SCA/20213/2023 of RAMESHBHAI KOLANJI KAVANDAR Vs COMMISSIONER OF POLICE AHMEDABAD CITY on 6 May 2024

1. The present petition is directed against order of detentiondated 01.11.2023 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 dangerous person.

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 three offences under 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 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. 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 social apparatus in disorder, making it difficult for whole system to existas a system governed by rule of law by disturbing public order.

3. Learned advocate has raised the other grounds for quashmentof detention order, but in view of a decision of the Supreme Courtin 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.

4. 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

5. Having heard learned advocates for the parties and havingperused the documents on record, the petitioner has been detainedas Dangerous Person by an order of detention dated 01.11.2023 bythe Commissioner of Police, Ahmedabad City and the grounds ofdetention would indicate that the detaining authority has reliedupon four offences registered with Amraiwadi Police Station andRamol Police Station respectively, details of which in tabular formare as under:

6. From the details as afore-stated it is apparent that aforesaidthree offences are registered against the present petitioner underthe provisions of the Indian Penal Code and merely because threeoffences have been registered against the petitioner-detenue, thatby itself, does not have any bearing on the maintenance of publicorder.

7. 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 anybaring 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. Unless and 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 on recordwhich shows that the detenue is acting in such a manner, which isdangerous to the public order. In this connection, it will be fruitfulto refer to a decision of the Supreme Court in Pushker Mukherjeev/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 specific personsdoes not lead to public disorder. When two people quarrel andfight and assault each other inside a house or in a street, it maybe said that there is disorder but not public disorder. Such casesare dealt with under the powers vested in the executiveauthorities under the provisions of ordinary criminal law butthe culprits cannot be detained on the ground that they weredisturbing public order. The contravention of any law alwaysaffects order but before it can be said to affect public order, itmust affect the community or the public at large. In thisconnection we must draw a line of demarcation between seriousand aggravated forms of disorder which directly affect thecommunity or injure the public interest and the relatively minorbreaches of peace of a purely local significance which primarilyinjure specific individuals and only in a secondary sense publicinterest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under thePreventive Detention Act but a disturbance which will affectpublic order comes within the scope of the Act.”

8. 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.

9. 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 Nazeenv/s. State of Telanga and Ors reported in (2023) 9 SCC 633, theHon’ble Supreme Court has made following observations in para19:- “19. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then theprosecution should seek for the cancellation of his bail and/or movean appeal to the Higher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedy under the facts andcircumstances of the case.

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

11. In the result, this Special Civil Application is allowed. Theimpugned order of detention dated 01.11.2023 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 ispermitted.

(A.Y. KOGJE, J)

K. S. DARJI

(SAMIR J. DAVE,J)