AI Structured Summary
Not yet generated for this judgment
Judgment
S.H.Vora, J
Heard learned advocates appearing for the respective parties.
The present petition is directed against order of detention dated 20.4.2020 passed by the respondent â€" detaining authority in exercise of powers
conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Actâ€) by detaining the petitioner â€
detenue as defined under section 2(c) of the Act.
Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground
of registration of the offences being FIR No.A- 11184007200312/2020 registered with Nasvadi Police Station under Sections 332, 353, 186, 294(b),
506(2), 269, 188 and 114 of the IPC, and u/s 51(a) of the Disaster Management Act, 2005, by itself cannot bring the case of the detenue within the
purview of definition under section 2(c) of the Act. Further, learned advocate for the detenue submits that illegal activity 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 law and order. Further, except statement of witnesses, registration of above FIR and Panchnama drawn in pursuance of the
investigation, no other relevant and cogent material is on record connecting alleged anti- social activity of the detenue with breach of public order.
Learned advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the
detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of
people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to
exist as a system governed by rule of law by disturbing public order.
Needless to say that whenever an order of detention is challenged by the detenue or his next friend, it is the duty of the authority to justify action by
filing counter-affidavit preferably by the detaining authority himself, unless there are circumstances which may justify filing of affidavit by an officer or
authority other than detaining authority. No reply is filed in the present proceedings.
Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence
was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as
defined under section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and
detention order deserves to be upheld by this Court.
Having heard learned advocates for the parties and considering the facts and circumstances of the case, 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 cannot
have any baring on the public order as required under the Act 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 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 person has become a threat and menace to the Society so as
to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said
that the detenue is a person within the meaning of section 2(c) of the Act. Except general statements, there is no material on record 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,] 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.â€
The gist of the FIR reflects that substantial allegation in the FIR is to obstruction/interference by the petitioner and other accused when police were
enforcing lock-down measures. Looking to the definition of dangerous person as defined in section 2(c) of the PASA Act, it appears that there is no
mention of provisions of section 51(a) of the Disaster Management Act, 2005. Similarly, there are certain provisions invoked under IPC, which do not
fall under Chapter XVI or XVII of the IPC. Dangerous person defined under section 2(c) of the PASA Act means a person who either by himself or
as a member of the leader of gang habitually commits or attempt to commit or abates the commission of any of the offences punishable under Chapter
XVI or XVII of the IPC or any other offences punishable under Chapter V of the Arms Act, 1959. It appears that there should be repeated or
continuous act amounting to the offence referred in the definition. In the present case, once solitary offence is registered against the petitioner and
Detaining authority failed to consider two important aspects viz. non mention of offence punishable under Disaster Management Act and also certain
provisions of IPC, which do not fall under Chapter XVI or XVII of the IPC while considering material placed before it in the definition of dangerous
person.
In view of above, I am inclined to allow this petition, because simplicitor registration of FIR by itself cannot have any nexus with the breach of
maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power
under section 3(2) of the Act. In the result, the present petition is hereby allowed and the impugned order of detention No. MAG/VASHI/09/2020
dated 20.4.2020 passed by the respondent â€" detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith
if not required in any other case.
Rule is made absolute accordingly. Registry to communicate this order to the petitioner through concerned jail authority by email of fax. Direct
service permitted.
In view of above, connected Civil Application also stands disposed of.