Tikmaram @ Tikuram S/O Lakhuram Vishnaram Jani Through His Cousin Brother Bhanwara Ram Ladharam Jat vs State Of Gujarat

Biren Vaishnav, J

Heard learned advocates appearing for the respective parties through video conferencing.

The present petitions are directed against orders of detention dated 17.01.2021 impugned in each petition 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 petitioners â€" detenue as defined under section 2(b) of the Act.

Learned advocate for the detenue submits that the orders of detention impugned in these petitions deserve to be quashed and set aside on the

ground of registration of solitary offence under the Prohibition Act which 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 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 petitioners

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 case

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

case, 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 AGP for the respondent State supported the detention orders passed by the authority and submitted that sufficient materials and evidence

were found during the course of investigation, which were also supplied to the detenue indicate that detenue are in habit of indulging into the activity as

defined under section 2(b) of the Act and considering the facts of the case, the detaining authority has rightly passed the orders of detention and

detention orders deserve to be upheld by this Court.

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 single offence alleged in the FIR

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 are persons within the meaning of section 2(b) of the Act. Except general statements, there is no material on record

which shows that the detenue are 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€​

In view of above, I am inclined to allow these petitions, because simplicitor registration of an FIR 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 petitions are hereby allowed and the impugned orders of detention dated 17.01.2021 passed by the respondent â€

detaining authority are hereby quashed and set aside. The detenue are ordered to be set at liberty forthwith if not required in any other case. Registry

to communicate the present order to the authorities forthwith by email/fax.