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S.G. Shah, J.@mdashPerused the petition, materials supplied to the detenu, detention order and heard learned counsel for the parties.
1.1. The respondent-State has filed an affidavit-in-reply.
2. This petition under Article 226 of the Constitution of India is directed against the order of detention dated 17.2.2014 passed by the respondent
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 detenue as a ""dangerous person"" as defined under Section 2(c) 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 and the
ground that two offences registered against the detenu before the concerned police station vide I-C.R. Nos. 117 of 2013 and 58 of 2013 for the
offences punishable under Sections 454, 380 etc. of I.P.C. respectively, by itself cannot bring the case of the detenue within the purview of
definition ""dangerous person"" under Section 2(c) of the Act. Learned advocate for the detenue further submits that illegal activity carried out as
alleged cannot have any nexus or bearing with maintenance of public order and at the most it can be said to be breach of law and order. Further,
except registration of FIRs, no other relevant or cogent material is available on record connecting the alleged antisocial activities of the detenue
with breach of the public order.
4. Section 2(c) of the Act defines the term ""dangerous person"" as under:-
2(c). ""dangerous person"" means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or
abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code (GLV of 1860) or any of
the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959).
5. Learned advocate for the detenue, placing reliance on the decisions reported in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) Vs.
State of Gujarat, ; (ii) Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, ; and (iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta,
Commissioner of Police and Others, , submitted that the case on hand is squarely covered by the ratio laid down in the aforesaid decisions.
Learned counsel for the detenue further submits that it is not possible to hold in the facts of the present case that the activities of the detenue with
reference to the criminal case/s had affected even tempo of the society, posing a threat to the very existence of the normal and routine life of the
people at large or that on the basis of the criminal case/s, the detenue had put the entire social apparatus in disorder, making it difficult for whole
system to exist as a system governed by the rule of law by disturbing public order.
6. Learned AGP for the respondent-State supported the detention order passed by the authority and submitted that the detenue is a ""dangerous
person"" and sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue, indicating that
the detenue is in habit of indulging into activities as defined under Section 2(c) of the Act and considering the facts of the case, the detaining
authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court. For such submission, the learned
A.G.P. took me through the grounds upon which the detaining authority satisfied to detain the petitioner.
7. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such
subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the
prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas,
normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who
has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of
such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of infraction of law, not done
in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate
but to preventively detain the petitioner.
8. Having heard learned counsel 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 bearing on the public order since the law of the land i.e. Indian Penal Code 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 as a ""dangerous person"" within the meaning of Section 2(c) of the Act and, unless and until the material is there to make out a case that
the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social
apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a dangerous person within the
meaning of Section 2(c) of the Act. Except general statement, 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 view of the ratio laid down by the Hon''ble Supreme Court in the cases of (i) Ranubhai
Bhikhabhai Bharwad (Vekaria) (supra); (ii) Ashokbhai Jivraj @Jivabhai Solanki (supra); and (iii) Mustakmiya Jabbarmiya Shaikh (supra), the
Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall
under the maintenance of ""law and order."" In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushkar Mukherjee
and Others Vs. The State of West Bengal, , 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.
9. It is generally seen that though some of the accused are repeatedly detained on different occasions for different offences, only because of non-
disclosure of proper information and in all such detention orders, such orders are generally quashed and set aside by the Court. It is also seen that
because of quashing of previous detention order, competent authority could not consider the grounds of detention under such order which is
already quashed as a ground for detention for subsequent offences by the same detenue. However, when competent authorities are not abiding all
other cited cases while passing the order of detention based upon offence/s, it is surprising to note that at no point of time they challenged the
observation of any Court that when previous order of detention has been quashed, it cannot be considered in subsequent detention. It goes without
saying that if a particular detenue continuous to commit the similar offence repeatedly, and if he is required to be detained repeatedly then at-least
at some point of time, the competent authority shall compile all the information and shall consider it for fresh detention order as and when necessary
and shall produce all such information before the Court so as to avoid the quashing of such detention order. If competent authority fails to take
care of such exercise and when in impugned order of detention all such facts were not disclosed or considered for passing such order, the
detention order is required to be dealt with as it is without considering the additional disclosure in affidavit-in-reply by the respondents.
9.1. In view of above facts and circumstances, it would be necessary to observe that the competent authority is not precluded to disclose all
material facts while detaining the petitioner if so require for any offence that he might commit hereinafter. In other words, though impugned order is
quashed and set aside at present, it would not come in way of the competent authority for quoting such FIRs and order of detention, thereby to
treat petitioner as a habitual offender in case of commission of offence repeatedly.
9.2. No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an
order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal
proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question
whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical
manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the
purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case
on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and, therefore, the court is
justified in drawing the inference that there was no application of mind by detaining authority to the vital question whether it was necessary to
preventively detain the detenue. It is also fruitful to refer to the decision of the Hon''ble Apex Court rendered in the case of Rekha Vs. State of T.
Nadu tr. Sec. to Govt. and Another, wherein, it is observed by the Hon''ble Apex Court that if a person is liable to be tried, or is actually being
tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken
recourse to.
10. As a result of hearing and perusal of the record, it appears that the only material that was available with the detaining authority was the offences
registered against the detenu and on that basis, it cannot be said that the activity of the detenu has become a threat to the maintenance of ''public
order'' and ''public health''. Mere involvement of the detenu in such activity may not amount to dangerous activity by the detenu and mere mention
of them, unless supported by any evidence, cannot be said to be material germane for the purpose of arriving at the subjective satisfaction that the
activity of the detenu is prejudicial to the maintenance of ''public order'' and ''public health''. For the sake of repetition, the commission of offence
does not exhibit or disclose that the petitioner is doing infraction of law in an organized or systematic manner so as to come to the conclusion that
there is no alternate but to preventively detain the petitioner.
11. In view of the above, I am inclined to allow this petition because simpliciter registration of FIR/s by itself cannot have any nexus with the
breach of maintenance of public order and the authority can take recourse under the Indian Penal Code and no other relevant or cogent material
exists for invoking powers under Section 3(2) of the Act.
12. In the result, this Special Civil Application is allowed. The impugned order of detention dated 17.2.2014 passed by the respondent 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.