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Judgment
A.Y. Kogje, J
Heard learned advocates appearing for the respective parties.
The present petition is directed against order of detention dated 13.02.2020 passed by the respondentâ€" detaining authority in exercise of powers
conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Actâ€) by detaining the petitionerâ€
detenue as defined under section 2(b) of the Act. The petitioner is detained since 14.02.2020.
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
of registration of solitary offence under Sections 65E, 81, 83, 116-B and 98(2) 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 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 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 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 had 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 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.
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(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.
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 purpose of bringing the detenue within the 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 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. The solitary offence in the present case is not enough to disturb even
the tempo of life leading to disturbance of public order. The Court relies upon the observations made by this Court in a reported judgment in the case
of Sohanlal Surjaram Visnoi, reported in 2004 (2) GLR 1051, wherein in para-7 the Court has observed as under:-
“7. At the outset, it may be noted that the contention advanced on behalf of the petitioners that no preventive detention order can be recorded in a
solitary incident or instance or offence cannot be accepted in toto. The detaining authority can pass the order of detention even on the basis of a
solitary incident or instance, provided there is justifiable subjective satisfaction on objective material and consideration that such incident or offence is
likely to create disturbance of ""public order"", and which needs to be controlled and curbed preventively. There must be convincing reasons and
justifiable material that the impugned activity or action is likely to cause adverse and prejudicial impact on the maintenance of ""public order"". Emphasis
is laid on ""public order"" and not ""law and order"" which belongs to the realm of general law. After having taken into account the statutory definitions of
the persons branded as ""bootlegger"" or ""dangerous person"" under the PASA Act, and detailed factual matrix of each case, the solitary incident or
instance in question in these petitions has not been shown or spelt out from the record as affecting the ""public order"" or likely to create public
disturbance or prejudicial or adverse to the maintenance of ""public order"", and therefore, the continued detention of the detenus in each case has not
been shown to be justifiable, and in this context, in exercise of the powers under Article 226 of the Constitution of India, this Court is left with no
alternative in this group of petitions, but to quash and set aside the orders in each matter, with the result that all the petitions are required to be allowed
while quashing and setting aside the detention orders passed against detenus in this group. The view which this Court has taken in this group of
petitions is also reinforced by the observations and directions contained in the latest decision of the Hon'ble Supreme Court in the case of Darpan
Kumar Sharma alias Dharban Kumar Sharma Dharaben Kumar Sharma v. State of Tamilnadu and others, reported in (2003)2 SCC 313.â€
Similarly, the Court may also relies upon the decision in the case of Ramesh Vandha Modhwadiya v/s. State of Gujarat, reported in 2010 GLR
Vol.1 241, wherein the Division Bench after considering several decisions of the Apex Court has held with regards to issue of solitary incident. The
relevant para-16 reads as under:-
“16. The incident referred to in the F.I.R. had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are
being tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section
25(1- B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to
detain a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual
offender, apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public
tranquility, but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in
which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The
solitary incident pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or
normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere
fact that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous
person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual
offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution.â€
In view of above, I am 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(2) of the Act. In the result, the present petition is hereby allowed and the impugned order of detention No.
DC/PASA/ATK/2(b)/06/2020 dated 13.02.2020 passed by the respondentâ€"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.