Savan Pankajbhai Narayanbhai ... vs State Of Gujarat
2023 Latest Caselaw 2039 Guj

      C/SCA/917/2023                                 JUDGMENT DATED: 03/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


             R/SPECIAL CIVIL APPLICATION NO. 917 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                   Sd/-

and

HONOURABLE MS. JUSTICE NISHA M. THAKORE                                   Sd/-

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1      Whether Reporters of Local Papers may be allowed to                 No
       see the judgment ?
2      To be referred to the Reporter or not ?                             No
3      Whether their Lordships wish to see the fair copy of                No
       the judgment ?
4      Whether this case involves a substantial question of                No
       law as to the interpretation of the Constitution of India
       or any order made thereunder ?

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                  SAVAN PANKAJBHAI NARAYANBHAI GADHIYA
                                 Versus
                            STATE OF GUJARAT
==================================================
Appearance:
MR. KISHAN H DAIYA(6929) for the Petitioner(s) No. 1
MS. SURBHI BHATI, AGP for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
          and
          HONOURABLE MS. JUSTICE NISHA M. THAKORE

                              Date : 03/03/2023

                              ORAL JUDGMENT

C/SCA/917/2023 JUDGMENT DATED: 03/03/2023

(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)

[1] Heard learned advocates appearing for the respective parties.

[2] The present petition is directed against the order of detention dated 03.01.2023 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(ba) of the Act.

[3] Learned advocate for the detenue has submitted that the order of detention impugned in this petition is not sustainable in the eye of law a mere registration of FIR itself cannot be ground exercise of such excessive power of detention. The reasons which are assigned are not justified enough to pass an order of detention and the registration of FIR under Indian Penal Code and the contents therein cannot bring the case of authority to bring the petitioner under purview of definition contained under section 2(ba) of the Act. It has further been submitted that there is no recovery from the petitioner and there are no antecedents of any nature against the petitioner. Further the petitioner has already been released on bail vide order dated 01.12.2022 and there is no grievance about violation of any of the condition. In fact, the order of the order of detention is passed on the basis of solitary offence and as such in the absence of any likelihood of indulging in repetitive act like as alleged the detention of the petitioner is not justifiable. On account of the act which has alleged been committed, it has no

C/SCA/917/2023 JUDGMENT DATED: 03/03/2023

nexus with the maintenance of public order nor as the effect of breach of law and order. Except the general statement of witnesses, no further material cognent enough is available on record to connect the petitioner about alleged anti-social activity which has got the effect of breach of public order and as such the criminal case which has been alleged against the petitioner does not in any way affect even tempo of the society causing threat to the very existence of normal and routine life of people at large and as such in the absence of such elements the order of detention is not justifiable.

[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(ba) 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

C/SCA/917/2023 JUDGMENT DATED: 03/03/2023

purpose of bringing the detenue within the meaning of section 2(ba) 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(ba) 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."

C/SCA/917/2023 JUDGMENT DATED: 03/03/2023

[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.) 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] In view of above, we are inclined to allow this petition, because simplicitor registration of FIR/s by itself cannot have

C/SCA/917/2023 JUDGMENT DATED: 03/03/2023

any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act.

[8] In the result, the present petition is hereby allowed and the impugned order of detention No. PCB/DTN/PASA/8/2023 dated 03.01.2023 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.

Sd/-

(ASHUTOSH SHASTRI, J.)

Sd/-

(NISHA M. THAKORE,J.) DHARMENDRA KUMAR