C/SCA/21790/2023 JUDGMENT DATED: 12/06/2024
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21790 of 2023
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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IMRANMIYA @ POPAT YAKUBMIYA MALIK
Versus
COMMISSIONER OF POLICE & ORS.
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Appearance:
NABILKHAN F YUSUFZAI(8994) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 2
MR LB DABHI, AGP for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE VIMAL K. VYAS
Date : 12/06/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The petitioner herein namely Imranmiya @ Popat
Yakubmiya Malik came to be preventively detained vide the
detention order dated 15.12.2023 passed by the Police
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Commissioner, Ahmedabad, as a “dangerous person” as
defined under Section 2(c) of the Gujarat Prevention of Anti-
social Activities Act, 1985 (herein after referred as ‘the Act of
1985).
2. By way of this petition, the petitioner has challenged the
legality and validity of the aforesaid order.
3. This Court has heard learned counsel for the petitioner
and learned AGP for the respondent State.
4. 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.
5. 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.
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6. 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?
7. The order impugned was executed upon the applicant
and presently he is in Jail. In the grounds of detention, a
reference of four criminal cases registered against the
applicant under the Indian Penal Code was made and further it
is alleged that, the activities of the detenue as a “dangerous
person” affects adversely or are likely to affect adversely the
maintenance of public order as explained under Section 3 of
the Act of 1985. Admittedly, in all the said offences, the
applicant was granted bail.
8. After careful consideration of the material, we are of the
considered view that on the basis of five criminal cases, the
authority has 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’. In our
opinion, the said offences do not have any bearing on the
maintenance of public order. In this connection, we may refer
to the decision of 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 held and
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observed that mere disturbance of law and order leading to
detention order is thus not necessarily sufficient for action
under preventive detention Act. Paras-17 & 18 are relevant to
refer, which 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. Ramaswami, J. speaking for the
Court observed as follows:
10. "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
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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."
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 members of the
public of the area in question giving rise to the question of
maintenance of public order. The order of detention cannot,
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therefore, be upheld.”
9. 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 and therefore, the subjective
satisfaction arrived at by the detaining authority cannot be
said to be legal, valid and in accordance with law.
10. Accordingly, this petition stands allowed. The order
impugned dated 15.12.2023 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)
Rakesh
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