Bharatbhai Karanbhai Bharwad ... vs District Magistrate
2022 Latest Caselaw 3693 Guj

     C/SCA/18697/2021                             JUDGMENT DATED: 29/03/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18697 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          No

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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        BHARATBHAI KARANBHAI BHARWAD THROUGH HIS COUSIN
                 BHARWAD SUNILKUMAR VAJUBHAI
                              Versus
                      DISTRICT MAGISTRATE
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Appearance:
MR SADIK A ANSARI(5388) for the Petitioner(s) No. 1
MR. ADITYASINH JADEJA, AGP for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 29/03/2022

                             ORAL JUDGMENT

1. Heard learned advocates appearing for the respective parties.

2. The present petition is directed against order of detention dated 7.10.2021 passed by the respondent - detaining authority in exercise of powers conferred under section 3(2) of the Gujarat

C/SCA/18697/2021 JUDGMENT DATED: 29/03/2022

Prevention of Anti Social Activities Act, 1985 (for short "the Act") by detaining the petitioner - detenue as 'dangerous person' as defined under section 2(c) of the Act.

3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground that registration of the Five FIRs, the details of which are given in the order of detention, under the provisions of the Indian Penal Code, by itself, cannot bring the case of the detenue within the purview of definition under section 2(c) of the Act. Further, learned advocate for the detenue 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 FIRs and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue 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 detenue 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 detenue 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.

4. Mr. Adityasinh Jadeja, 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 detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(c) of the Act and considering the facts of the case, the

C/SCA/18697/2021 JUDGMENT DATED: 29/03/2022

detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

5. 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 FIRs 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 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, 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 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

C/SCA/18697/2021 JUDGMENT DATED: 29/03/2022

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."

6. In the case of Rekha Versus State of Tamilnadu reported in (2011) 5 SCC 244, the Hon'ble Supreme Court has observed in paragraph No.30 as under:-

"30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

7. It appears from record that the detenu has been arrested in five FIRs and he has been released on bail in all the aforesaid FIRs. Even as per Section 2 (c) of the Act, a person can be termed as "dangerous person", who either by himself or as a member or leader of a gang, during three successive years habitually commits, or attempts to commit or abets the commission of any of the offences punishable under the Indian Penal Code or any other Act. In view of this, one of the condition is that "dangerous person" means who habitually commits or attempts to commit or abet the commission of offence during three successive years, which is absent in the present case.

8. 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

C/SCA/18697/2021 JUDGMENT DATED: 29/03/2022

have recourse under the Act and no other relevant and cogent material exists for invoking power under the Act. In the result, the present petition is hereby allowed and the impugned order of detention No. MAG/PASA/25/2021 dated 7.10.2021 passed by the respondent - detaining authority against the detenue is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case.

9. Rule is made absolute accordingly. Direct service is permitted.

(DR. A. P. THAKER, J) SAJ GEORGE