Jakir Alias Bangali Nashirbhai Abdul Sattar Qureshi Throu Friend Nayyum Usmanbhai Qureshi vs State Of Gujarat

Umesh A. Trivedi, J

This petition under Article 226 of the Constitution of India is directed against the order of preventive detention dated 3.1.2020 made by Respondent

No.2 - Commissioner of Police, Ahmedabad city, bearing No.PCB/DTN/PASA/12/2020 in exercise of power under sub- section (2) of Section 3 of

the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, 'the Act') whereby, the petitioner has been detained as 'Dangerous Person'. The

said order of detention came to be executed upon the petitioner on the very same day.

Mr. Arbaazkhan A. Pathan, learned advocate for the petitioner, has drawn the attention of the Court to the contents of the impugned order of

detention and submitted that for branding the petitioner as 'Dangerous Person', under Section 2 (c) of the Act, the detaining authority has relied on two

cases registered against him being (1) C.R.No.I-19 of 2017 registered with Kalupur Police Station for the alleged offence punishable under Sections

379, 114 and 511 of the Indian Penal Code (for short, 'IPC'), and (2) C.R.No.I-123 of 2019 registered with Narol Police Station for the alleged

offence punishable under Sections 454, 457, 380 and 114 IPC. Over and above that, according to the submission of the learned advocate for the

petitioner, there are stereotyped statements of two anonymous witnesses recorded by the sponsoring authority on 02.01.2020 and claimed to be

verified by the detaining authority on 03.01.2020. He has further submitted that considering the FIRs of the registered offences and the record of the

cases, it is clear that there is no material to arrive at a subjective satisfaction that the activities carried on by the petitioner are in any manner

prejudicial or likely to be prejudicial to the maintenance of public order.

It is submitted that the first case relied on by the authority came to be registered on 14.2.2017 for which the petitioner came to be arrested on

18.02.2017 and ordered to be released on bail by an order dated 20.02.2017, therefore, it is submitted that the said case is too stale to be considered

for arriving at a subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order as on 03.01.2020, the date

of passing of order of preventive detention. Even if independently, as argued by the learned advocate for the petitioner, it is considered, it cannot be

said that there is any breach of public order.

It is urged that if the first case is taken out of consideration there remains a solitary offence against the petitioner which came to be registered on

15.7.2019, in which the petitioner came to be arrested on 20.07.2019 and ordered to be released on bail on 26.07.2019. Therefore, it is urged that even

if based on that solitary offence, if petitioner is sought to be preventively detained, the live link between the last offence committed by him on

15.7.2019 and order of release on bail dated 26.7.2019 and the purpose of passing an order of preventive detention dated 3.1.2020 is snapped. It is

further submitted by the learned advocate that if at all the activities of the petitioner were prejudicial to the maintenance of public order considering the

registration of an offence against him, no man of a normal prudence would have waited for passing an order of preventive detention till

03.01.2020.Therefore, on the ground of delay also, the order of preventive detention is vitiated and requires to be set aside, as submitted by learned

advocate for the petitioner.

As against that, Mr.Shivam Dixit, learned AGP has supported the impugned order of detention. It is submitted that detaining authority has closely

examined the proposal made by the sponsoring authority and upon being subjectively satisfied that the activities of the petitioner are prejudicial to the

maintenance of public order has passed the impugned order, which is just, legal and proper and does not warrant any intervention by this Court.

The orders under preventive detention laws are passed to prevent a person from acting in any manner prejudicial to the maintenance of public order

and unless and until a person can be dealt with under the penal statutes, no order of preventive detention be resorted for. So far as first case relied on

by the detaining authority for passing an order of preventive detention is concerned, it is clear from the FIR of the registered offence and the record of

that case that the present petitioner â€" detenue with accomplices stolen the wallet of the complainant by sitting besides him in Auto Rickshaw. Not

only the said case is too stale to be considered for passing an order of detention, at any rate, for passing an order of preventive detention against a

person to prevent him from acting in any manner prejudicial to the maintenance of public order, the case registered in remote past cannot be

considered or relied on by the authority.

If the first case is taken out of consideration by the detaining authority for arriving at a subjective satisfaction, there remains solitary offence which

came to be registered on 15.7.2019 in proximate time. If the FIR, as also the record of the said case is considered, the petitioner â€" detenue with his

accomplices stolen the clothes from the godown and also tried to sell it out. Neither from the FIR nor from the record of the case, the activities of the

petitioner can be said to be causing any hindrance to the maintenance of public order.

Coming to the next submission about delay in passing an order of preventive detention, from the facts of the present case, it is clear that last

offence committed by the petitioner is on 15.7.2019 whereas, an order of preventive detention came to be passed only on 3.1.2020. The impugned

order of preventive detention is, therefore, liable to be set aside on the ground of delay in passing the order of preventive detention. There must be live

and proximate link between the grounds of detention alleged by the detaining authority and the purpose of detention. The live and proximate link

between the order of detention and the purpose for which it has been passed is snapped in the present case on account of undue, unreasonable and

unexplained delay in passing the order of detention. If only the solitary offence, in proximate time, at serial number 2 is to be relied on for passing an

order of preventive detention, it could have been passed if not on the day of commission of offence but within a reasonable time if his activities are to

be assessed as prejudicial to the maintenance of public order. Here in the present case, the detaining authority took about 5 months and 18 days to

pass an order of preventive detention based on the prejudicial activities of the petitioner carried out in the month of July, 2019. Therefore, on this

ground also, subjective satisfaction arrived at by the detaining authority is vitiated.

In view of the above, the petition is allowed. The impugned order of detention bearing No.PCB/DTN/PASA/12/2020 passed by respondent No.2

herein â€" Police Commissioner, Ahmedabad City dated 3.1.2020, is hereby quashed and set aside and the petitioner â€" detenue is hereby ordered to

be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute.