Aamirkhan Munavarkhan Pathan ... vs State Of Gujarat
2022 Latest Caselaw 3764 Guj

     C/SCA/283/2022                             JUDGMENT DATED: 30/03/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 283 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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      Whether Reporters of Local           Papers   may be
 1                                                                     YES
      allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                             YES

      Whether their Lordships wish to see the fair copy
 3                                                                      NO
      of the judgment ?
   Whether this case involves a substantial question
 4 of law as to the interpretation of the Constitution                  NO
   of India or any order made thereunder ?

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  AAMIRKHAN MUNAVARKHAN PATHAN THROUGH REHANABIBI
                 MUNAVARKHAN PATHAN
                           Versus
                     STATE OF GUJARAT
=======================================
Appearance:
MR GULSHAD G PATHAN(10115) for the Petitioner(s) No. 1
MS MEGHA CHITALIYA, AGP for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                       Date : 30/03/2022

                        ORAL JUDGMENT

1. Heard learned advocates appearing for the respective parties.

2. The present petition is directed against an order of detention dated 14.12.2021 passed by the respondent No. 2 in

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exercise of the powers conferred under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as "the Act").

3. Brief facts leading to the present petition are that the petitioner is ordered to be detained by the order dated 14.12.2021 passed by the respondent No.2 with a view to preventing him from acting in any manner prejudicial to the maintenance of the public order in exercise of powers conferred by Sub-section (1) of Section (3) of the Act.

4. The 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 solitary offence under Sections 8(c), 20(b) and 29 of the NDPS Act, by itself cannot bring the case of the detenue within the purview of definition under Section 3(1) of the Act. He has contended that the order passed by the authority is without application of mind. To substantiate his argument, the learned advocate for the petitioner has drawn the attention of the Court to Annexure "A", wherein it is observed by the Director General of Police, CID Crime and Railways, Gujarat State, Gandhinagar that the action of the petitioner is against the public order and therefore, he is taken into the custody. He has also drawn the attention of this Court to Section 3 of the Act, which lays as under :

        "3. Power     to   make        orders    detaining           certain
        persons.--

(1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if

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satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention."

4.1 It is contended by the learned advocate for the petitioner that from the plain reading of the said section, it is clearly established that the authority is to satisfy itself with respect to any person (including a foreigner) that, with a view to preventing him/her from engaging in Illicit traffic in Narcotic Drugs and Psychotropic Substances, if it is necessary so to do, make an order directing that such person be detained. Such type of satisfaction is missing in the order. Further, it is submitted that the trial Court concerned has granted bail to the petitioner and that, there is no sufficient and/or credible material to support the detention order.

4.2 It is further submitted by the learned advocate for the petitioner that the detaining authority has to consider from the material gathered that the activities alleged against the detenue is an obstruction to the public order and a reasonable inference is required to be drawn as regards the adverse effect of the activity

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on the maintenance of public order and public health. He submitted that material available on record in the case on hand is not sufficient and adequate for holding that the alleged activities are prejudicial and either affected adversely or likely to affect adversely to maintenance of the public order. Thus, making such submissions, it is urged that the impugned order is required to be set aside and the petitioner may be ordered to be released.

5. Per contra, Ms. Megha Chitaliya, learned AGP for the respondent State has contended that the activities of the petitioner is dangerous to the public law and order and the petitioner may repeat such type of offence, if he is released. She has relied upon the Notification dated 08.08.2018, wherein it is stated that in exercise of the power conferred under Section 3 of the Act, the Government of Gujarat is empowered as DGP/ Additional Director General of Police (CID Crime) for making order of detention of person engaging in Illicit traffic in Narcotic Drugs and Psychotropic Substances to exercise powers under Section 3 of the Act. Accordingly, it is urged that this petition may not be entertained and it is requested to be dismissed.

6. Having heard learned advocates for the respective 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 offence alleged in the FIR cannot have any baring on the public order / health 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 3(1) of the Act. Unless and until, the material is there to

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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 3(1) 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." 9.

6.1 In the case of Rekha Versus State of Tamilnadu, (2011) 5 SCC 244, the Apex Court has observed in paragraph

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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."

6.2 This Court has assistance of the orders passed by this Court in Special Civil Application Nos. 5752 of 2021, 722 of 2021, 5614 of 2021, 16097 of 2021, 19226 of 2021 and 16646 of 2019.

7. In the result, the petition succeeds and is hereby allowed. The aforesaid impugned order of detention dated 14.12.2021, Annexure 'A' to the petition, passed by the respondent - detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.

[ A. C. Joshi, J. ] hiren /63