C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20275 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
NASIR @ SHAHRUKH S/O RASHID SHEKH THROUGH SHEKH RASHID S/
O SHEKH KAMAR MAKAN
Versus
STATE OF GUJARAT & ORS.
================================================================
Appearance:
MR. DHRUVIN U MEHTA(9993) for the Petitioner(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2,3
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 30/04/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
Page 1 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
1. This petition under Article 226 of the Constitution of
India is filed for following relief:-
“(A) xxx
B) quash and set-aside the impugned order of
detention dated 20.10.2023 passed by the
respondent no.2, by issuing appropriate writ,
order or direction.”
2. Thus, essentially, the challenge is to the order of
detention dated 20.10.2023 passed by the Police Commissioner,
Surat, respondent No.2 herein, by which the petitioner has been
detained as a “dangerous person” based on three offences
registered against him, details of which are as under:-
Sr. Name of Police Station CR No. and date Sections Date of bail
No. order
1 Udhna Police Station A-11210047232234 of 379(A)(3) 13.10.2023
2023 dated 09.05.2023 and 114 of
IPC
2 Udhna Police Station A-11210047232239 of 379(A)(3) 13.10.2023
2023 dated 09.05.2023 and 411 of
IPC
3 Udhna Police Station A-11210047232241 of 379(A)(3) 13.10.2023
2023 dated 20.09.2023 and 114 of
IPC
4 Udhna Police Station A-11210047232228 of 379(A)(3) 17.10.2023
2023 dated 21.09.2023 and 114 of
IPC
3. Learned advocate for the detenue submits that the
order of detention impugned in this petition deserves to be quashed
and set aside on the ground of registration of the offences under
the Indian Penal Code by itself cannot bring the case of the
Page 2 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
detenue within the purview of definition under section 2(c) 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/s 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 petitioner 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 cases
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 cases, 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.
3.1 It is submitted that the offences are pertaining theft of
mobile phones of private individuals and will therefore not
amounting to breach of public order as no where in the grounds of
detention, it is coming out that the sporadic act of the petitioner
has caused disturbance to public order. In any case, option was
always available to the detaining authority to resort to cancellation
Page 3 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
of bail of the petitioner.
3.2 It is submitted that the order of detention came to be
passed on the very next day when the petitioner was released on
regular bail in the forth offence on 19.10.2023, i.e. to say that same
day verification was carried out and order of detention was passed.
4. As against this, learned AGP submitted that the
detaining authority had sufficient material on the record to pass the
order of detention, particularly reference to the same is made by
the detaining authority in the very order of detention where the
detaining authority has referred to the fact that it was the
petitioner who had himself confessed to commission of theft of
vehicle. Not only that, there are other supporting evidences also
which the detaining authority has taken into consideration like
drawing of panchnama, which led to discovery of mobile phones of
which theft was committed. The two FIRs registered against the
petitioner are under Chapter-16 and 17 of IPC, thereby attracting
the ingredients of “dangerous person”.
5. 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 offences alleged in the FIR/s, which pertsin to
Page 4 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
separate incidents of mobile phone theft, in which there is no direct
evidence execpt for recovery of such mobile phones, it 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(c) 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 is a person within the meaning of section 2(c)
of the Act. 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
Page 5 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
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.”
6. As is held in the preceding paras, the offence in which
the petitioner is involved, are against private individuals and the
petitioner has been enlarged on bail and therefore, ordinary law is
sufficient to prevent the petitioner from indulging in further
offence, particularly when the petitioner has been granted bail in
connection with both the offences on which the detaining authority
has relied upon to arrive at a subjective satisfaction. At the same
time, the detaining authority has not taken into consideration
restoring to the procedure for cancellation of bail.
7. The Court has also taken into consideration the fact
that the petitioner has been enlarged on regular bail by the Court
of competent jurisdiction and the detention order does not reflect
application of mind to the fact that the Detaining Authority has
considered cancellation of bail to be ineffective method to curtail
activities of the petitioner. Therefore, in the opinion of the Court,
the Detaining Authority not having taken into consideration the
Page 6 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
cancellation of bail option. The subjective satisfaction would stand
vitiated as is held in recent decision of the Hon’ble Supreme Court
in the case of Shaik Nazeen v/s. State of Telanga and Ors.
reported in 2023 (9) SCC 633, the Hon’ble Supreme Court has
made following observations in para 19 as under:-
“19. In any case, the State is not without a remedy, as
in case the detenue is much a menace to the society as
is being alleged, then the prosecution should seek for
the cancellation of his bail and/or move an appeal to the
Higher Court. But definitely seeking shelter under the
preventive detention law is not the proper remedy
under the facts and circumstances of the case.”
8. The Court also finds that the order of detention came to
be passed on the very next day when the petitioner was released on
regular bail in the fourth offence on 19.10.2023, i.e. to say that
same day verification was carried out and order of detention was
passed.
9. In view of above, we are inclined to allow this petition,
because simplicitor registration of FIR/s 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.
10. In the result, the present petition is hereby allowed and
the impugned order of detention dated 20.10.2023 passed by the
Page 7 of 8
C/SCA/20275/2023 JUDGMENT DATED: 30/04/2024
respondent–detaining authority is hereby quashed and set aside.
The detenue is ordered to be set at liberty forthwith if not required
in any other case.
11. Rule is made absolute accordingly.
Direct service is permitted.
Sd/-
(A.Y. KOGJE, J)
Sd/-
(SAMIR J. DAVE,J)
SHITOLE
Page 8 of 8