Gujarat High Court
Firoz @ Bhuro Abdulbhai @ Kano ... vs State Of Gujarat on 13 February, 2023
Bench: Hemant M. Prachchhak
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26596 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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 ?
==========================================================
FIROZ @ BHURO ABDULBHAI @ KANO KAIDA (SANDHI) THROUGH
ABDULBHAI @ KANO NATHUBHAI KAIDA (SANDHI)
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR KRUNAL L SHAHI(6519) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR NIKUNJ KANARA, GOVERNMENT PLEADER for the Respondent(s) No.
3
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 6
Downloaded on : Mon Feb 13 21:07:53 IST 2023
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
Date : 13/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. Heard learned advocates appearing for the
respective parties.
2. The present petition is directed against the
order of detention dated 16.12.2022 passed by the
respondent - detaining authority in exercise of the
powers conferred under section 3(2) of the Gujarat
Prevention of Anti Social Activities Act, 1985 (for
short "the Act") by terming the petitioner - detenue
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, since, only on
the ground of registration of the offences 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 by the detenu cannot have any nexus
or bearing on the maintenance of public order and at
the most, it can be said to be a 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
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
cogent material is on record, connecting the alleged
anti-social activity of the detenue with the breach
of public order. Learned advocate for the petitioner
further submits that it is not possible to hold on
the basis of the material on record as well as on the
facts of the present case that the activity of the
detenue has 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 has put the entire
social apparatus in disorder, making it difficult for
the whole system to exist as a system, governed by
rule of law, by disturbing the public order.
4. Learned AGP for the respondent State supported
the detention order passed by the authority and
submitted that sufficient material and evidence are
found during the course of investigation, which are
also supplied to the detenue and which indicate that
the detenue is in the habit of indulging into the
activity, as defined under section 2(c) 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.
5. Having heard the 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
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
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 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 leveled 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 the
public order, at the instance of such a person, it
cannot be said that the detenue is the person, as
described in Section 2(c) of the Act. Except general
statements, there is no material on record, which
would show 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 the
decision of the Hon'ble Supreme Court, rendered in
the case of 'PUSHKER MUKHERJEE V/S. STATE OF WEST
BENGAL', reported in AIR 1970 SC 852, where, the
distinction between the 'law and order' and 'public
order' has been clearly laid down, while observing 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
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
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."
6. In view of above, we are 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 Respondent-
authority cannot have recourse under the Act and no
other relevant and cogent material exists for
invoking the powers under section 3(2) of the Act.
7. In the result, the present petition is hereby
ALLOWED and the impugned order bearing No.
C/SCA/26596/2022 JUDGMENT DATED: 13/02/2023
J/MAG/PASA/CASE NO.65/2022, Dated: 16.12.2022 ,
passed by the respondent-detaining authority is,
hereby, quashed and set aside.
7.1 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.
(VIPUL M. PANCHOLI, J)
(HEMANT M. PRACHCHHAK,J)
UMESH/-
