Gujarat High Court
Omprakash S/O Nehrulal Gupta ... vs State Of Gujarat on 7 February, 2023
Bench: Hemant M. Prachchhak
C/SCA/26189/2022 JUDGMENT DATED: 07/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 26189 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 ?
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OMPRAKASH S/O NEHRULAL GUPTA THROUGH BHOOPAL
RAMNARAYAN GUPTA
Versus
STATE OF GUJARAT
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Appearance:
POOJA D BASWAL(9601) for the Petitioner(s) No. 1
MS NIRALI G SHARDA AGP for the Respondent(s) No. 3, 1,2
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 07/02/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
C/SCA/26189/2022 JUDGMENT DATED: 07/02/2023
1. Heard learned advocate for the petitioner and learned
AGP, appearing for all the respondents, upon instruction.
2. The present petition is directed against order of
detention dated 12.12.2022 passed by the respondent -
detaining authority in exercise of powers conferred under
section 3(2) of the Gujarat Prevention of Anti Social Activities
Act, 1985 (for short "the Act") by detaining the petitioner -
detenue as "common gaming house keeper" defined under
section 2(bb) 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 of registration of three offences
under Sections, 4 and 5 etc. of the Gambling Act by itself
cannot bring the case of the detenue within the purview of
definition under section 2(bb) 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 FIR/s 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
C/SCA/26189/2022 JUDGMENT DATED: 07/02/2023
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. 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(bb) 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 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 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(bb) 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
C/SCA/26189/2022 JUDGMENT DATED: 07/02/2023
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(bb) 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 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."
In view of above, we are inclined to allow the 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 have recourse under the Act and no other
C/SCA/26189/2022 JUDGMENT DATED: 07/02/2023
relevant and cogent material exists for invoking power under
section 3(2) of the Act. In the result, the present petition is
hereby allowed and the impugned order of detention dated
12.12.2022 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.
Registry is directed to send the copy of the order to concerned
jail authority through email/fax forthwith.
(VIPUL M. PANCHOLI, J)
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
