Akhter Husen vs State of Gujarat

S.G. Shah, J.—Perused the petition, materials supplied to the detenu, affidavit-in-reply, etc. and heard learned advocate Mr. Ansari for the petitioner and learned A.G.P. Mr. Bhatt for the respondent-State.

This petition under Article 226 of the Constitution of India is directed against the proposed order of detention, if any, 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 detenu as a "cruel person" as defined under Section 2(bbb) of the Act. The grounds for proposing to detain the petitioner are that two offences were registered against the petitioner under the provisions of Sections 5, 7, 8 and 10 of the Bombay Animal Preservation Act, 1954 and Section 11[d], [e] and [h] of the Prevention of Cruelty to Animal Act. He is, therefore, a "cruel person" as defined under Section 2(bbb) of the PASA Act. Learned advocate appearing for the petitioner has submitted that, except the aforesaid offences, there is no material with the detaining authority to detain the petitioner under the provisions of the PASA Act. It is submitted that the order is vitiated because only on the basis of two offences registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated.

Learned AGP for the State has opposed this petition. He has referred and relied upon affidavit-in-reply filed by the respondent no. 2.

Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of "cruel person" as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs as under:-

"2(bbb) "cruel person" means a person who either by himself or as member or leader of a gang habitually commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom. LXXII of 1954)".

It is clear from reading of the definition that the person to be branded as a cruel person has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term "habitually" examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitual or repetitively involved in such offences.

Under the circumstances, the subjective satisfaction that the petitioner is a cruel person is vitiated.

In the result, the petition is allowed. The impugned order, if any, passed by the respondent authority pursuant to FIRs being C.R. No. I-11/2012 registered with Chhapi Police Station, Banaskantha and C.R. No. II 3099/2012 registered with Wankaner Police Station against the detenu, is hereby quashed and set aside. The detenu, if detained, is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.