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Judgment
A.S. Supehia, J
RULE. Learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondents-State.
Heard learned advocates appearing for the respective parties through video conferencing.
By way of this petition, the detenue has challenged the order of detention dated 24.01.2020 passed by respondent-detaining authority, under the
provisions of sub-section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA Actâ€).
Learned advocate appearing for the petitioner - detenue has invited my attention to the order of detention dated 24.01.2020, by which, the detenue
was arrested and sent to Jail. The ground of detaining the accused is that two offences were registered against the petitioner under the provisions of
Sections 5, 5(1)A, 6, 6(1), 6(A), 6(B), 8(2), 8(4) & 10 of the Gujarat Animals Preservation Act, 1954; sub-sections of Sections 11, 11(L)of the
Prevention of Cruelty to Animals Act, 1960 and Sections 429, 295(A) and 120(B) of the Indian Penal Code; Section 119 of Gujarat Police Act; Rule 3
of the Prevention of Cruelty to Animals Rules, 2001. 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 apart from these two offences past four offences registered under sections 397, 114
of the IPC and Section 11(l)(d) of the Prevention of Crulety to Animals Act (dated 21.06.2017), under sections 457, 380 and 114 of the IPC (dated
15.03.2017), under sections 326, 323 and 114 of the IPC and section 135 of the Gujarat Police Act (dated 17.09.2017) and under sections 363 and 366
of the IPC and Section 8 of the Protection of Children from Sexual Offences Act, 2012 (dated 15.12.2018) are considered for declaring the petitioner
as “cruel personâ€. It is submitted that the definition of “cruel person†requires habitual involvement and, therefore, the subjective satisfaction
and the consequential order are vitiated.
Learned Assistant Government Pleader appearing for the State has opposed this petition.
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(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985. It would be necessary to refer to the definition of “cruel person†as
given in Section 2(bbb), which reads 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)â€.
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 the aforesaid offences 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 the offence.
The distinction between ""public order"" and ""law and order"" has been carefully defined in a Constitution Bench judgment of the Supreme Court in the
case of Dr. Ram Manohar Lohia v. State of Bihar & Others, (1966) 1 SCR 70.9 In this judgment, His Lordship Hidayatullah, J. by giving various
illustrations clearly defined the ""public order"" and ""law and order"". Relevant portion of the judgment reads thus:
....Does the expression ""public order"" take in every kind of disorder or only some? The answer to this serves to distinguish ""public order"" from ""law
and order"" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does
not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public
disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must
affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under
the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l) (b) to
prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
It will thus appear that just as ""public order"" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those
affecting ""security of State"", ""law and order"" also comprehends disorders of less gravity than those affecting ""public order"". One has to imagine three
concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle
represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but
not security of the State.…
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. The impugned order of detention dated 24.01.2020 passed by the
respondent authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if he is not required to be detained in
connection with any other case. Rule is made absolute accordingly.
The Registry is directed to communicate this order to the concerned jail authority by fax or e-mail.