Gujarat High Court

Michael Narsing Vasava vs State Of Gujarat on 5 January, 2023

Bench: Hemant M. Prachchhak

      C/SCA/25386/2022                                  ORDER DATED: 05/01/2023




                   IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                   R/SPECIAL CIVIL APPLICATION NO. 25386 of 2022

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                           MICHAEL NARSING VASAVA
                                       Versus
                              STATE OF GUJARAT
=======================================================================
Appearance:
POOJA D BASWAL(9601) for the Petitioner(s) No. 1
MR RN SHAH, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
           and
           HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                  Date : 05/01/2023

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)

1. Heard learned advocates appearing for the

respective parties.

2. The present petition is directed against order of

detention dated 19.11.2022 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 defined

under section 2(b) 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 the

offences under Sections 65(a)(e), 81 and 98(2) of the Prohibition

C/SCA/25386/2022 ORDER DATED: 05/01/2023

Act by itself cannot bring the case of the detenue within the

purview of definition under section 2(b) 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 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

C/SCA/25386/2022 ORDER DATED: 05/01/2023

investigation, which was also supplied to the detenue indicate

that detenue is in habit of indulging into the activity as defined

under section 2(b) 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(b) 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(b) of the Act. Except

C/SCA/25386/2022 ORDER DATED: 05/01/2023

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."

6. In the recent decision of the Hon'ble Supreme Court in

the case of Shaik Nazeen v/s. State of Telanga and Ors and

Syed Sabeena v/s. State of Telangana and Ors. rendered in

Criminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of

2022 with Criminal Appeal No.909 of 2022 (@ SLP (Crl.)

C/SCA/25386/2022 ORDER DATED: 05/01/2023

No.4283 of 2022 dated 22.06.2022, the Hon'ble Supreme

Court has made following observations in para 17 and 18 :-

"17. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.

18. In fact, in a recent decision of this Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the State of Telangana. This has been done in the case of Mallada K. Sri Ram Vs. The State of Telangana & Ors. 2022 6 SCALE 50, it was stated as under: "17.It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public orderand relying on stale materials while passing the orders of detention. At least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."

7. Moreover, learned Advocate for the petitioner has

placed on record acquittal orders in two of the cases. It appears

that though the petitioner was acquitted by the learned trial

Court in two of the cases by judgment and order dated

C/SCA/25386/2022 ORDER DATED: 05/01/2023

06.09.2022 and 08.09.2022, the detaining authority still

considered those cases while passing order of detention.

Therefore, it appears that the detaining authority has not

applied its mind and therefore, order of detention is not justified

and legal.

8. In view of above, we are inclined to allow this

petition, because simplicitor registration of FIR/s by itself cannot