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Judgment
Vipul M. Pancholi, J
Rule. Learned Assistant Government Pleader waives service.
Heard learned advocates appearing for the respective parties.
The present petition is directed against order of detention dated 29.11.2019 passed by the respondent â€" 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.
Learned advocate for the petitioner contended that the subjective satisfaction of the detaining authority is vitiated inasmuch as the said subjective
satisfaction is not based upon any subjective material to support of the order of detention as there is no live link established in the grounds of detention.
It is submitted that the detaining authority in the impugned order asserted that the petitioner has been arraigned upon implication of the co-accused and
all the muddamal recovered from the co-accused. Thus, there is no live link established. Statements of witnesses were supplied. However, there is no
mention about the name of the petitioner.
Learned advocate for the petitioner has referred the table provided in the Draft Amendment i.e. in Paragraph-4.1. From the said table, it is pointed
out that out of eight FIRs, in four FIRs, the petitioner has not been named whereas in other FIRs, the petitioner is shown as wanted and has been
implicated on the basis of the statement of the co-accused. Learned advocate has also referred the quantity of the muddamal liquor. It is further
submitted that from the material, upon which, reliance is placed by the detaining authority, it cannot be said that there is a breach of public order and it
is not possible to hold on the basis of the facts of the present case that activity with respect to criminal cases had affected even tempo of the society
causing threat to routine life of the people at large.
Learned advocate for the petitioner further submitted that there is a delay of 42 days in passing the order of detention. From the material placed on
record, it appears that the last FIR was registered against the petitioner on 16.10.2019 whereas the order of detention has been passed on 28.11.2019.
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 eight offences mentioned in the order of detention 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 advocate for the petitioner has placed reliance upon the following decisions:
(a) Mukhtiarkhan Magbulkhan Pathan Versus State of Gujarat reported in 2002 (1) GCD 11;
(b) Kaluji Govindji Thakore Versus Commissioner of Police, Ahmedabad reported in 1989 (2) GLR 1339;
(c) Amin Alias Balam Nurmohmed Memon Versus B.K.Jha, Commissioner of Police, Ahmedabad reported in 1986(1) GLR 473;
(d) Baburao Tulsirao Maratha Versus Commissioner Of Police, Ahmedabad reported in 1999(2) GLR 1362;
(e) Bachubha Nanbha Jadeja Versus State of Gujarat reported in 2009 JX(Guj) 1070 = 2009(0) AIJEL-HC 222663;
(f) Sureshbhai S/o. Fuljibhai Ukkadbhai Patle Versus State of Gujarat (Order dated 26.09.2018 passed in Special Civil Application No.10983 of 2018)
(g) Reenaben Yogeshbhai Ghansi Versus State of Gujarat (order dated 10.09.2018 passed in Special Civil Application No.9131 of 2018)
On the other hand, learned Assistant Government Pleader has opposed this petition and referred the affidavit-in-reply filed by the detaining
authority. After referring to the same, it is submitted that the order of detention has been passed based upon the fact that the petitioner by virtue of her
activities caused danger to law and order and public order. It is submitted that eight FIRs are registered against the petitioner and, therefore, the
detaining authority, after considering the activities of the petitioner, recorded its subjective satisfaction and, therefore, this Court may not interfere with
the same.
It is further submitted that there is no delay in passing the order of detention as contended by the petitioner. In fact, the petitioner was in custody in
connection with the FIR registered against her and, therefore, when the petitioner was enlarged on bail, the order of detention has been passed and
served to her. Thus, there is no delay.
Learned Assistant Government Pleader has placed reliance upon a decision reported in the case of Salam Abdul Hanifshaibhai Vs. The District
Magistrate and Ors reported in 2007 (3) GLH 131, wherein this Court has observed in Paragraph-12 as under:
“12. Thus, there is sufficient legal dicta to sustain the assumption that likelihood of storage, distribution and consumption of liquor in violation of the
Prohibition Act causes danger to public health and consequently public order. Therefore, there is no requirement of any additional material in the form
of expert’s opinion or statements of witnesses to assume that illegal supply of liquor in large quantities was likely to cause danger to public health
and such activities of any person would be likely to cause widespread danger to public health and thereby adversely affect the maintenance of public
order.â€
Learned Assistant Government Pleader, therefore, requested that this petition be dismissed.
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 bearing 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. 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.â€
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 709. 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 Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and others, reported in AIR 2003 SC 971, the Supreme Court made the
following observations:
“The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs.1000/-.
Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the
locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act it is stated that
the case of 'Goonda' the acts prejudicial to public order are 'when he is engaged, or is making preparations for engaging, in any of his activities as a
goonda which affect adversely, or are likely to affect adversely, the maintenance of public order'. The question whether a man has only committed a
breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of
the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to
bring the case within the purview of the Act providing for preventive detention.â€
In Siddharth @ Sindhu Laxmanbhai Thorat v/s. District Magistrate, Navsari, in Letters Patent Appeal No.1020 of 2019 dated 08.05.2019, this
Court has made following observations:
“8. Having regard to the facts and circumstances of the case, We find that though there are powers available under section 3(1) of the Act,
ordinary law of Indian Penal Code under which FIRs are registered in four offences for which punishment is prescribed in the Indian Penal Code, is
sufficient and order of detention cannot be passed as a short cut to exhaust such remedy. Ordinarily, this Court will be loath in interfering with
subjective satisfaction of the detaining authority. While arriving at subjective satisfaction, the detaining authority is supposed to undertake objective
assessment of the material available. In this connection, we may refer to the judgment of this Court in Letters Patent appeal No.2732 of 2010, dated
28.3.2011 in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others, wherein, this Court has quoted the
observations made by Apex Court in the case of Pushker Mukherjee vs. State of West Bengal, reported in AIR 1970 SC 852, wherein distinction is
drawn between public order and law and order. The Supreme Court observed in the said judgment as under:
“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.â€
We may further refer to the judgment of the Apex Court in the case of Arun Ghosh v/s State of West Bengal (1970) 1 SCC 98, wherein, the Apex
Court has observed as under:
“... Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community
taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals
which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon
the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man
stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may
dislike the act. â€
In another case of the Apex Court in the case of Ram Manohar Lohia v/s State of Bihar & others (1966) 1 SCR 709, wherein, the Apex Court
has observed as under:
“...Does the expression “public order†take in every kind of disorder or only some? The answer to this serves to distinguish “public orderâ€
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.â€
In the above judgments, the Apex Court distinguished the public order and law and order and advisability of invoking drastic remedy of preventive
detention against citizens.
Under the circumstances, in view of the judgment of this Court in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of
Police & 2 others and considering the totality of circumstances, in our opinion, the detaining authority has failed to substantiate that the alleged
antisocial activities of the appellant detenue adversely affect or are likely to affect adversely the maintenance of public order. The order of detention,
therefore, cannot be sustained and deserves to be quashed and set aside.â€
From the facts and circumstances of the present case, it can be said that there is no live link between the petitioner and the alleged offences and in
respect of the such offences, the petitioner can be taken care of under ordinary law.
In the case of Bachubha Nanbha Jadeja Versus State of Gujarat (supra), seven FIRs were registered against the concerned detenue under the
Prohibition Act and certain muddamal liquor was also found from the possession of the concerned detenue. After considering the facts of the said
case, this Court observed that the activities of the detenue can by no stretch of imagination be said to be a disturbing the “public orderâ€. Thus, the
subjective satisfaction arrived at by the detaining authority is vitiated on account of non- application of mind.
The decision, upon which, the reliance is placed by the learned Assistant Government Pleader in the case of Salam Abdul Hanifshaibhai Vs. The
District Magistrate and Ors (supra), would not be applicable to the facts of the present case. In the said case, the concerned detenue was found with
huge quantity of liquor and was arrested from the spot while transporting the said liquor. In different FIRs filed against the said petitioner detenue,
huge quantity of bottles of liquor were found from the said petitioner- detenue and, therefore, in the facts and circumstances of the said case, this
Court dismissed the petition.
In the present case, the petitioner is a lady detenue and she is in Jail since 29.11.2019. From the chart provided by the learned advocate for the
petitioner, it is revealed that in four FIRs, the petitioner has not been named and in other cases, she is implicated on the basis of the statement of the
co-accused. The muddamal liquor was not found from possession of the petitioner and it cannot be said that the petitioner was in possession of huge
quantity of liquor.
It is required to be noted that the present case is considered in the peculiar facts and circumstances of the present case as the petitioner is a lady
detenue and is detained since 29.11.2019 i.e. she is in jail since last more than seven months.
In view of above, I am inclined to allow this petition, because simplicitor registration of FIRs 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.DCB/ MAG/PASA/27/2019
dated 29.11.2019 passed by the respondent â€" 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 serivice is permitted. The Registry is directed to communicate this order to the concerned jail authority
by fax or e-mail.
In view of the order passed in the present petition, the Civil Application does not survive and is disposed of, accordingly.