Vishnubhai @ Tiko Chimanbhai ... vs District Magistrate, Kheda
2023 Latest Caselaw 3824 Guj

     C/SCA/8147/2023                             JUDGMENT DATED: 03/05/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 8147 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.S. SUPEHIA                        Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI                    Sd/-

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1     Whether Reporters of Local Papers may be allowed                No
      to see the judgment ?

2     To be referred to the Reporter or not ?                         No

3     Whether their Lordships wish to see the fair copy               No
      of the judgment ?

4     Whether this case involves a substantial question               No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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    VISHNUBHAI @ TIKO CHIMANBHAI JADAV THROUGH HIS BROTHER
                 KALPESHBHAI CHIMANBHAI JADAV
                              Versus
                   DISTRICT MAGISTRATE, KHEDA
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Appearance:
MR KEVAL G BRAHMBHATT (BAROT)(9900) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,3
MR ADITYASINH JAJDEJA, AGP for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
          and
          HONOURABLE MR. JUSTICE DIVYESH A. JOSHI

                             Date : 03/05/2023

                            ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

C/SCA/8147/2023 JUDGMENT DATED: 03/05/2023

1. Rule. Learned AGP waives service of rule on behalf of the respondents. Heard the learned advocates appearing for the respective parties.

2. The present petition is directed against the order of detention dated 21.04.2023 passed by the respondent - detaining authority in exercise of powers conferred under section 3 (1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "the Act") by detaining the petitioner- detenu as defined under section 2 (b) of the Act.

3. Mr.Brahmbhatt, learned advocate for the detenu submitted that the impugned order of detention of the detenu requires to be quashed and set aside because the detaining authority has passed order of detention solely on the ground of registration of one FIR for the offences under Sections 65-e, 67 (a), 81, 98 (2) and 99 of the Prohibition Act and under Sections 465, 467, 471 and 120 (B) of the Indian Penal Code by itself cannot bring the case of the detenu within the purview of definition under section 2 (b) of the Act. He also submitted that the detenu was already under judicial custody when this order of detention was executed. Learned advocate for the petitioner further submitted 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, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenu would

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not fall under the category of breach of public order. Learned advocate further submitted that it is not possible to hold, on the basis of the facts of the present case, that activity of the detenu with respect to the criminal cases had affected and disturbed the social fabric of society, eventually which would become threat to the very existence of normal and routine life of people at large or that on the basis of registration of criminal cases, the detenu 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. It is also submitted that the detaining authority has also not applied its mind to the fact that the petitioner is released on bail in all offences.

4. Mr.Adityasinh Jadeja, learned AGP for the respondent- State supported the detention order passed by the authority and submitted that sufficient material and evidences were found during the course of investigation, which was also supplied to the detenu indicate that detenu 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 the learned advocates for the parties and considering the documents and material available on record of the case, prima facie, it is found that 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

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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 levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the realm of 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 goes in peril disturbing public order at the instance of such person, in that circumstances, it cannot be said that the detenu is a person which would fall within the meaning of section 2 (b) of the Act. Except general statements, there is no material on record which shows that the detenu is acting in such a manner, which would become dangerous to the public order.

6. At this juncture, we would like to put reliance upon certain case laws of the Honourable Apex Court, wherein the Honourable Apex Court has crystalized the position of law in a very crystal manner.

6.1 In a recent decision of the Hon'ble Supreme Court in the case of Shaik Nazeen vs. State of Telanga and Ors. and Syed Sabeena vs. State of Telangana and Ors. rendered in Criminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of 2022 and 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 paragraph Nos.17 and 18. The excerpts of paragraph Nos.17 and 18 are as under :-

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"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 order and 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 ."

6.2 The distinction between a disturbance to "law and order" and a disturbance to public order has been clearly settled by a Constitution Bench in Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740. The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The Constitution Bench held:

"51. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public

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order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules ."

(emphasis supplied)

6.3 In the case of Mallada K Sri Ram vs. State of Telangana, 2022 (6) Scale 50, Honourable Apex Court has observed as under:-

"15 A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since detenu was released on bail on 8

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January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

6.4 It will be fruitful to refer to a decision of the Supreme Court in Pushker Mukherjee vs. State of West Bengal, AIR 1970 S.C. 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/8147/2023 JUDGMENT DATED: 03/05/2023

7. Same fact situation exists in the State and number of detention orders under PASA are passed day in and day out, relying on stale material and without drawing distinction between "law and order" problem and "public order"

problem as mentioned under the PASA Act.

8. In case of K.Nageswara Naidu Versus Collector And District Magistrate Kadapa, 2012 (13) SCC 585, the Apex Court has reiterated thus:

"4 After the aforesaid decision, the same issue again came up for consideration before a two-Judge Bench of this Court in Munagala Yadamma v. State of Andhra Pradesh and Ors., (2012) 2 SCC 386, where a similar order had been passed under the 1986 Act. In the said case, the detention order had been passed in regard to the detenu, who had been indulging in illicit distillation of liquor and the same submission was advanced on behalf of the State, that recourse to ordinary law would involve more time and would not be an effective deterrent in preventing a person from indulging in prejudicial activities. In the said decision while considering the decision, both in Rekha's case (supra) and Reddeiah 's ease (supra) and also in Yumman Ongbi Lemhi Leima's case (supra), it was held that the personal liberty of an individual is the most precious and prised right guaranteed under the Constitution in Part III thereof. It was observed that the State has been granted the power to curb such rights under criminal laws and also under the laws of preventive detention, which, therefore, are required to be exercised with due caution, as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. It was also observed that no doubt the offences alleged to have been committed by the Appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act. but such punishment would have to be awarded under the said laws and taking recourse to preventive detention laws would not be warranted. It had been emphasised that preventive detention involves detaining of a person without trial in order to prevent him/ her from committing certain types of offences, but such detention cannot be made a substitute for the

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ordinary law and absolve the investigating authorities of their normal functions of investigating crimes, which the detenu may have committed. It had also been observed that after all, preventive detention. in most cases, is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial."

9. Thus, the Supreme Court has emphasised that preventive detention involves detaining of a person without trial in order to prevent him/ her from committing certain types of offences, but such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes, which the detenu may have committed. It had also been observed that after all, preventive detention. in most cases, is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial.

10. It appears that the state authorities tend to forget the aforementioned settled proposition of law and orders are being passed being oblivious of the fact that the freedom of human being is supreme and the same cannot be curtailed or restricted unless the detention is extremely necessary and the activities of the detenu affects the "public order". It is also noticed by this Court that the state authorities are absolutely oblivious of the expression between the "law and order" and "public order". In numerous decisions, the Supreme Court and the High Court has reiterated and explained the difference between the two expressions, however, from the orders of detentions, it is noticed that no attention is being paid by the detaining authorities on such

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vital aspect. While passing the detention orders, the authorities have to be mindful of the characteristic of Article 21 and 22 of the Constitution of India. Article 22 cannot be read in isolation but must be read as an exception to Article 21, and such exception can apply only in rare and exceptional cases. The Apex Court and this Court time and again have articulated that the personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention is meticulously accords with the procedure established by law. We have also come across cases that in a single case of prohibition, the provisions of PASA are invoked and the order of detentions are not executed and the provisions of PASA are invoked even after such detenue have been granted bail. Thus, it appears that, in numerous cases such orders are executed in order to frustrate the orders of bail.

11. Thus, it is high time that the State Authorities should introspect their action of passing detention order in a casual manner since this Court is confronted with the orders of detention, which do not stand the test of settled legal proposition of law.

12. It is noticed that when the order of detention was passed, the detenu was already in judicial custody and detention order is passed without referring to such fact. As per the decision of the Supreme Court in the case of

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Merugu Satyanarayana v. State of Andhra Pradesh and Others reported in (1982) 3 SCC 301, detention order is quashed on the ground of non-application of mind by the detaining authority to the aspect of the detenu being already in judicial Court. In the said decision, the Supreme Court observed thus:-

"15. Coming to the facts of each case, the detention order refers to the name of the detenu and the place of his residence. There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in another case for a period of one month and four days. The detenu is referred to as one who is staying at a certain place and appears to be a free person. Assuming that this inference from the mere description of the detenu in the detention order is impermissible, the affidavit is conspicuously silent on this point. Not a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order. Therefore, the subjective satisfaction arrived at clearly discloses a non- application of mind to the relevant facts and the order is vitiated."

13. 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 recourse under the Act and no other relevant and cogent material exists for invoking power under section 3 (1) of the Act. In the result, the present petition is hereby allowed and the impugned order of detention dated 21.4.2023 passed by the respondent - detaining authority is

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hereby quashed and set aside. The detenu 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/-

(A. S. SUPEHIA, J)

Sd/-

(DIVYESH A. JOSHI,J) R.S. MALEK