Gaffarmohammad Hussainmiyan Miyana vs Commissioner of Police, Ahmedabad City and Others

M.D. Shah, J.—Heard learned advocate appearing on behalf of the petitioner-detenue and learned AGP for the respondents.

The petitioner-detenue has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting the impugned order of detention dated 14.3.2008 passed by the respondent No. 1-Police Commissioner, Ahmedabad City, whereby in exercise of power under Sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short, ''PASA'') and consequently, the petitioner has been branded as a ''Dangerous person" and detained him in Jamnagar Jail.

From the grounds of detention, it appears that six offences have been registered against the petitioner "'' detenue at Madhavpura Police Station being CR Nos. I-308 of 2005, 26 of 2006, 254 of 2006, 255 of 2006, 291 of 2006, and 50 of 2008 under Sections 454, 457, 380, 397, 447, 511, and 114 of 114 of Indian Penal Code wherein it is alleged that the petitioner is engaged in the illegal activity of theft of iron pieces. On the basis of the registration of these cases, the detaining authority after recording the subjective satisfaction, has come to the conclusion that the present detenue''s aforesaid activities are prejudicial to maintenance of ''public order'' and ultimately passed the impugned order of detention against him branding him as a "Dangerous Person".

Except few statements of anonymous witnesses, there is no material on record which shows that the petitioner-detenue is carrying on illegal activities of theft of iron bar pieces which is harmful to the health of the public. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat (2001 (1) GLH 393) , having considered the decision of the Hon''ble Apex Court in the case of Dr. Ram Manohar Lohia Vs. State of Bihar and Others, , this Court held that the cases wherein the detention orders are passed on the basis of the statements of such witnesses fall under the maintenance of ''Law and Order'' and not ''Public Order''.

Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenue, the detaining authority must come to a definite finding that there is threat to the ''Public Order'' and it is very clear that the present case would not fall within the category of threat to ''public order''. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds, for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.

In the result, this Special Civil Application is allowed. The impugned order of detention dated 14.3.2008 passed by the 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.