Sachin @ Tanki Govindbhai Manilal Patni Thru His Mother Amratben Govindbhai Patni vs Commissioner Of Police & 2 Other(s)

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 13.01.2020 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 Actâ€) whereby the petitioner has been detained as a ‘dangerous person’. The aforesaid order

came to be executed upon the petitioner on the very same day.

[2.0] Shri J.M. Talota, learned advocate for the petitioner â€" detenue submitted that for branding the petitioner â€" detenue as 'dangerous person', as

defined under Section 2(c) of the Act, the detaining authority has relied on two offences being (i) C.R.No.I-231 of 2018 registered with Sheharkotda

Police Station for the alleged offence punishable under Sections 392, 394 and 114 of the Indian Penal Code and (ii) C.R.No.I-318 of 2019 registered

with Sheharkotda Police Station for the offence punishable under Sections 394 and 114 of the Indian Penal Code and under Section 135(1) of the

Gujarat Police Act. It is further submitted that the case at serial No.(i) relied on by the detaining authority is alleged to be committed on 20.12.2018,

which is too stale a case to be considered, that too, for passing an order of preventive detention as on 13.01.2020. It is further submitted that then the

detention order remains to be based on solitary offence in proximate time, that too, committed on 10.09.2019. It is further submitted that reading the

FIR itself as also the record of the case, from nowhere it can be concluded that the activities of the detenue is prejudicial to the maintenance of public

order. He has further submitted that at best the activities may be in breach of law and order and not the public order. He has also submitted that the

registration of offences under the Indian Penal Code simplicitor will not reflect breach of public order. Over and above that, the detaining authority has

relied on statements of two anonymous witnesses. 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 11.01.2020 and 12.01.2020 whereas it has come to be verified by the detaining authority

himself on 13.01.2020 and the petitioner came to be released on bail by an order dated 10.01.2020. The order of preventive detention has come to be

made on 13.01.2020. Therefore, he has submitted that the detention order is passed on solitary offence in proximate time, and therefore, it is required

to be quashed and set aside.

[3.0] As against that, Shri Shivam Dixit, learned Assistant Government Pleader, for the respondent â€" State supported the order of preventive

detention passed by the authority and submitted that after considering the material placed before the detaining authority and after having subjectively

satisfied, the order of detention came to be passed. 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 and no interference is called for, as subjective satisfaction has been

validly recorded, and therefore, he has requested to reject the petition.

[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 Mukherjee &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.â€​

[4.1] Not only that, mere registration of solitary offence in proximate time, that too, of snatching/robbing the mobile phone simplicitor would not reflect

any breach of public order. The cumulative effect of the same along with the method and manner in which the statement of anonymous witnesses is

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 detention based on such material.

[4.2] Considering the submissions made by the appearing parties, it appears that detaining authority has verified, the statement of anonymous

witnesses recorded on 11.01.2020 and 12.01.2020, on 13.01.2020 and having found the fear of witnesses genuine from the petitioner has claimed the

privilege for not disclosing the identity and the address of the witnesses. Co-incidentally, on the very same day of the verification, an order of detention

came to be passed. Except the incident of personal violence to the annonymous witnesses rest of the part of statement is verbatim, more or less,

same. It appears that, not only the recording of statement 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 statement.

Therefore, subjective satisfaction recorded by the detaining authority based on such statement of anonymous witnesses and verification thereof is

vitiated as no man of a normal prudence would record the order of preventive detention based on such statements verified.

[5.0] In view thereof, this petition is allowed. The impugned order of detention dated 13.01.2020 bearing No.PCB/DTN/PASA/54/2020 passed by the

respondent No.2 herein â€" Police Commissioner, Ahmedabad City is hereby quashed and set aside. The petitioner â€" detenue is ordered to be set at

liberty forthwith, if not required to be detained in any other case. Rule made absolute.