Kailash @ Kailash Marwadi S/O Hiralal Sharma Through Bherulal S/O Hiralal Sharma vs State Of Gujarat

Dr. A. P. Thaker, J

Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of rule for and on behalf of the respondent-State.

Heard learned advocates appearing for the respective parties.

The present petition is directed against order of detention dated 11.02.2020 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€

detenu as defined under section 2(b) of the Act.

Learned advocate for the detenu submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of

registration of the offence under Sections 65(E)(A), 98(2), 99 and 81 of the Prohibition Act by itself cannot bring the case of the detenu within the

purview of definition under section 2(b) of the Act. Further, learned advocate for the detenu 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/s and Panchnama drawn in pursuance of the

investigation, no other relevant and cogent material is on record connecting alleged antisocial activity of the detenu 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 detenu

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 detenu 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.

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 detenu indicate that detenu is in habit of indulging into the activity as

defined under section 2(b) 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/s 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 detenu cannot be said to be germane for the purpose of bringing the detenu within the meaning of

section 2(b) 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 detenu is a person within the meaning of section 2(b) of the Act. Except general statements, there is no material on record which shows that

the detenu 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€​

6 In view of above, I am inclined to allow this petition, because simplicitor registration of FIR/s 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.PCB/PASA/DTN/58/2020 dated 11.02.2020 passed by

the respondent â€" detaining authority is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in any other

case. Rule is made absolute accordingly.

Direct service is permitted, today. Registry is directed to send the necessary writ today itself to the concerned Jail Authority by fax and/or email.

In view of the order passed in the main petition, all civil applications do not survive. Accordingly, all civil applications stand disposed of.

Before parting with the final order, it is observed that it is unfortunate that the matter was finally heard in March 2020 and it was kept for order, but

due to the present situation of spread of Covid -19 and lockdown, the final order could not be delivered earlier.