C/SCA/19583/2023 JUDGMENT DATED: 30/04/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19583 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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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 ?
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AFZALBHAI KASAMBHAI LAKHANI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR.AZAD A MAJOTHI(9904) for the Petitioner(s) No. 1
MR ROHAN RAVAL, AGP for the Respondent(s) No. 1,2 and 3
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 30/04/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE SAMIR J. DAVE)
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C/SCA/19583/2023 JUDGMENT DATED: 30/04/2024
1. The present petition is directed against order of detention
dated 20.10.2023 passed by the respondent – detaining authority
in exercise of powers conferred under section 3(2) of the Gujarat
Prevention of Anti Social Activities Act, 1985 (for short “the Act”)
by detaining the petitioner – detenue as defined under section 2(c)
of the Act.
2. 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 three FIRs with Sikka
Police Station and Jamnagar City “A” Division Police Station
respectively for the offences punishable under various sections of
the Indian Penal Code by itself cannot bring the case of the 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.
3. 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
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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.
4. Learned advocate has raised the other grounds for quashment
of detention order, but in view of a decision of the Supreme Court
in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852],
even though the one ground is fake and the other grounds are not
fake, the detention order has to be stroked out as not passed in
accordance with law.
5. Learned AGP for the respondent State supported the detention
order passed by the authority and submitted that sufficient material
and evidence was found during the course of investigation, which
was also supplied to the detenue indicate that detenue is in habit of
indulging into the activity as defined under section 2(c) of the Act
and considering the facts of the case, the detaining authority has
rightly passed the order of detention and detention order deserves
to be upheld by this Court.
6. Having heard learned advocates for the parties and having
perused the documents on record, the petitioner has been detained
as a dangerous person by the impugned order of detention dated
20.10.2023 passed by the detaining authority -District Magistrate,
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Jamnagar.
7. The detaining authority has relied upon three offences
registered with Sikka Police Station and Jamnagar City “A” Division
Police Station respectively, the details of which are as under;
Sr Name of police station Sections Date of arrest Date of
No and Crime register releasing on
number and date bail
1 Sikka Police Station 120(B), 153A, 01.01.2023 18.10.2023
CR No. 292(2)A, 294(B),
11202057220639 of 295A, 298, 469,
2022 500, 501, 504,
505(2) of IPC and
Section 67 of the IT
Act
2 Jamnagar City “A” 153A, 295A, 298, 21.01.2023 14.03.2023
Division Police Station 499, 500, 501,
CR No. 505(2) of IPC
11202008230023 of
2023
3 Sikka Police Station 406, 420, 504, 17.01.2023 18.01.2023
CR No. 506(2) of IPC
1120205720011 of
2023
8. The perusal of the aforesaid details would indicate that in
connection with the first offence registered at Sikka Police Station,
the petitioner was arrested on 01.01.2023 and released on bail on
18.10.2023; in the second offence registered with Jamnagar City
“A” Division Police Station, he was arrested on 21.01.2023 and
released on bail on 14.03.2023 whereas in the third offence
registered at Sikka Police Station, he was arrested on 17.01.2023
and enlarged on bail on 18.01.2023 and the FIR of third offence
has been quashed qua the present petitioner in Criminal Misc.
Application No. 21174 of 2023 on 22.01.204 by coordinate bench
of this court.
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9. 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 baring 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. Except general statements, there is no
material on record which shows that the detenue is 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
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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.”
10. The Apex Court in the case of Kalidas C. Kahar Vs. State of
Gujarat and Ors., reported in 1989 Supple. II SCC 155, has held
that the detaining authority has to undertake a meaningful exercise
and apply the mind to the documents placed alongwith the
sponsoring proposal and then come to the conclusion by
subjectively satisfying itself. Looking to objectively to the documents
on record and conclude that the detention is the only option
available to the petitioner, this exercise is not evident from either
from the grounds of detention, the documents accompanying order
of detention or any affidavit of the detaining authority in this
regards.
11. The Court has taken into consideration the fact that the
petitioner has been enlarged by the Court of proper jurisdiction
where the option of alternative remedy of cancellation of bail was
available to the sponsoring authority, which the sponsoring
authority has not resorted to and hence, as is held in recent
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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:-
“19. In any case, the State is not without a remedy, as in case
the detenu 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.”
12. 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.
13. In the result, this Special Civil Application is allowed. The
impugned order of detention dated 20.10.2023 passed by the
respondent authority is hereby quashed and set aside. The detenue
is ordered to be set at liberty forthwith if not required in any other
case
Rule is made absolute accordingly. Direct service is permitted.
(A.Y. KOGJE, J)
(SAMIR J. DAVE,J)
K. S. DARJI
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