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Judgment
Dr. Ashokkumar C. Joshi, J
By way of this petition, the petitioner - detenue has prayed to quash and set aside the order of detention bearing No. PCB/DTN/PASA/145/2020
dated 05.02.2020 passed by the concerned authority in exercise of powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social
Activities Act, 1985 (for short 'the PASA Act') by detaining the detenue as a 'dangerous person' as defined under Section 2(c) of the Act.
I have heard the arguments advanced by learned advocate Mr. Kurven K. Desai for the petitioner and also learned AGP Mr. Bhargav Pandya.
2.1 Mr. Desai for the petitioner has vehemently submitted that there are only two FIRs pertaining to offences under IPC, out of which, first FIR being
I-C.R. No. 39/19 for the offences punishable under sections 380, 454, 457 is registered with Khokhra Police Station on 16.04.2019 for theft of articles
worth Rs.8,70,500/-, whereas, the second one being I-C.R. No. 11191007200077/2020 for the offences punishable under sections 379(a)(3) and 114
has been registered with Bapunagar Police Station on 29.01.2020 for theft of mobile phone worth Rs.4,000/-. It is submitted that in the both the cases,
the petitioner â€" detenue is enlarged on bail by the concerned Court. It is also submitted that the offences for which the present petitioner â€
detenue is charged with, thus, cannot be termed as so grave that the petitioner be branded as dangerous person and therefore, it is urged that the
detention order may be set aside.
Per contra, learned AGP Mr, Pandya, has vehemently objected the present petition and submitted that two FIRs are already filed pertaining to
offences under IPC, more particularly, pertaining to the serious offence of theft and therefore, the present detention order is just and proper.
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/s cannot
have any bearing on the breach of 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 (two FIRs), 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 Hon’ble Supreme Court in Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852, where the distinction between 'law
and order' and 'public order' has been classically laid down, which is as under:
“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 distinction between ""public order"" and ""law and order"" has been carefully defined in a Constitution Bench judgment of the Hon’ble
Supreme Court in the case of Dr. Ram Manohar Lohia v. State of Bihar & Others, (1966) 1 SCR 709. In this judgment, His Lordship Hidayatullah, J.
by giving various illustrations clearly defined the ""public order"" and ""law and order"". Relevant portion of the judgment reads as under:
....Does the expression ""public order"" take in every kind of disorder or only some? The answer to this serves to distinguish ""public order"" from ""law
and order"" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public
disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must
affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under
the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to
prevent subversion of public order but not in aid ofmaintenance of law and order under ordinary circumstances.
It will thus appear that just as ""public order"" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those
affecting ""security of State"", ""law and order"" also comprehends disorders of less gravity than those affecting ""public order"". One has to imagine three
concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle
represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but
not security of the State.…
In Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and others, reported in AIR 2003 SC 97,1 the Hon’ble Supreme
Court made the following observations:
“The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs.1000/-.
Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the
locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act it is stated that
the case of 'Goonda' the acts prejudicial to public order are 'when he is engaged, or is making preparations for engaging, in any of his activities as a
goonda which affect adversely, or are likely to affect adversely, the maintenance of public order'. The question whether a man has only committed a
breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of
the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to
bring the case within the purview of the Act providing for preventive detention.â€
In Siddharth @ Sindhu Laxmanbhai Thorat v. District Magistrate, Navsari, in Letters Patent Appeal No.1020 of 2019 dated 08.05.2019, this Court
has made following observations:
“8. Having regard to the facts and circumstances of the case, We find that though there are powers available under section 3(1) of the Act,
ordinary law of Indian Penal Code under which FIRs are registered in four offences for which punishment is prescribed in the Indian Penal Code, is
sufficient and order of detention cannot be passed as a short cut to exhaust such remedy. Ordinarily, this Court will be loath in interfering with
subjective satisfaction of the detaining authority. While arriving at subjective satisfaction, the detaining authority is supposed to undertake objective
assessment of the material available. In this connection, we may refer to the judgment of this Court in Letters Patent appeal No.2732 of 2010, dated
28.3.2011 in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others, wherein, this Court has quoted the
observations made by Apex Court in the case of Pushker Mukherjee vs. State of West Bengal, reported in AIR 1970 SC 852, wherein distinction is
drawn between public order and law and order. The Supreme Court observed in the said judgment as under:
“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€
It is also fruitful to refer to the judgment of the Hon’ble Supreme Court in the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 98,
wherein, the Hon’ble Supreme Court has observed as under:
“... Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community
taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals
which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon
the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man
stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may
dislike the act â€
Further in the case of Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta, Commissioner of Police and Others, 1995 (2) GLR 1268 observed as under:
“8. The Act has defined ""Dangerous Person"" in clause (c) of section 2 to mean a person who either by himself or as a member or leader of a gang
habitually commits or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Penal
Code or any of the offences punishable under Chapter V of the Arms Act. The expression 'habit' or 'habitual' has, however, not been defined under
the Act. According to The Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), p. 499, 'habitually' means constant, customary and addicted to
specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed
to prison more than twice. The word 'habitually' means 'usually' and 'generally'. Almost similar meaning is assigned to the words 'habit' in Aiyar's
Judicial Dictionary, 10th Edn., p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be
proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to
conclude that a particular person is a ""dangerous person"" unless there is material suggesting his complicity in such cases which lead to a reasonable
conclusion that the person is a habitual criminal. In Gopalanchari v. State of Kerala, AIR 1981 SC 674 this Court had an occasion to deal with
expressions like ""bad habit"", 'habitual', 'desperate', 'dangerous', and 'hazardous'.
Upon above sets of discussion in fleri, considering the totality of circumstances of this case, in my humble opinion the detaining authority has failed
to substantiate that the alleged antisocial activities of the petitioner detenue adversely affect or are likely to affect adversely the maintenance of public
order. The order of detention, therefore, cannot be sustained and deserves to be quashed and set aside.
In view of above, I am inclined to allow this petition, because simplicitor registration of FIRs 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(1) of the Act. In the result, the present petition is hereby allowed and the impugned order of detention No.
PCB/DTN/PASA/145/2020 dated 05.02.2020 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.
In view of main petition is allowed, Civil Application No. 1 of 2020 for temporary bail does not survive and the same is disposed of accordingly.
The Registry is directed to communicate this order to the concerned jail authority by fax or e-mail.