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2007 DIGILAW 771 (GUJ)

ANILBHAI JIVABHAI PARSAN v. STATE OF GUJARAT

2007-12-05

M.D.SHAH

body2007
( 1 ) HEARD learned Counsel Mr. S. M. Chudasma for the petitioner-detenu and learned AGP Mr. Apurva Dave for the respondents. ( 2 ) THE petitioner-detenu has challenged the legality and validity of the order of detention dated 30-01-2007 passed by the Police Commissioner, Rajkot City, in exercise of powers under sub-section (2) of Section 3 of Gujarat Prevention of Anti-social Activities Act, 1985 (for short "the PASA Act" ). ( 3 ) THE petitioner-detenu has been branded as a "dangerous Person" within the meaning of Section 2 (C) of PASA Act. The grounds of detention supplied to the petitioner indicate that for recording subjective satisfaction, the detaining authority has relied on five pending cases of theft registered against the detenu being C. R. No. 342/06, C. R. No. 343/06, C. R. No. 07/07, C. R. No. 08/07 and C. R. No. 13/07 all under the Indian Penal Code. All the cases are relating to theft and sale of two wheelers and mobile phone. The detaining authority has considered certain statements of witnesses, and, thereafter, the detention order came to be passed. ( 4 ) THE learned Advocate for the detenu has assailed the impugned order of detention on several grounds as stated in the memo of petition. However, he has confined his arguments mainly on the ground that the activities of the detenu as a Dangerous Person has adversely affected or is likely to affect adversely the maintenance of public order. ( 5 ) THE learned Counsel for the detenu submitted that the detaining authority ought not to have recorded subjective satisfaction on mere registration of above criminal cases which are pending that the activities of the detenu have potential to disturb the public order. ( 6 ) THIS petition is capable of being disposed of on the sole ground that the activities of the petitioner were not prejudicial to the maintenance of public order. In the present case, merely on the basis of commission of offences of theft and sale of two wheelers, it cannot be said that the activities of the detenu are prejudicial to the maintenance of public order. In the present case, merely on the basis of commission of offences of theft and sale of two wheelers, it cannot be said that the activities of the detenu are prejudicial to the maintenance of public order. To reach to the subjective satisfaction that activities of theft and involvement in the criminal cases aforestated by the petitioner-detenu were prejudicial to the maintenance of public order, there should be cogent and credible material showing that the activities of the petitioner directly or indirectly were causing or were likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property etc. while undertaking this exercise, the detaining authority must draw a clear line between the cases falling within breach of law and order and breach of public order. In the opinion of this Court, the activities of the present petitioner-detenu can at the most fall within breach of law and order which can be adequately punished otherwise. In this context reference may be had to the decision rendered in the case of Harpreet Kaur Vs. State of Maharashtra, reported in 1992 SC 797, wherein it has been held that the involvement of the accused in fourteen offences including offences of lifting gas cylinders cannot be said to be prejudicial or dangerous to the maintenance of public tranquility and the authority was not justified in arriving at the subjective satisfaction that the activities of the petitioner were likely to affect the maintenance of public tranquility. ( 7 ) IN view of the above settled legal position, the say of the learned Counsel for the detenu that the detaining authority has committed grave error in arising at a subjective satisfaction that the detenu is a "dangerous Person" and his activities are prejudicial or dangerous to maintenance of public order requires to be accepted. The order of detention, is, therefore, not sustainable in the eye of law. ( 8 ) FOR the reasons recorded above, the petition is allowed. The impugned order of detention dated 30. 01. 2007 passed by the Police Commissioner, Rajkot City is quashed and set aside. The detenu Anil Jivabhai Parsana is ordered to be set at liberty forthwith if not required in connection with any other case by any other authority. Rule is made absolute accordingly. Direct service is permitted.