Anilbhai Lakhabhai Chunara vs State of Gujarat and 2

S.H. Vora, J.—By way of this petition under Article 226 of the Constitution of India, the petitioner challenges the legality and validity of the order of detention dated 25.11.2012 passed by the respondent No. 2 at the instance of respondent No. 3 in purported exercise of powers under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, the ''Act'') at pre-detention stage. Brief facts as arising from the petition are that F.I.R. being Prohibition C.R. No. 5244 of 2011 for the offences punishable under Sections 66(1)(b), 65(a)(e) and 81 of the Bombay Prohibition Act before Kagdapith police station has been lodged against the petitioner. It is alleged in the F.I.R. that on the basis of secrete information, watch was kept and at that time, one auto-rickshaw was coming from Astodiya Darwaja to Big Bazar and the said rickshaw was stopped and three ladies were found sitting in the same with cotton bags. Upon inspection of those cotton bags, stock of 240 liters of ''deshi liquor'' was found out. Upon interrogation, the lady accused stated before the police that the said stock of liquor was brought by them from one Mr. Sunilbhai of Sabarmati and the same was to be given to the petitioner and one Ms. Kaminiben, wife of Saileshbhai Chunara. According to the petitioner, he does not know any of the lady accused apprehended from the scene of offence. The petitioner submits that he was arrested in connection with the said offence on 15.11.2012 and was released on the same day by the learned Magistrate.

Upon serious apprehension that the order of detention has already been passed against the petitioner, the present petition is preferred.

An affidavit-in-reply is filed by the respondent No. 2 contending that the petition filed by the petitioner is not maintainable under the law. In para 5 of the said reply, it is stated by the respondent No. 2 that order of detention is not executed and the petitioner is not detained by the authorities and as such, no rights, much less, any fundamental rights of the petitioner under the Constitution of India are violated by the respondent-authorities. According to the respondent No. 2, the petitioner has preferred this petition at a pre-execution stage apprehending that the respondent authorities would invoke the provisions of the said Act against the petitioner. According to the respondent No. 2, the present petition has been filed with misconception of facts and law at the stage of pre-execution of detention order. It was contended that the petitioner was required to surrender before challenging the order of detention which is not yet served to him. It was further contended that since the detaining authority on a subjective satisfaction, after perusal of relevant materials placed before it including the documents relating to one offence registered against the petitioner that the activities of the petitioner were prejudicial to the maintenance of public order, the order of detention was passed against the petitioner. According to the respondent No. 2, the detaining authority, after carefully considering, pursuing, examining and applying its mind to all the relevant materials placed before it as well as legal provisions applicable to the same, was subjectively satisfied that the petitioner is a ''bootlegger'' person as defined u/s 2(b) of the Act and hence, passed the order of detention against the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order.

Learned advocate Mr. H.R. Prajapati for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre-execution stage in view of the decision of the Hon''ble Apex Court in the case of Deepak Bajaj Vs. State of Maharashtra and Another, According to him, the Hon''ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, and the objections taken at the pre-execution stage by the other side therein, on the identical ground, has held that "we are of the opinion that the five grounds mentioned therein on which the Court can set-aside the detention order at pre execution stage are only illustrative not exhaustive". Learned advocate Mr. Prajapati also relied upon the decision of the Division Bench of this Court in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani v. Commissioner of Police and others delivered in Letters Patent Appeal No. 2732 of 2010 on 28.03.2011. Lastly, he has submitted that it is an established law that the detention in case of solitary prohibition offence registered against detenu under the Act, is against the law. According to him, except solitary prohibition offence, there is no material to indicate that the alleged activity of the petitioner is affecting or likely to affect adversely to the maintenance of public order and hence, the order of detention is illegal and bad in law.

Furthermore, it is averred in para 13-a of the petition that in connection with the offence registered as Prohibition C.R. No. 5244 of 2011 with Kagdapith police station relying upon which order of detention under the PASA Act has been passed against the petitioner, orders of detention dated 25.11.2012 against the other co-accused namely, (1) Manguben W/o. Govindbhai Sakrabhai Chunara (2) Mohd. Arif @ Pathan S/o. Mohd. Hanif Shaikh (3) Babiben w/o. Anilbhai Chinubhai Chunara (4) Hansaben W/o. Rameshbhai Maganbhai Chunara and (5) Kaminiben W/o. Tulsibhai @ Saileshbhai Chunara were passed by the Police Commissioner, Ahmedabad. It is specifically stated by the petitioner in the said para that all the co-accused/co-detenu, orders of detention have been revoked by the State Government having found that the grounds of detention not sufficient to continue further detention. These facts have not been controverted by the State. So, in light of the decision rendered in the case of Chandrasinh Kanuji Rathod v. State of Gujarat Thro. The Public Prosecutor reported in 2012 (1) GCD 370, the petitioner is entitled to get the same relief.

Learned A.G.P. Mr. L.B. Dabhi for the State, on the other hand, submitted that this petition is at pre-execution stage without surrendering before challenging the order of detention. Unless and until the petitioner surrenders, he would not be entitled to get the order as well as the grounds thereunder and the petitioner would not be entitled to copies of the same by filing the present petition.

Before the petition is taken on merits, it is necessary to keep in mind the law as settled by the Division Bench of this Court in the case of (2013) 3 GLR 1968 (Guj) in the matter of petitions challenging the detention order at pre-execution stage and, more particularly, paras 7.11 to 7.14 thereof, which read as under:--

7.11 in Bhaurao (Supra), the Apex Court took notice of the decision of a coordinate Bench in Subhash Muljimal Gandhi Vs. L. Himingliana and Another, In Subhash Muljimal Gandhi (Supra) an order of detention was challenged by the detenue at the pre-execution stage and it was contended by the detenue that the contingency noted in Alka Subhash Gadia (Supra) were illustrative and not exhaustive. Quoting the decision of Subhash Muljimal Gandhi (Supra), the Apex Court made the following observations in Para- 56 and 57;

In this connection, it may be profitable if we refer to a decision of this Court in Subhash Muljimal Gandhi Vs. L. Himingliana and Another, There, an order of detention was challenged by the detenu at pre-execution stage. It was contended by the detenu that the contingencies noted in Alka Subhash Gadia were illustrative and not exhaustive. It was submitted that there might well be other contingencies where such order could be questioned at pre-execution stage. In that case also, it was alleged that the detenu was harassed, humiliated and beaten by authorities and the case called for grant of relief before execution of order of detention.

Negativing the contention and referring to N.K. Bapna Vs. Union of India (UOI) and Others, the Court said;

The above principles laid down in Alka Subhash Gadia have been quoted with approval by another three-Judge Bench in N.K. Bapna Vs. Union of India (UOI) and Others, Bound as we are by the above judgments, we must hold that the other contingencies, if any, must be of the same species as of the five contingencies referred to therein. Coming now to Mr. Jethmalanis submission, that the detention order was passed for a wrong purpose, n63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant preventive detention law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order namely to harass and humiliate the appellant by concocting a false case of smuggling, based primarily on a confession obtained from him after subjecting to him to assault, illegal detention and extortion we find that the detaining authority has denied the allegations of assault and extortion. Needless to say these are disputed questions of fact, which we cannot entertain much less delve into or decide upon. In any case, the said fact, even if true cannot vitiate the order of detention".

(emphasis supplied)

7.12 it will also be profitable for us to quote the observations made by the Apex Court in Para-63 of the said decision;

From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. As a general rule, an order of detention passed by a Detaining Authority under the relevant preventive detention law cannot be set aside by a Writ Court at the pre-execution or pre-arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.

7.13 Thus, in our opinion, the decision of the Supreme Court in Deepak Bajaj(Supra) would not save the situation for the appellant. Even otherwise, the appellant has relied upon the Clauses (3) and (4) as laid down in Alka Subhash Gadia (Supra) i.e. the order is passed for a wrong purpose and the same is on vague, extraneous and irrelevant grounds. We have already discussed in the earlier part of our judgment as to why this submission is without any merit.

7.14 As held by the Supreme Court in Subhash Muljimal Gandhi (Supra), the other contingencies, if any, must be of the same species as of the five contingencies referred to by the Supreme Court in Alka Subhash Gadia (Supra). This is suggestive of the fact that even if there be any other ground available to the detenue i.e. other than the contingencies laid down in Alka Subhash Gadia (Supra), the said contingencies must be of the same species.

In light of the abovementioned decisions of the Hon''ble Apex Court and as discussed by the Division Bench of this Court in the case of Mancharam Samaram Meena (supra), now, it is right time to examine whether in the facts of this case, the Court should interfere with the preventive detention order at the pre-execution stage. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, annexed with the affidavit-in-reply, it appears that the single offence being Prohibition C.R. No. 5244 of 2011 under the Act has been registered against the petitioner with Kagdapith police station. This fact has not been controverted by the detaining authority in the affidavit-in-reply filed in the present matter. It also appears that on the basis of the said solitary case under the Bombay Prohibition Act, the respondent No. 2 has come to the subjective satisfaction that the activities of the petitioner means activities of the "bootlegger" which have disturbed the public order. It is to be noted that there is no other material on record to show that the petitioner is carrying on activity of selling liquor which is harmful to the public health. The preventive detention order mentions that the petitioner is a "bootlegger". The "bootlegger" has been defined u/s 2(b) of the Act, which reads as under:--

2(b). bootlegger means a person who distills, manufactures, slurs, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 (Born. XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing.

In the aforesaid definition, the word ''habitual'' is relevant to be considered. For passing the order of preventive detention, single act cannot be said to be forming the habit of person for bringing person within the definition of "bootlegger" as defined in Section 2(b) of the Act. There should be continuous or repeated act on the part of the detenu. The Hon''ble Apex Court in the case of Vijay Narain Singh Vs. State of Bihar and Others, and, more particularly, in para 31, has observed as under:--

..... The expression habitually means repeatedly or persistently. It implies thread of continuity, stringing together similar repetitive acts. Repeated, persistent and similar, but not isolated, individual and dissimilar acts are necessary to justify an interference of habit. It connotes frequent commission of acts or omissions of the same kind referred to in each of the said sub-clauses or an aggregate of similar acts or omissions".

In the instant case, this is the only incident which has been registered against the petitioner. Therefore, it cannot be said that for this solitary offence registered against the petitioner, the petitioner could be considered to be a "bootlegger, whose preventive detention is must for maintenance of public order. So, the Court is of the considered opinion that the petitioner is not a "bootlegger" and his act, as alleged in the detention order dated 25.11.2012 cannot disturb maintenance of public order and, therefore, the instant case would fall within 4th ground mentioned in the case of Alka Gadia (supra) and, therefore, order of preventive detention at pre-execution stage calls for interference of this Court. As the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and deserves to be quashed and set aside.

The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain the petitioner.

It appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenu within the meaning of Section 2(b) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person. In view of the allegations alleged in the F.I.R./s the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of "law and order." In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushkar Mukherjee and Others Vs. The State of West Bengal, where the distinction between ''law and order'' and ''public order'' has been clearly laid down. The Court observed as follows:

Does the expression "public order" take in every kind of infraction of order or only some categories thereof? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act.

No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and, therefore, the court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question whether it was necessary to preventively detain the detenue. It is also fruitful to refer to the decision of the Hon''ble Apex Court rendered in the case of Rekha Vs. State of T. Nadu tr. Sec. to Govt. and Another, wherein, it is observed by the Hon''ble Apex Court that if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken recourse to.

As a result of hearing and perusal of the record, it appears that the material that was available with the detaining authority was the offences registered against the detenu and on that basis, it cannot be said that the activity of the detenu has become a threat to the maintenance of ''public order'' and ''public health''. Mere involvement of the detenu in such activity may not amount to dangerous activity by the detenu and mere mention of them, unless supported by any evidence, cannot be said to be material germane for the purpose of arriving at the subjective satisfaction that the activity of the detenu is prejudicial to the maintenance of ''public order'' and ''public health''. For the sake of repetition, the commission of offence does not exhibit or disclose that the petitioner is doing infraction of law in an organized or systematic manner so as to come to the conclusion that there is no alternate but to preventively detain the petitioner. In the result, the petition is hereby allowed. Impugned order of detention dated 25.11.2012 passed by the respondent No. 2 against the petitioner is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.