Janardan Shyamnarayan Dube vs State of Gujarat and Others

S.G. Shah, J.—Heard learned advocates for both the parties. By filing present petition the petitioner, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of detention dated 08.05.2013 passed, against the petitioner by the respondent No. 2, in exercise of power under subsection (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short "PASA Act"). The detenue is branded as "property grabber".

The detenue came to be detained as "property grabber" on his involvement in two offences.

It has been submitted by the learned Counsel for the petitioner that the allegations made against the detenue are not correct; that the material collected by the detaining authority and looking to the statement recorded by the detaining authority, it cannot be said that the alleged activities of the petitioner would fall within the purview of "property grabber".

I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned A.G.P. The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. Affidavit of complainant is also placed on record. It is specifically stated by the complainant in the affidavit that the petitioner intervened in resolving the dispute, however, the petitioner did not take any part in committing the crime. The detaining authority has placed reliance on the aforesaid registered offences and statements of witnesses. After recording the subjective satisfaction about the detenue being a dangerous person and with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, the impugned order of detention was passed by the detaining Authority.

Except the 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. There are number of decisions of this Court as well as the Hon''ble Apex Court on the point of relying on this point. In view of the ratio laid down by the Hon''ble Supreme Court in the case of (i) The District Collector, Ananthapur and Another Vs. V. Laxmanna, (ii) Amanulla Khan Kudeatalla Khan Pathan Vs. State of Gujarat and Others, and (iii) Mustakmiya Jabbarmiya Shaikh Vs. M.M. Mehta, Commissioner of Police and Others, the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of pubic order. In the case of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, , 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 order are passed on the basis of the statements of such witness 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, the detaining authority must come to a definite findings 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 a 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. The petition is allowed. The impugned order of detention dated 08.05.2013 passed against the petitioner by the respondent No. 2 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.