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Judgment
By way of this petition, the detenu has challenged the order of detention dated 13.11.2017 passed by respondent No.2 herein under the provisions of sub-sec(2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as "PASA Act").
It is surprising to note that the impugned order of detention dated 13.11.2017 is solely based upon solitary FIR being Valod police station C.R.No. II-1 of 2017 registered on 2.1.2017, wherein petitioner was arrested on 4.1.2017 and released on bail on 5.1.2017 for carrying live- stock in a vehicle. However, after filing of chargesheet for such FIR before the court of J.M.F.C. at Valod, petitioner was tried in Criminal Case No. 75 of 2017 for the alleged offences against him, but when the Investigating Officer has admitted before the trial court that medical report does not suggest or prove any injuries to any of the live-stock and that prosecution has failed to record the statement of persons staying nearby from the place of incident and that prosecution has also failed to prove its case beyond reasonable doubt and even the prosecution has failed to prove documentary evidence produced before the court so as to confirm that the petitioner has committed any offence as alleged.
Therefore, the trial court has by its reasoned judgment dated 29.7.2017, acquitted the petitioner from all the charges. Surprisingly, after such acquittal on 29.7.2017, practically, when there is no allegation or charges against the petitioner, as back as on 13.11.2017 i.e. after three months from acquittal, the order of detention has been passed and served on the same day. In any case, there cannot be a detention based upon such solitary offence registered against the petitioner and only evidence, more particularly, when there is no evdience against the petitioner to confirm that he has committed any offence, the detention order is absolutely perverse and illegal and needs to be quashed immediately. Therefore, the matter is taken up for final determination today itself and needs to be allowed for the aforesaid reasons.
Learned advocate, Mr.Dahiya appearing for the petitioner-detenu has invited my attention to the order of detention dated 13.11.2017, by which, the detenu was arrested and sent to Rajkot Jail. The ground of detaining the accused is that one offence was registered against the petitioner under the provisions of Section 11(A)(B)(C) of Prevention of Cruelty to Animal Act, 1954; Section 66(1) and 8(4) of the Gujarat Animal Preservation Act, 2011. 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, except this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of the PASA Act. It is submitted that the order is vitiated because only on the basis of one offence registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires habitual involvement and,
therefore, the subjective satisfaction and the consequential order are vitiated.
Learned AGP Mr.Mehta, appearing for the State has opposed this petition.
Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of "cruel person" as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs 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)".
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 one offence 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.
Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.
In view of the above facts and circumstances of the case, the petition is allowed. The impugned order of detention dated 13.11.2017 passed by respondent No.2 herein is hereby quashed and set aside. The detenu 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. Direct Service is permitted.
In view of disposal of main Special Civil Application, Civil Application does not survive and stands disposed of accordingly.