Allarakha @ Ijjo Rafiqbhai Shaikh ... vs State Of Gujarat
2023 Latest Caselaw 474 Guj

      C/SCA/26589/2022                                  ORDER DATED: 16/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 26589 of 2022
==========================================================
      ALLARAKHA @ IJJO RAFIQBHAI SHAIKH THROUGH RAFIKBHAI
                       IBRAHIMBHAI SHAIKH
                              Versus
                        STATE OF GUJARAT
==========================================================
Appearance:
MR. JARJEESKHAN(7235) for the Petitioner(s) No. 1
MR TRUPESH KATHIRIYA, GOVERNMENT PLEADER for the Respondent(s) No. 3
RULE NOT RECD BACK for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================
   CORAM:                      HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                                                            and
                            HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
                                             Date : 16/01/2023
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

1. Heard learned advocates appearing for the respective parties.

2. The present petition is directed against order of detention dated 10.11.2022 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(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 that registration of the offence under the provisions of the Prohibition 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

C/SCA/26589/2022 ORDER DATED: 16/01/2023

activity likely to be carried out or alleged to have been carried out, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be a breach of law and order. Further, except the 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 regard to 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 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.

3.1 It was, further, submitted that so far as the second FIR mentioned in the order of detention, i.e. C.R. No. 11821030220033 of 2022, registered with Jhalod Police Station under the provisions of the Gujarat Prohibition Act, 1949, is concerned, the same had culminated in Criminal Case No. 332 of 2022, wherein, after the completion of the trial, the petitioner was acquitted by the learned JMFC, Jhalod, vide judgment and order dated 21.07.2022 and despite

C/SCA/26589/2022 ORDER DATED: 16/01/2023

that, while passing the order of detention, the Respondent-detaining authority took the same into account, which shows total non-application of mind on the part of the competent authority.

4. Learned AGP for the respondent State supported the detention order passed by the Respondent- authority and submitted that sufficient material and evidence was found during the course of investigation, which is also supplied to the detenue, would indicate that the detenue is in the 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 the same deserves to be upheld by this Court.

5. Having heard learned advocates for the parties and having considered 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 bearing on the public order as required under the Act. Further, the 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(b) of the Act.

C/SCA/26589/2022 ORDER DATED: 16/01/2023

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 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 the 'law and order' and the 'public order' has been clearly laid down. The Apex 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

C/SCA/26589/2022 ORDER DATED: 16/01/2023

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. Moreover, the Hon'ble Supreme Court in the recent decision 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.) No.4283 of 2022 dated 22.06.2022, has made the following observations in Paragraphs- 17 and 18 thereof:-

"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.

C/SCA/26589/2022 ORDER DATED: 16/01/2023

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. Further, from the record, we also noticed that the detaining authority took into consideration two FIRs, while passing the order of detention against the petitioner. However, it is interesting to note that out of the aforesaid two FIRs, the petitioner is already acquitted by the concerned trial Court, on completion of trial, in connection with the FIR being C.R. No. 11821030220033 of 2022, registered with Jhalod Police Station and despite that the Respondent-authority relied on the said FIR, while passing the order of detention dated 10.11.2022, by overlooking the fact that the petitioner is already acquitted by the concerned trial Court vide order

C/SCA/26589/2022 ORDER DATED: 16/01/2023

dated 21.07.2022, which shows total non-application of mind on the part of the concerned authority.

8. 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 authority cannot have taken recourse under the Act and no other relevant and cogent material exists for invoking powers under section 3(2) of the Act.

9. In the result, the present petition is hereby ALLOWED and the impugned order of detention bearing No. MAG/PASA CASE/S.R./09/2022, Dated : 10.11.2022, passed by the respondent - detaining authority is hereby quashed and set aside.

9.1 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/-