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Judgment
Sangeeta K. Vishen, J
Heard learned advocates appearing for the respective parties.
The present petition is directed against order of detention dated 11.5.2020 passed by the respondent No.2 - detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as the "Act of 1985") detaining the petitioner.
Learned advocate for the detenue submits that the order under challenge passed by the respondent No.2 is bad and illegal inasmuch as, it is alleged in the grounds of detention that the petitioner is a dangerous person and his activities are prejudicial to the maintenance of public peace. That the respondent No.2, had failed to substantiate the alleged antisocial activities of the petitioner adversely affecting or likely to affect the maintenance of public peace. That the basis of the passing of the order under challenge dated 11.5.2020 is the registration of the First Information Reports with Gomtipur Police Station. One of the First Information Reports was filed in the year 2018, another in the year 2019 and lastly in the year 2020. Mere registration of the First Information Reports itself cannot bring the case of the detenue within the purview of the definition under clause (c) of Section 2 of the Act of 1985 inasmuch as, the authorities have failed to point out the ingredients necessary for bringing the petitioner within the definition of "dangerous person".
It is submitted that the activities carried or alleged to have been carried out, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be construed to be breach of law and order. It is submitted that as is discernible from the record, the material collected by the detaining authority, is vague and frivolous inasmuch as, there are no statements of any person recorded of the locality. Further, except the statement of witnesses, registration of above First Information Reports and Panchnama drawn pursuant to the investigation, no other relevant and cogent material is available on record connecting the alleged antisocial activities of the detenue with breach of public order.
It is lastly submitted that except the statements, there is no contemporaneous material available with the detaining authority to reach to the subjective satisfaction that the activities of the petitioner are prejudicial to the maintenance of public order and public peace.
Learned Assistant Government Pleader for the respondent - State supported the detention order dated 11.5.2020 passed by the respondent No.2. It is submitted that there are sufficient material and evidence was found during the course of investigation to substantiate that the petitioner is in the habit of indulging into the activities and that would be covered within the definition of Section 2(c) of the Act of 1985. Thus, it is submitted that the respondent No.2 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 First Information Reports, cannot have any bearing on the public order as required under the Act of 1985 and other relevant penal laws are sufficient enough to take care of such situation. Moreover, the allegations levelled in the First Information Reports against the petitioner cannot be said to be germane for the purpose of bringing the petitioner within the meaning of clause (c) of Section 2 of the Act of 1985. Unless and until, there is cogent material 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(c) of the Act of 1985. 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. In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal (AIR 1970 SC 852), where the distinction between 'law and order' and 'public order' has been clearly laid down. The Court observed as follows :
"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."
Under the circumstances, this court, is of the opinion that the respondent No.2 has failed to substantiate that the alleged antisocial activities of the petitioner detenue are likely to adversely affect the maintenance of public order. Further, the detaining authority has relied upon the registration of offences under the provisions of the Indian Penal Code which were registered in the years 2018 and 2019. Thereafter, on the basis of the First Information Report registered in the year 2020 that the detention order is passed in the month of May 2020.
In view of above, I am inclined to allow this petition inasmuch as, simpliciter registration of First Information Reports by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act of 1985 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.PCB/DTN/PASA/371/2020 dated 11.5.2020 passed 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 to the aforesaid extent.
The Registry is directed to communicate this order to the concerned authority by fax or e-mail.