Gujarat High Court
Firoz @ Formen Atikbhai Latifbhai ... vs The State Of Gujarat on 29 January, 2021
Bench: Sonia Gokani
C/SCA/9123/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9123 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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FIROZ @ FORMEN ATIKBHAI LATIFBHAI ARAB THRU HIS MOTHER
NADIRABNU ATIKBHAI LATIFBHAI ARAB
Versus
THE STATE OF GUJARAT & 2 other(s)
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Appearance:
RAZIN S ZEENA(9377) for the Petitioner(s) No. 1
MR UTKARSH SHARMA, ASST.GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2,3
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 29/01/2021
ORAL JUDGMENT
C/SCA/9123/2020 JUDGMENT
1 This is a petition preferred under Article 226 of the
Constitution of India seeking to challenge the order
of detention bearing No.PCB/DTN/PASA/554/2020
dated 25.07.2020 passed under sub-section(1) of
section 3 of the Gujarat Prevention of Anti-Social
Activities Act, 1985 ("the PASA Act" for short), where
the present petitioner has been branded as
dangerous person under section 2(c) of the said Act
by virtue of the order passed by respondent No.2,
Police Commissioner, Ahmedabad city. The
petitioner is detained in jail and is presently in
Surat Central Jail. Dissatisfied with the said order of
25.07.2020 he is before this Court with the following
prayers:-
"6. On the aforesaid grounds and
those that may be urged at the time of
hearing, the petitioner therefore pray
that:-
(A) YOUR LORDSHIP be pleased to
issue appropriate writ, order or directions
of this Hon'ble High Court, quashign and
setting aside the detention order dated
25/07/2020 at Annexure "A" to the
petition placing the petitioner under
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preventive detention, in purported exercise
of their powers under the Gujarat
Prevention of Antisocial Activities Act,
1985, as being illegal, null and void and
further be pleased to released the
petitioner forthwith;
(B) YOUR LORDSHIPS be pleased to
dispense with filing of affidavit in support
of this petition as the facts are taken from
record and also the petitioner is in jail
undergoing detention order in question;
(C) YOUR LORDSHIPS be
pleased to release the petitioner from his
detention pending the admission, hearing
and final disposal of this petition;
(D) YOUR LORDSHIPS be pleased to
pass such other and further relief that is
just, fit and expedient in the facts and
circumstances of the case may be
granted."
2 Two offences are alleged against the present
petitioner for detaining him under the PASA Act.
One being CR.No.I-11191024200317/2020 dated
19.03.2020 registered with Ramol police station for
the offence punishable under section 454, 457, 380,
114 of the Indian Penal Code and another being
CR.No.I-11191008200709/2020 dated 26.06.2020
for the offences punishable under sections 454, 457,
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380 and 114 of the Indian Penal Code.
3 It is the grievance on the part of the petitioner that
there is no evidence and material on the basis of
which reasonable inference can be drawn as regards
the adverse effect to the maintenance of public order
or to the public health. It cannot be said that the
activities of the detenue has caused any harm or
danger to feeling of insecurity amongst the general
public. Therefore, the present petition.
4 Rule came to be issued on 06.08.2020. Matter when
came up for hearing, learned advocate Mr. Razin
Zeena appearing with learned advocate Mr.O.I.
Pathan for the petitioner argued at length before this
Court to urge that this petitioner cannot be said to
be a dangerous person or his activities affecting
adversely the public order. This is essentially a
matter of theft and statements of secret witnesses
are all got up. It is impermissible to move out due to
lock down. The First Information Report came to be
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registered three months after. As can be
easily seen from the First
Information Report of 26.06.2020, the incident is of
08.03.2020.
5 Learned Assistant Government Pleader has urged
this Court not to interfere, as, according to him, it is
nature of crime, which makes the petitioner a
serious threat to the society. The authority never
had any personal enmity, but the person is so
dangerous that every household is unsafe because
of his activities. Till he was out, the authority, of
course, had booked him under the provisions of the
Indian Penal Code, but the activities were such,
which would not allow any interference. He is
preventively detained and, hence, subjective
satisfaction arrived at by the authority concerned
deserves no interference.
6 She, further, has urged that the statement of the
secret witnesses are regarded because they were
unable to convey or come out openly and lodge a
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complaint against the petitioner. It is not only the
threat to their lives, but to their family members and
noticing the modus operandi of the present
petitioner and his associates, those persons cannot
be blamed nor can they be asked to openly seek
assistance of the prosecution.
7 The petitioner is alleged of having committed the
theft of valuable gold and silver articles and the
amount of theft also is allegedly quite high. The First
Information Report is of 19.03.2020 lodged by one
Kaushikbhai Jayantibhai Soni near Anupam cinema
three roads, Khokhra police station.
8 On 29.06.2020, the In-Charge officer DCB police
station addressed a communication by Police Sub-
Inspector, Crime Branch stating therein that on a
tip off that Dharmesh alias Jato, Pravin alias
Bachchan and Ranjit Dineshsinh Waghela came in
auto-rickshaw of Dharmesh, registration number
being GJ-01-TF-0629 and active scooter of Ranjit,
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registration number being GJ01-MY-0427 and stood
at Shahpur Shanker Bhuvan Petrol pump. He had
mobile phone and ornaments, which he was wanting
to sell. He was cordoned off. Dharmesh alias Jato
was driving the auto-rickshaw. At the back side
Firoz, alias forman son of Atikbhai Latifbhai,
resident of Gulmor society was sitting, another
person sitting with Firoz was Pravin alias Bachchan
and on Activa, Ranjit Dineshsinh Waghela was
present. Gold and silver ornaments were found,
which were worth Rs.4,05,630/-.
9 Yet another First Information Report dated
26.06.2020 for the offence dated 08.03.2020 is by
complainant Niraj Rajubhai Taide, who have spoken
of the theft in his house of gold and silver
ornaments.
10 Apt would be to refer to the decisions where the
person detained under the preventive detention law
is held to be a "dangerous person" under the PASA
Act.
11 Instead of giving independent and separate findings
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in that regard, reference is needed of
some of the judgements rendered
by the Apex Court as under:-
11.1 In this background, the Court shall also need to
regard the decision of the Apex Court in the case of
'AMANULLA KHAN KUDEATALLA KHAN VS.
STATE OF GUJARAT ', AIR 1999 SC 2197, where,
the Apex Court was considering as to who can be
termed as the dangerous person or a habitual
offender. In the matter before the Apex Court, the
detaining authority on being satisfied from the
materials about activities of the detenu that he
belongs to a notorious gang and the members of the
gang hatched conspiracy to extort money from the
people, by putting them under threat of fear of
death, was satisfied that the detenu is a 'dangerous
person' within the meaning of Section 2[c] of the Act
and the activities of the detenu and his gang
members were such that for maintenance of public
order it was necessary to detain the detenu and
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accordingly the order of detention against the
detenu was passed. The Apex Court, on hearing
both the sides, held that the subjective satisfaction
arrived at by the respondent authority is just and
thereby, it refused to interfere with the order of
detention. The relevant findings and observations
read thus:
"3. The detaining authority on being
satisfied from the activities of the detenu
that he belongs to a notorious gang and
the members of the gang hatched
conspiracy to extort money from the
people who are engaged in building
construction business in the city by
putting the people under threat of fear of
death, was satisfied that the detenu is a
dangerous person within the meaning of
Section 2[c] of the Act and the activities of
the detenu and his gang members were
such that for maintenance of public order
it was necessary to detain the detenu and
accordingly the order of detention against
the detenu was passed. Immediately after
the order of detention was passed, the
detenu approached the Gujarat High
Court as already stated inter alia on the
ground that the single activity of the
detenu for which CR No. 36/97
under Sections 120-B, 387 and 506(2) IPC
had been registered is not sufficient to
hold him to be a dangerous person within
the meaning of Section 2[c] of the Act and
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as such the order of detention is vitiated.
By the impugned Judgment, the High
Court came to the conclusion that the
satisfaction of the detaining authority was
not based solely on the incident
culminating in registration of the criminal
case under Sections 120-
B, 387 and 506(2) of the Indian Penal
Code but also the incidents that happened
on 26.7.98 and 2.8.98 about which the
two witnesses have stated before the
detaining authority and therefore, the
satisfaction of the detaining authority,
holding the detenu to be a dangerous
person cannot be said to be vitiated.
4. Mr. Anil Kumar Nauriya, the
learned counsel appearing for the detenu
in this court reiterated the same
contention namely that a single incident
in which the detenu is alleged to be
involved and for which the criminal case
had been registered will not be sufficient
to hold the detenu to be a dangerous
person under Section 2[c] of the Act
inasmuch as the expression dangerous
person has been defined to be a person
who either by himself or as a member or
leader of a gang, during a period of three
successive years, habitually commits, or
attempts to commit or abets the
commission of any of the offences
punishable under Chapter XVII of the
Indian Penal Code or any of the offences
punishable under Chapter V of the Arms
Act, 1959. In other words according to the
learned counsel unless the activities of the
detenu considered by the detaining
authority indicate that he has either
habitually committed or attempted to
commit or abet the commission of offence,
cannot be held to be a dangerous person
C/SCA/9123/2020 JUDGMENT
under Section 2[c] of the Act. The
expression habitually would obviously
mean repeatedly or persistently. It
supplies the threat of continuity of the
activities and, therefore, as urged by the
learned counsel for the petitioner an
isolated act would not justify an inference
of habitually commission of the activity. In
this view of the matter the question that
requires adjudication is whether the
satisfaction of the detaining authority in
the present case is based upon the
isolated incident for which the criminal
case was registered or there are incidents
more than one which indicate a repeated
and persistent activity of the detenu. If the
grounds of detention is examined from the
aforesaid stand point, it is crystal clear
that apart from the criminal case which
had been registered against the detenu for
having formed a gang and hatched a
conspiracy to extort money from the
innocent citizens by threatening them and
keeping them under constant fear of
death, the two witnesses examined by the
detaining authority narrated the incident
that happened on 26.7.98 and 2.8.98 in
which the detenu was involved and on the
first occasion a sum of Rs. 1 lac was
demanded and when the person
concerned refused, he was dragged and
assaulted and on the second occasion a
sum of Rs. 50 thousand was demanded
and on refusal, the persons were dragged
on the road and were beaten on the public
road. It is not the grievance of the detenu
that the statements of the aforesaid two
witnesses had not been appended to the
grounds of detention or had not been
mentioned in the grounds of detention. In
fact the grounds of detention clearly
mention the aforesaid state of affairs and
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there is no bar for taking these incidents
into consideration for the satisfaction of
the detaining authority that whether the
person is a dangerous person within the
ambit of Section 2[c] of the Act. We,
therefore, fail to appreciate the first
contention raised by the learned counsel
for the petitioner that the satisfaction of
the detaining authority that the detenu is
a dangerous person is based upon the
solitary incidence in respect of which a
criminal case has already been registered.
In our considered opinion the detaining
authority has considered the three
different incidents happened on three
different dates and not a solitary incidence
and, therefore, the test of repeatedness or
continuity of the activity is fully satisfied
and the satisfaction of the detaining
authority holding the detenu to be a
dangerous person is not vitiated in any
manner. The contention of the learned
counsel for the petitioner therefore stands
rejected.
5. Mr. Anil Kumar, the learned
counsel then urged that even if the
activities of the detenu were sufficient to
hold him to be a dangerous person yet an
order of detention can be passed under
the Gujarat Act only with a view to prevent
the detenu from acting in any manner
prejudicial to the maintenance of the
public order. By virtue of provisions
contained in Sub-section (4) of Section 3
of the Act a person shall be deemed to be
acting in any manner prejudicial to the
maintenance of public order when such
person is engaged in or is making
preparation for engaging in any activities,
whether as a bootlegger or dangerous
person or drug offender or immoral traffic
C/SCA/9123/2020 JUDGMENT
offender or property grabber, which affect
adversely or are likely to affect adversely
the maintenance of public order. Thus
maintenance of public order is sine qua
non for passing an order of detention
under Section 3 of the Gujarat Act. But in
the case in hand the alleged activities of
the detenu are all in relation to violation of
the normal criminal law and it has got no
connection with the maintenance of public
order and, therefore, the order of
detention is vitiated. We are unable to
appreciate this contention of the learned
counsel for the detenu inasmuch as even
an activity violating an ordinary legal
provision may in a given case be a matter
of public order. It is the magnitude of the
activities and its effect on the even tempo
of life of the society at large or with a
section of society that determines whether
the activities can be said to be prejudicial
to the maintenance of public order or
not. In Mustakmiya Jabbarmiya Shaikh
vs. M.M. Mehta, Commisioner of Police
and Ors. 1995(3) SCC 237, it has been
held by this court that in order to bring
the activities of a person within the
expression of acting in any manner
prejudicial to the maintenance of public
order, the fall out and the extent and
reach of the alleged activities must be of
such a nature that they travel beyond the
capacity of the ordinary law to deal with
him or to prevent his subversive activities
affecting the community at large or a large
section of society. It is the degree of
disturbance and its impact upon the even
tempo of life of the society or the people of
a locality which determines whether the
disturbance caused by such activity
amounts only to a breach of law and order
or it amounts to breach of public order.
C/SCA/9123/2020 JUDGMENT
Applying the ratio of the aforesaid decision
to the facts of the present case we find
that the activities of the detenu by trying
to extort money from ordinary citizens by
putting them to fear of death and on their
refusal to part with the money to drag
them and torture them on public road
undoubtedly affected the even tempo of
life of the society and, therefore such
activities cannot be said to be a mere
disturbance of law and order. In our
considered opinion the activities of the
detenu are such that the detaining
authority was satisfied that such activities
amount to disturbance of public order and
to prevent such disturbance the order of
detention was passed. We, therefore, do
not find any substance in the second
contention of the learned counsel for the
detenu. Mr. Anil Kumar then urged that
the Advisory Board having not indicated
that the detenu is to be detained for more
than three months, has failed to discharge
its constitutional obligation and there has
been an infringement of Article 22(5) of
the Constitution and in support of the
same reliance has been placed on the
decision of this court in A.K. Gopalan vs.
The State of Madras, 1950 SCR 88 and
the decision of this Court in John Martin
vs. The State of West Bengal, 1975(3) SCR
211. At the outset it may be stated that
the detenu had not made any such
grievance in the writ petition that had
been filed in the Gujarat High Court. That
apart, the opinion of the Advisory Board to
the State Government, rejecting the
representation of the detenu and
expressing its opinion with regard to the
existence of sufficient cause for the
detention of the detenu is not a part of the
record and what is pressed into service by
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the learned counsel in support of his
argument is the mere communication
from the Section Officer of the Home
Department dated 27th August, 1998,
intimating the factum of the rejection of
representation by the Advisory Board.
Section 11 of the Act is the procedure for
making reference to the Advisory Board
and Section 12 provides the duties and
obligation of the Advisory Board on the
basis of materials placed before it. Under
Sub-section (2) of Section 12 it is the
requirement of law that the report of the
Advisory Board shall specify in a separate
part thereof the opinion of the Advisory
Board as to whether or not there is
sufficient cause for the detention of the
detenu and this opinion of the Advisory
Board has been furnished in the present
case. We really fail to understand how a
contention could be raised that the
Advisory Board has failed to discharge its
obligation and how the court would be
entitled to examine the same without even
the copy of the report of the Advisory
Board being formed a part of the records
of the present proceedings. In view of the
counter affidavit filed in the present case
that all the provisions have been duly
complied with and in the absence of any
material to support the arguments
advanced by the learned counsel, we do
not find any force in the contention raised
alleging any infraction of provision of law
in the opinion given by the Advisory Board
and the said Board in rejecting the
representation of the detenu. This
contention therefore, is devoid of force."
11.2 In case of 'SUBRAMANIAN VS. STATE OF TN & ANOTHER',
(2012) 4 SCC 699; the Apex Court was considering
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the as to when would be the public
order can be said to be disturbed. It denotes the
tempo of the community, the use of the weapons
and the damage caused to the public and private
property, threatening public tempo and creating
panic amongst the people in a locality and this was
held sufficient to disturb the public order. The
relevant observations are as under:
"9) With regard to the first submission
that no case is made out for preventive
detention by invoking the provisions of
T.N. Act 14 of 1982, though the ground
case incident arose out of a land dispute
between the detenu and the de facto
complainant, however, the argument that
it is only a law and order problem and
that public order was not disturbed is
contrary to the facts and equally
untenable. As rightly pointed out by Mr.
Guru Krishnakumar, the Detaining
Authority, on consideration of materials
placed has found that the accused caused
damage to both public and private
properties, threatened the public and also
created a situation of panic among the
public. In this regard, it is useful to refer
the materials narrated in the grounds of
detention which are as follows:
"On 18.07.2011, at about 10:00 hours,
while Kaliyamoorthy was available in the
STD booth, Kajamalai Kadaiveethi,
Kajamalai, Tiruchirapalli city, the accused
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Kajamalai Viji @ Vijay armed with aruval,
his associates Manikandan, Uthayan,
Sathiya, Sivakumar armed with Kattas
came there. The accused Kajamalai Viji @
Vijay abused Kaliyamoorthy in a filthy
language, threatened to murder him with
aruval by saying "Have you become such a
big person to give complaints against me.
You bastard, try giving a complaint, I will
chop you down right here."
His associates threatened him with their
respective kattas. Thereafter, the accused
Kajamalai Viji @ Vijay caused damage to
the glasses, chair and stool available in
the shop. While Kaliyamoorthy questioned
them, the accused Kajamalai Viji @ Vijay
slapped him on the face. Kaliyamoorthy
raised alarm for rescue. The general
public came there and they were
threatened by the accused Kajamalai Viji
@ Vijay and his associates by saying "if
anyone turns up as witness, I will kill
them." The nearby shop-keepers closed
their shops out of fear. Auto drivers took
their autos from the stand and left the
place. The situation created panic among
the public. On the complaint of
Kaliyamoorthy, a case in K.K. Nagar P.S.
Cr. No. 361/2011 u/s 147, 148, 447, 448,
427, 294(b), 323, 506(ii) IPC and 3 P.P.D.
Act was registered."
10) From the above materials, the
Detaining Authority was satisfied that the
detenu is habitually committing crimes
and also acting in a manner prejudicial to
the maintenance of public order and as
such he is a `goonda' as contemplated
under Section 2(f) of the T.N. Act 14 of
1982. The order further shows that the
Detaining Authority found that there is a
compelling necessity to detain him in
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order to prevent him from indulging in
such activities in future which are
prejudicial to the maintenance of public
order. After narrating the details of the
ground case and after adverting to earlier
instances commencing from the years
2008 and 2010, the Detaining Authority
has concluded as under:-
"Hence, I am satisfied that the accused
Kajamalai Viji @ Vijay is habitually
committing crimes and also acting in a
manner prejudicial to the maintenance of
Public order and as such he is a Goonda
as contemplated under Section 2(f) of the
Tamil Nadu Act No. 14 of 1982. By
committing the above described grave
crime in a busy locality cum business
area, he has created a feeling of insecurity
in the minds of the people of the area in
which the occurrence took place and
thereby acted in a manner prejudicial to
the maintenance of public order."
11) It is well settled that the court does
not interfere with the subjective
satisfaction reached by the Detaining
Authority except in exceptional and
extremely limited grounds. The court
cannot substitute its own opinion for that
of the Detaining Authority when the
grounds of detention are precise,
pertinent, proximate and relevant, that
sufficiency of grounds is not for the Court
but for the Detaining Authority for the
formation of subjective satisfaction that
the detention of a person with a view to
preventing him from acting in any manner
prejudicial to public order is required and
that such satisfaction is subjective and
not objective. The object of the law of
preventive detention is not punitive but
only preventive and further that the action
of the executive in detaining a person
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being only precautionary, normally, the
matter has necessarily to be left to the
discretion of the executive authority. It is
not practicable to lay down objective rules
of conduct in an exhaustive manner. The
satisfaction of the Detaining Authority,
therefore, is considered to be of primary
importance with certain latitude in the
exercise of its discretion."
11.3 Reliance is also placed on the decision of this Court
in Special Civil Application No. 6414 of 2020,
Dated : 12.06.2020, where, the Court was
considering the question of detaining authority
having termed the petitioner as the dangerous
person under Section 2(C) of the PASA Act. Relying
on the decision of the Apex Court in 'PUSHKER
MUKHERJEE V. STATE OF WEST BENGAL',
AIR 1970 SC 852, 'DR. RAM MANOHAR LOHIA
V. STATE OF BIHAR & OTHERS', (1966) 1 SCR
709 and 'DARPAN KUMAR SHARMA ALIAS
DHARBAN KUMAR SHARMA V. STATE OF T.N.
AND OTHERS', AIR 2003 SC 971 and other
decisions, the Court held that the detaining
authority failed to substantiate the aspect that the
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alleged anti-social acts of the petitioner-detenu
adversely affected or likely to adversely affect the
maintenance of public order. Profitable, it would be
to reproduce the relevant findings and observations,
which read thus:
"4. 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
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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."
5. The distinction between "public order"
and "law and order" has been carefully
defined in a Constitution Bench judgment
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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 of maintenance of law and order
under ordinary circumstances. It will thus
appear that just as "public order" in the
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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...."
6. In Darpan Kumar Sharma alias
Dharban Kumar Sharma v. State of
T.N. and others, reported in AIR 2003
SC 971, 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 '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
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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."
7. 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
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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."
8. 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:
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"... 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...."
9. 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
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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'."
11.4 In 'Mustakmiya Jabbarmiya Shaikh' (Supra),
the Court examined the expression 'habit' or
'habitual' offender to hold that '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. However, it does not refer to the
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frequency of the occurrence and invariably the
practice and the habit.
11.5 This Court in Special Civil Application No. 8592 of
2020 also was considering the case of the petitioner,
who was detained under Section 2(C) of the PASA
Act as a dangerous person, on the basis of the
criminal case registered against him for the offence
under the Disaster Management Act, on the ground
that the activities of the petitioner was affecting the
maintenance of the public order and the order under
challenge was not upheld. While so doing, the Court
relied on the decision in 'DR. RAM MANOHAR
LOHIA' (Supra).
11.6 On the basis of the law on the subject, what needs to
be regarded by this Court is, as to whether, the kind
of infraction or the order can be regarded as
prejudicial to the maintenance of the public order
and whether the same would be governed under the
public order.
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11.7 As can be noticed from the decision of the Apex
Court in 'PUSHKER MUKHERJEE' (Supra), it is
not a case of two people quarreling and fighting with
each other either in their house or in the streets,
and therefore, there was disorder, but, not public
disorder. Such cases are dealt with the ordinary
criminal laws and obviously, no person could have
been detained on the ground that they were
disturbing public order. Such contravention of the
law would always vitiate the order, as is held by the
Apex Court. But, before it is said to have affected
the public order, it must affect the public at large.
Therefore, the Court has drawn a line, demarcating
between serious and grave danger and injury to the
public interest and relatively minor breach of peace
of purely local, which is primarily of local and is not
likely to affect the public order. It would be vital for
this Court to consider, as to whether, it can be said
to be mere disturbance of law and order, leading to
disorder, as provided under the PASA Act.
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11.8 The public order, as held in case of 'ARUN GHOSH'
(Supra), is said to embrace more of the community
than law and order. The Court even went to an
extent to state that 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.
11.9 On the strength of the law on the subject, if, the
actions of the petitioner are considered from the
material, which has been presented on record, this
Court notices that there are two FIRs registered
against him, which speaks of the theft of
motorcycles. The person had gone to serve, after
parking his motorcycle in the parking and when he
returned, he found the same to be missing.
Likewise, the second FIR filed with the JP Road
Police Station also speaks of such theft of the vehicle
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by unknown persons. It is vital to make a mention,
at this stage, the various statements recorded of the
police personnel, who had formed a team at DCB
Police Station. There was increase in number of
theft of motorcycles within the city of Vadodara, and
therefore, various teams were formed and used of
CCTV footages and surveillance and other modes
were also used to detect the crime. In such an
attempt of nabbing the criminals, while Team-2 was
in patrolling on an input received that some persons
were trying to sell the motorcycles, which were
allegedly stolen, those persons were cordoned and
the motorcycle with engine and chassis number,
but, without any RTO registration was found.
Thereafter, it was realized that there had been theft
of about 10 motorcycles and later on, the father of
co-detenue and the petitioner in Special Civil
Application No. 9515 of 2020 produced the same.
The details of the same is forming the part of the
statement of the secret witnesses.
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11.10 At the first go, this may appear to be the case of only
two FIRs, and therefore, the question arose of
whether, the expression 'habit' or 'habitual' can be
applied to someone, who has allegedly involved in
two of such crimes. As held in the case of
'Mustakmiya Jabbarmiya Shaikh' (Supra), it
does not refer to the frequency of the occasion and
frequency of the occasions but to the invariability of
practice and the habit has to be proved by totality of
facts. Being aware of the fact 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 the case on hand, it
can, surely, be stated that the acts of the petitioner
are, though, directed against individuals or in
essence in a locality and it determines that it is not
only amounts to disturbance of the law and order
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but it also does affect the public order. This, surely,
cannot be said to be a breach of peace of local
significant, injuring only the specific individual and
noticing the number of theft of motorcycles and the
plethora of material to substantiate this aspect, it
will be difficult for this Court to held that the
subjective satisfaction arrived at by the respondent-
authority is without any valid basis.
12 Noticing the involvement of the present applicant in
a matter where indiscriminately they are causing
fear and terror in the minds of the common man
and their activities are not out of any personal
enmity, but are against the entire society. The Court
is the opinion that the subjective satisfaction arrived
at by the authority concerned deserves no
interference.
13 Resultantly, this petition fails and is DISMISSED .
Rule is discharged.
(MS. SONIA GOKANI, J. )
SUDHIR
