C/SCA/6708/2024 JUDGMENT DATED: 11/06/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6708 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ABHIMANYU @ MANNU RAJENDRASINGH BHADORIYA
Versus
COMMISSIONER OF POLICE & ORS.
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Appearance:
MR HEMANT B RAVAL(3491) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
DS AFF.NOT FILED (R) for the Respondent(s) No. 1,2
LB DABHI APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 11/06/2024
ORAL JUDGMENT
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C/SCA/6708/2024 JUDGMENT DATED: 11/06/2024
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This petition has been filed by the petitioner
Abhimanyu @ Mannu Rajendrasinh Bhadoriya–
detenue, challenging the validity of the order of
detention dated 13.12.2023, passed by the Detaining
Authority in exercise of powers conferred on him
under Sub-Section (1) of Section 3 of the Gujarat
Prevention of Anti-social Activities Act, 1985 (herein
after referred as ‘the Act of 1985).
2. This Court has heard learned counsel Mr. H.B. Raval
and Mr. LB Dabhi, learned Additional Public Prosecutor
for the respondent State.
3. Learned advocate for the detenue submits that the
grounds of detention has no nexus to the “public
order”, but is a purely a matter of law and order, as
registration of the offence cannot be said to have
either affected adversely or likely to affect adverse the
maintenance of public order as contemplated under
the explanation sub-section (4) of Section 3 of the Act,
1985 and therefore, where the offences alleged to
have been committed by the detunue have no bearing
on the question of maintenance of public order and his
activities could be said to be a prejudicial only to the
maintenance of law and order and not prejudicial to
the maintenance of public order.
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4. On the other hand, learned State Counsel opposing
the application contended that, the detenue is
habitual offender and his activities affected at the
society at large. In such set of circumstances, the
Detaining Authority, considering the antecedents and
past activities of the detenue, has passed the
impugned order with a view to preventing him from
acting in any manner prejudicial to the maintenance
of public order in the area of Ahmedabad.
5. Having considered the facts as well as the
submissions made by the respective parties, the issue
arise as to whether the order of detention passed by
the Detaining Authority in exercise of his powers
under the provisions of the Act of 1985 is sustainable
in law?
6. The grounds of the alleged antisocial activities of the
detenue as mentioned in the detention order are that,
the detenue himself and his associates causing
injuries to the innocent persons of that locality by
using weapons, whereby, it creates feeling of
insecurity amongst the general public or any section
thereof or grave or wide spread danger to life,
property or public health. In the facts of the present
case, it appears that, six criminal offences under
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Section 379, 457 and 114 of the Indian Penal Code
were registered with different Police Station of
Ahmedabad. On registration of the offences, the
applicant was arrested and later on, he was enlarged
on bail.
7. After careful consideration of the material, we are of
the considered view that on the basis of two theft
cases, the authority have wrongly arrived at the
subjective satisfaction that the activities of the
detenue could be termed to be acting in a manner
‘prejudicial to the maintenance of public order’. It will
be beneficial to refer the dictum of law laid down by
the Apex Court in the case of Piyush Kantilal
Mehta Vs. Commissioner of Police, Ahmedabad,
1989 Supp (1) SCC 322, wherein, the detention
order was made on the basis of the registration of
the two prohibition offences. The Apex Court after
referring the case of Pushkar Mukherjee Vs. State
of Bengal, 1969 (1) SCC 10, made a distinction
between ‘law and order’ and ‘public order’. Paras-17
& 18 of decision read thus:
“17. In this connection, we may refer to a decision of
this Court in Pushkar Mukherjee v. State of West
Bengal, where the distinction between `law and
order' and `public order' has been clearly laid down.
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Ramaswami, J. speaking for 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
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public order comes within the scope of the Act."
18. In the instant case, the detaining authority, in our
opinion, has failed to substantiate that the alleged
anti- social activities of the petitioner adversely affect
or are likely to affect adversely the maintenance of
public order. It is true some incidents of beating by
the petitioner had taken place, as alleged by the
witnesses. But, such incidents, in our view, 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.
It may be that the petitioner is a bootlegger within
the meaning of section 2(b) of the Act, but merely
because he is a bootlegger he cannot be preventively
detained under the provisions of the Act unless, as
laid down in sub-section (4) of section 3 of the Act,
his activities as a bootlegger affect adversely or are
likely to affect adversely the maintenance of public
order We have carefully considered the offences
alleged against the petitioner in the order of
detention and also the allegations made by the
witnesses and, in our opinion, these offences or the
allegations cannot be said to have created any
feeling of insecurity or panic or terror among the
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members of the public of the area in question giving
rise to the question of maintenance of public order.
The order of detention cannot, therefore, be upheld.”
8. For the reasons recorded, we are of the considered
opinion that, the material on record are not sufficient
for holding that the alleged activities of the detenue
have either affected adversely or likely to affect
adversely the maintenance of public order.
9. Accordingly, this application stands allowed. The
order impugned dated 13.12.2023 passed by the
respondent authority is hereby quashed. We direct
the detenue to be set at liberty forthwith, if he is not
required in any other case. Rule is made absolute
accordingly. Direct service permitted.
(ILESH J. VORA,J)
(VIMAL K. VYAS, J)
P.S. JOSHI
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