it would suffice to

refer to the decision of this Court in Ashok Kumar v.Delhi Administration and Ors., (1982) 2 SCC 403 ,wherein the following observation is made:

"Preventive detention is devised to afford protection tosociety. The object is not to punish a man for havingdone something but to intercept before he does it andto prevent him from doing."

14. In view of the above object of the preventivedetention, it becomes very imperative on the part of thedetaining authority as well as the executing authoritiesto remain vigilant and keep their eyes skinned but notto turn a blind eye in passing the detention order at theearliest from the date of the proposal and executing thedetention order because any indifferent attitude on thepart of the detaining authority or executing authoritywould defeat the very purpose of the preventive actionand turn the detention order as a dead letter andfrustrate the entire proceedings.

15. The adverse effect of delay in arresting a detenuhas been examined by this Court in a series of decisionsand this Court has laid down the rule in clear termsthat an unreasonable and unexplained delay in securinga detenu and detaining him vitiates the detention order.In the decisions we shall refer hereinafter, there was adelay in arresting the detenu after the date of passingof the order of detention. However, the same principleswould apply even in the case of delay in passing theorder of detention from the date of the proposal. Thecommon underlying principle in both situations wouldbe the "live & proximate link" between the grounds ofdetention & the avowed purpose of detention.

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20. It is manifestly clear from a conspectus of the abovedecisions of this Court, that the underlying principle isthat if there is unreasonable delay between the date ofthe order of detention & actual arrest of the detenu andin the same manner from the date of the proposal andpassing of the order of detention, such delay unlesssatisfactorily explained throws a considerable doubt onthe genuineness of the requisite subjective satisfactionof the detaining authority in passing the detentionorder and consequently render the detention order bad and invalid because the "live and proximate link"between the grounds of detention and the purpose ofdetention is snapped in arresting the detenu. Aquestion whether the delay is unreasonable and standsunexplained depends on the facts and circumstances ofeach case.

21. In the present case, the circumstances indicate thatthe detaining authority after the receipt of the proposalfrom the sponsoring authority was indifferent inpassing the order of detention with greaterpromptitude. The "live and proximate link" between thegrounds of detention and the purpose of detentionstood snapped in arresting the detenu. Moreimportantly the delay has not been explained in anymanner & though this point of delay was specificallyraised & argued before the High Court as evident fromPara 14 of the impugned judgment yet the High Courthas not recorded any finding on the same.”

9. Moreover, learned Advocate for the petitionersubmitted at the bar that three previous detention orders againstthe petitioner were quashed by this Court by judgments and ordersdated 30.11.2027, 07.09.2020 and 04.08.2022 in SCA Nos.19212 of2017, 10721 of 2020 and 14058 of 2022, respectively.

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.

Conclusion

11. In the result, the present petition is hereby allowed and the impugned order of detention dated 04.09.2023 (executed on01.11.2023) passed by the respondent–detaining authority ishereby quashed and set aside. The detenue is ordered to be set atliberty forthwith if not required in any other case. Rule is madeabsolute accordingly.

Direct service is permitted.

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

SHITOLE

Sd/-(SAMIR J. DAVE,J)