Mohammad Safi Abdul Salam Badam vs State Of Gujarat
2021 Latest Caselaw 5311 Guj

            C/SCA/14632/2020                                    ORDER



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 14632 of 2020
                                  With
     CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2020
             In R/SPECIAL CIVIL APPLICATION NO. 14632 of 2020
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                    MOHAMMAD SAFI ABDUL SALAM BADAM
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Petitioner(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Petitioner(s) No. 1
MS.NIDHI VYAS, AGP (1) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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 CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 03/05/2021

                                ORAL ORDER

1. By way of this petition, the petitioner-detenu has challenged the order of detention dated 01.10.2020 passed by the detaining authority, in exercise of powers conferred on him under sub-section(1) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, 'the PASA Act') and has also prayed for an order to set him free from detention.

3. I take notice of the fact that in the grounds of detention order, the detaining authority has relied upon six cases registered under various sections.

4. Section 2(b) of the PASA Act defines the term 'bootlegger', which reads as under:-

"S.2(b) "bootlegger" means a person who distills, manufactures, stores, transports, imports, exports, sells or

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distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Bombay Prohibition Act, 1949 (Bom.XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animals, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing."

5. Section 3 of the PASA Act speaks about the power to make orders detaining certain persons. It reads as under:

"Sec.3 Power to make orders detaining certain persons: (1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.

(2) If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of Police, may also, if satisfied as provided in sub- section (1), exercise the powers conferred by the said subsection. (3) When any order is made under this section by an authorised officer, he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, has a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.

(4) For the purpose of this section, 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 offender or property

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grabber, which affect adversely or are likely to affect adversely the maintenance of public order.

Explanation:- For the purpose of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health."

6. In this connection, I may 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."

7. Having heard the learned counsel for the parties and having gone through the grounds of detention, in my opinion, the detaining authority has failed to substantiate that the alleged antisocial activities of the

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petitioner-detenu adversely affect or are likely to affect adversely the maintenance of public order. Just because six cases have been registered against the petitioner-detenu under the Prohibition Act, by itself, do not have any bearing on the maintenance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community much less public health. It may be that the petitioner-detenu is a 'bootlegger' within the meaning of Section 2(b) of the PASA Act, but merely because he is a 'bootlegger' he cannot be preventively detained under the provisions of the PASA Act unless, as laid down in sub-section (4) of Section 3 of the PASA Act, his activities as a 'bootlegger' affect adversely or are likely to affect adversely the maintenance of public order.

8. Mr. Antani, the learned advocate appearing for the detenu submitted that the order of detention is malicious, unjust and illegal. Learned counsel submitted that there is no material available with the detaining authority to indicate that the detenu is a dangerous person as defined under Section 2(c) of the PASA Act nor there is any material or antecedent to show that he is a habitual offender and involved in antisocial activities prejudicial to the maintenance of public order. It is his case that this order of detention is nothing but abuse of power at the hands of the Police Commissioner.

9. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the order of detention deserves to be quashed. I am concerned only with the question as to whether there are

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sufficient grounds and materials available to detain the detenu in prison without trial in exercise of powers conferred under Section 3(2) of the PASA Act, describing him as a 'dangerous person' under Section 2(c) of the Act on the basis of the six F.I.Rs. registered against the detenu. On plain reading of the allegations levelled in the F.I.Rs., by any stretch of imagination, it cannot be said that the incidents in question were such which disturbed the public order, peace and tranquility.

10. At this stage, it would be expedient to quote the judgment rendered by the Division Bench of this Court in the matter of Ramesh Vandha Modhwadiya through brother, Laxmanbhai Vandha v. State of Gujarat, reported in 2009(3) GLH 296, wherein in paragraph 11, the Division Bench has observed as under:-

"11. PASA Act has been enacted with a clear object to prevent the crime and to protect the society from anti-social elements and dangerous characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. Law is well settled that the power under the Act should be exercised with restraint and great caution. In order to pass an order of detention under the Act against any person, the detaining authority must be satisfied that he is a `dangerous person' within the meaning of Section 2(c) of the PASA Act, who 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 as according to sub-section (4) of Section 3 of the Act it is such `dangerous person' who for the purpose of Section 3 shall be deemed to be a person "acting in any manner prejudicial to

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the maintenance of public order" against whom an order of detention may lawfully be made. Further, subsection (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of `public order'. The explanation attached to sub-section (4) of Section 3 reproduced above in the foregoing para contemplates that `public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly, are causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be `acting in any manner prejudicial to the maintenance of public order' when such person is a `dangerous person' and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a `dangerous person' his alleged activities fall within the ambit of the expression `public order'. A distinction has to be drawn between law and order and maintenance of public order."

10.1 In paragraphs 15 and 16, the Division Bench has, after considering the factual position on the record, observed as under:-

"15. We find that even going by the F.I.R. on the date of incident, it is alleged that the dentenu's father had a pistol with him. There is nothing to show that he had fired with the pistol or caused any harm to anybody. Possession of pistol by detenu's father without license may be an offence so far as father is concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the programme continued without any

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disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R. it is stated that they had not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have raised problems of law and order, but we find it impossible to see that they impinged public order. No motive was also attributed against the detenu for creating such an incident. In order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order to fall out and extend and reach of the alleged activities must be of such a nature the ordinary law cannot deal with it or prevent the subversive activities affecting the society. In our view, those incidents are not sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question occurred on 10.02.2008 would be sufficient to disturb the tempo of life of the community so as to disturb the public tranquility and public order.

16. The incident referred to in the F.I.R. had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are being tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1- B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to detain a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual offender, apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public tranquility, but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The solitary incident pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere fact

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that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution."

11. In the recent pronouncement of the Supreme Court in the matter of Pebam Ningol Mikoi Devi v/s. State of Manipur and others, reported in (2010)9 SCC 618, the Supreme Court has considered all aspects pertaining to individual liberty and has also held that in a criminal case, if it is initiated against the detenu, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to pass an order of preventive detention under the National Security Act.

12. In the result, this petition succeeds and is hereby allowed. The order of detention dated 01.10.2020 passed by the respondent authority is hereby ordered to be quashed and the detenu is ordered to be set at liberty forthwith if he is not required in any other case. Rule is made absolute.

13. In view of the disposal of the main SCA, Civil Application for fixing date of hearing will also not survive and hence, the same is also disposed of.

The Registry is directed to communicate this order to the concerned jail authority by fax or e-mail.

(BIREN VAISHNAV, J) ANKIT SHAH / BIMAL