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Judgment
Umesh A. Trivedi, J
[1.0.] This petition under Article 226 of the Constitution of India is directed against the order of preventive detention dated 30.04.2018 made by the Police Commissioner, Ahmedabad City, in exercise of powers under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the PASA Act') whereby, the petitioner has been detained as a 'dangerous person'. The aforesaid order came to be executed upon the petitioner on 13.09.2019.
[2.0.] Mr. O. I. Pathan, learned advocate for the petitioner submitted that to brand the petitioner as a 'Dangerous Person' under Section 2(c) of the PASA Act, the authority has relied on two offences registered at (i) C.R.No.I-126/2017 for the offence punishable under Section 379 of IPC registered on 29.04.2017 and (ii) C.R.No.I-89 of 2019 for the offence punishable under Section 379 of IPC registered on 29.04.2017. Pursuant to the registration of these offences, the applicant came to be arrested on 27.05.2017 and came to be released on bail vide order dated 26.03.2018 whereas in the second case arrested on 09.05.2017 and released on bail by an order dated 10.05.2017 as reflected from the order of detention. Over and above that, the detaining authority has relied on statements of two anonymous witnesses. He has also submitted that the registration of offences under the IPC simplicitor will not reflect breach of public order. He has, drawing attention of the Court to the date of recording statements of anonymous witnesses, submitted that it has come to be recorded on 29.04.2018 and verified by the detaining authority himself on 30.04.2018 whereas petitioner is ordered to be released on bail vide an order dated 10.05.2017. However, the order of preventive detention has come to be passed on 30.04.2018 and the same is executed upon the petitioner only on 13.09.2019, and therefore, there is inordinate delay snapping live link between his activities and order passed by the authority. However, he has submitted that mere registration of FIR/s for the offence under the IPC by itself would not render the petitioner liable in absence of any credible material to conclude that his activities are prejudicial to the maintenance of public order. He has submitted that the subjective satisfaction recorded by the detaining authority is vitiated, and therefore, order of preventive detention is required to be quashed and set aside.
[3.0.] As against that, Mr. Utkarsh Sharma, learned AGP, trying to salvage the situation on account of delay in passing the order, submitted that, after considering the material placed before the detaining authority and careful examination thereof, the order of preventive detention is passed by the detaining authority, and therefore, it cannot be said that there is any delay in passing and executing an order of detention. He has submitted that the detaining authority, having found the activities of the petitioner prejudicial to the maintenance of public order, has passed the order of detention ad no interference is called for, as subjective satisfaction has been validly recorded. He has further submitted that the delay of one year and five and half months, cannot be considered to be inordinate delay so as to call for interference by this Court with the order of detention, and therefore, he has submitted that the present petition is required to be dismissed.
[4.0.] Having heard the learned advocates for the appearing 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 breach of public order and the penal laws are sufficient enough to take care of the situation. Except the allegations, there is no credible material on record, which shows that the petitioner is acting in any manner prejudicial to the maintenance of public order. It will be fruitful to refer to a decision of the Supreme Court in the case of Pushkar Mukherejee & Ors. Vs. The State of West Bengal reported in AIR 1970 SC 852 where the distinction between 'law and order' and 'public order' has been clearly laid down:
"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."
[5.0.] Considering the submissions made by the parties, it is clear that mere registration of offences simplicitor will not reflect any breach of public order. The cumulative effect of the same alongwith the method and manner in which the statements of anonymous witnesses are recorded and verified, leads to only one conclusion that as such subjective satisfaction recorded by the detaining authority is invalid and no man of normal prudence would have passed an order of preventive detention based on such material. Therefore, it is liable to be quashed.
[6.0.] Considering the submissions made by the appearing parties, it appears that the detaining authority has verified the statements of anonymous witnesses on 30.04.2018 and having found the fear of witnesses from the petitioner correct, has claimed the privilege for not disclosing the name, address and place of business of the witnesses. Coincidentally, on the very same day, order of detention came to be passed. However, when the detaining authority had verified the statements, has not cared to assess with regard to live link about the prejudicial activities whether continued after last offence committed or not requiring passing of an order of preventive detention. Therefore, it appears that, not only the recording of statements of anonymous witnesses but the verification thereof is also a mere formality. If it is not incorrect for what is stated in it certainly it creates doubt about genuineness of the manner and method of recording and verifying the statements. Therefore, subjective satisfaction recorded by the detaining authority based on such statements of anonymous witnesses and verification thereof is vitiated as no man of normal prudence would record the order of preventive detention based on such statements. However, almost in all cases the language employed in it is verbatim same and therefore it creates doubt about the genuineness of not only as to contents of the statements, but as to existence of those witnesses too.
[7.0.] Coming to the next submission about delay in passing and executing an order of preventive detention, from the facts of the present case, it is clear that last offence committed by the petitioner on 29.04.2017 whereas an order of preventive detention came to be passed only on 30.04.2018 and executed on 13.09.2019. The impugned order of preventive detention is, therefore, liable to be set aside on the ground of delay in passing the order as also executing the order of preventive detention. There must be live and proximate link between the grounds of detention alleged by the detaining authority and the purpose of detention. The live and proximate link between the order of detention and the purpose for which it has been passed is snapped in the present case on account of undue, unexplained and unreasonable delay in passing the order of detention as also in executing the order. Here in the present case, the detaining authority took about 1 year to pass an order of preventive detention based on the prejudicial activities of the petitioner. Therefore, on this ground also, subjective satisfaction arrived at by the detaining authority is vitiated.
[8.0.] This order is required to be set aside on one more ground that the delay in not only passing of the order from the date of last offence committed, which appears to be delay of a year from the last case registered and more than a month from the date of his release in one of the case. Not only that, though the impugned order of detention came to be passed on 30.04.2018, the authority could not execute the same for pretty long time of nearly one year and five and half months. In absence of any reasonable explanation thereof, it suffers from undue, unexplained delay and therefore on that ground also the order of detention is required to be set aside.
[9.0.] In view of the above, this petition is allowed. The impugned order of detention being No.PCB/DTN/PASA/265/2018 passed by respondent No.2- The Police Commissioner, Ahmedabad City, dated 30.04.2018 is hereby quashed and set aside and the petitioner - detenue is hereby ordered to be set at liberty forthwith, if not required to be detained in any other case. Rule is made absolute.