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Judgment
Biren Vaishnav, J
[1] Heard Mr.Nishit P. Thakkar, learned advocate for the petitioner and Ms.Manisha L. Shah, learned Government Pleader appearing with
Ms.Aishwarya Gupta, learned AGP for the respondent â€" State through Video Conferencing.
[2] Rule. Learned AGP Ms.Gupta waives services of notice of Rule for the respondent â€" State.
[3] This Court has rendered a decision vide order dated 27.2.2015 in Special Civil Application No.2565 of 2015 which reads as under:
“By way of this petition, the petitioner-detenu has challenged the order of detention dated 30th December, 2014 passed by the District Magistrate,
Ahmedabad, in exercise of powers conferred on him under sub-section(1) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985
(for short, 'the PASA Act') and has also prayed for an order to set him free from detention. I take notice of the fact that the petitioner has been
detained as a 'bootlegger' and 'dangerous person'. I also take Page 1 of 9 Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/SCA/2565/2015
JUDGMENT notice of the fact that in the grounds of detention order dated 30th December, 2014, the detaining authority has relied upon six cases
registered with the Bavla, Police Station vide [1] CR No.140 of 2012 [2] CR No.153 of 2012[3] CR No.198 of 2012 [4] CR No.31 of 2013 [5] CR
No.172 of 2013 [6] CR No.254 of 2014 of the offence punishable under Sections 66(1)B, 65AE, 116B and 81 of the Prohibition Act and the detaining
authority has also considered two FIRs registered with the Bavla Police Station being C.R. No.I-79 of 2012 of the offence punishable under Sections
307, 147, 148, 149 of the Indian Penal Code and C.R. No.I-97 of 2014 of the offence punishable under Sections 307, 332, 323 and 504 of the Indian
Penal Code. Section 2(b) of the PASA Act defines the term 'bootlegger', which reads as under:- “S.2(b) ""bootlegger"" means a person who distills,
manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision
of the Bombay Prohibition Act, 1949 (Bom.XXV of 1949) and the rules and orders made thereunder, or of any other law for the time being in force or
who knowingly expends or applies any money or supplies any animals, vehicle, vessel or other conveyance or any receptacle or any other material
whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other
manner the doing of any such thing.†Section 3 of the PASA Act speaks about the power to make orders detaining certain persons. It reads as
under: “Sec.3 Power to make orders detaining certain persons: (1) The State Government may if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial to the maintenance of Page 2 of 9 Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/
SCA/2565/2015 JUDGMENT public order, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the
circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police,
the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of
Police, may also, if satisfied as provided in sub- section (1), exercise the powers conferred by the said subsection. (3) When any order is made under
this section by an authorised officer, he shall forthwith report the fact to the State Government, together with the grounds on which the order has been
made and such other particulars as, in his opinion, has a bearing on the matter, and no such order shall remain in force for more than twelve days after
the making thereof, unless, in the meantime, it has been approved by the State Government. (4) For the purpose of this section, a person shall be
deemed to be ""acting in any manner prejudicial to the maintenance of public order"" when such person is engaged in or is making preparation for
engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect
adversely or are likely to affect adversely the maintenance of public order. Explanation:- For the purpose of this sub-section, public order shall be
deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to
in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or
any section thereof or a grave or widespread danger to life, property or public health."" In this connection, I may 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 Page 3 of 9 Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/SCA/2565/2015 JUDGMENT 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.†Having heard the learned counsel for
the parties and having gone through the grounds of detention, in my opinion, the detaining authority has failed to substantiate that the alleged antisocial
activities of the petitioner-detenu adversely affect or are likely to affect adversely the maintenance of public order. Just because six cases have been
registered against the petitioner-detenu under the Prohibition Act, by itself, do not have any bearing on the maintenance of public order. The petitioner
may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even
tempo of the life of the community much less public health. It may be that the petitioner-detenu is a 'bootlegger' within the meaning Page 4 of 9
Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/SCA/2565/2015 JUDGMENT of Section 2(b) of the PASA Act, but merely because he is a
'bootlegger' he cannot be preventively detained under the provisions of the PASA Act unless, as laid down in sub-section (4) of Section 3 of the
PASA Act, his activities as a 'bootlegger' affect adversely or are likely to affect adversely the maintenance of public order. Ms. Thakore, the learned
advocate appearing for the detenu submitted that the order of detention is malicious, unjust and illegal. Learned counsel submitted that there is no
material available with the detaining authority to indicate that the detenu is a dangerous person as defined under Section 2(c) of the PASA Act nor
there is any material or antecedent to show that he is a habitual offender and involved in antisocial activities prejudicial to the maintenance of public
order. It is his case that this order of detention is nothing but abuse of power at the hands of the Police Commissioner. Having heard the learned
counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the
order of detention deserves to be quashed. I am concerned only with the question as to whether there are sufficient grounds and materials available to
detain the detenu in prison without trial in exercise of powers conferred under Section 3(2) of the PASA Act, describing him as a 'dangerous person'
under Section 2(c) of the Act on the basis of the eight F.I.Rs. registered against the detenu. On plain reading of the allegations levelled in the F.I.Rs.,
Page 5 of 9 Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/SCA/2565/2015 JUDGMENT by any stretch of imagination, it cannot be said that the
incidents in question were such which disturbed the public order, peace and tranquility. I am of the view that merely because two offences are
registered under the Indian Penal Code that by itself is not sufficient to come to the conclusion that the public order has been disturbed. At this stage,
it would be expedient to quote the judgment rendered by the Division Bench of this Court in the matter of Ramesh Vandha Modhwadiya through
brother, Laxmanbhai Vandha v. State of Gujarat, reported in 2009(3) GLH 296, wherein in paragraph 11, the Division Bench has observed as under:-
“11. PASA Act has been enacted with a clear object to prevent the crime and to protect the society from anti-social elements and dangerous
characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable
criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and
incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. Law is
well settled that the power under the Act should be exercised with restraint and great caution. In order to pass an order of detention under the Act
against any person, the detaining authority must be satisfied that he is a dangerous person' within the meaning of Section 2(c) of the PASA Act, who
habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the
Penal Code or any of the offences punishable under Chapter V of the Arms Act as according to sub-section (4) of Section 3 of the Act it is such
`dangerous person' who for the purpose of Section 3 shall be deemed to be a person “acting in any manner prejudicial to the maintenance of public
order†against whom an order of detention may lawfully be made. Further, subsection (1) of Section 3 confers power on the State Page 6 of 9
Downloaded on : Tue Jun 09 12:53:59 IST 2020 C/SCA/2565/2015 JUDGMENT Government and a District Magistrate or a Commissioner of Police
under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from
acting in any manner prejudicial to the maintenance of `public order'. The explanation attached to sub- section (4) of Section 3 reproduced above in the
foregoing para contemplates that `public order' shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely
inter alia if any of the activities of any person referred to in sub-section (4) directly or indirectly, are causing or is likely to cause any harm, danger or
alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health. Sub-
section (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be `acting in any manner prejudicial to the
maintenance of public order' when such person is a `dangerous person' and engaged in activities which affect adversely or are likely to affect
adversely the maintenance of public order. It, therefore, becomes necessary to determine whether besides the person being a `dangerous person' his
alleged activities fall within the ambit of the expression `public order'. A distinction has to be drawn between law and order and maintenance of public
order.†In paragraphs 15 and 16, the Division Bench has, after considering the factual position on the record, observed as under:- “15. We find
that even going by the F.I.R. on the date of incident, it is alleged that the dentenu's father had a pistol with him. There is nothing to show that he had
fired with the pistol or caused any harm to anybody. Possession of pistol by detenu's father without license may be an offence so far as father is
concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the programme continued
without any disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R. it is stated that they had
not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have raised problems of law and
order, but we find it impossible to see that they impinged public order. No motive was also attributed against the detenu for creating such an incident.
In order to bring the activities of a person within the expression of acting in any manner prejudicial to the Page 7 of 9 Downloaded on : Tue Jun 09
12:53:59 IST 2020 C/SCA/2565/2015 JUDGMENT maintenance of public order to fall out and extend and reach of the alleged activities must be of
such a nature the ordinary law cannot deal with it or prevent the subversive activities affecting the society. In our view, those incidents are not
sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question
occurred on 10.02.2008 would be sufficient to disturb the tempo of life of the community so as to disturb the public tranquility and public order. 16.
The incident referred to in the F.I.R. had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are being tried
for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1-
B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to detain
a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual offender,
apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public tranquility,
but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in which he was
involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The solitary incident
pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or normal life of the
community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere fact that the order
narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the
incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. Power under the
Act to detain a person in jail has to be exercised with restraint and great caution.†In the recent pronouncement of the Supreme Court in the matter
of Pebam Ningol Mikoi Devi v/s. State of Manipur and others, reported in (2010)9 SCC 61,8 the Supreme Court has considered all aspects pertaining
to individual liberty and has also held that in a criminal case, if it is initiated against the Page 8 of 9 Downloaded on : Tue Jun 09 12:53:59 IST 2020
C/SCA/2565/2015 JUDGMENT detenu, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to
pass an order of preventive detention under the National Security Act. In the result, this petition succeeds and is hereby allowed. The order of
detention dated 30th December, 2014 passed by the respondent authority is hereby ordered to be quashed and the detenu is ordered to be set at liberty
forthwith if he is not required in any other case. Rule is made absolute. Direct service is permitted.â€
[4] In the result, this petition succeeds and is hereby allowed. The order of detention dated 8.1.2020 passed by the respondent authority is hereby
ordered to be quashed and the detenu is ordered to be set at liberty forthwith if he is not required in any other case.
[5] Rule is made absolute accordingly.
[6] The Registry is directed to communicate this order to the concerned jail authority by fax or e-mail.