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2014 DIGILAW 255 (GUJ)

CHHAGANBHAI BABARBHAI ODEDRA v. STATE OF GUJARAT

2014-02-17

S.H.VORA

body2014
Judgment Leave to add Superintendent, Sabarmati Central Jail, Ahmedabad as respondent No.4. Learned advocate for the petitioner to carry out amendment forthwith. 1. This petition is directed against the order of detention dated 9.1.2014 passed by respondent authority in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short 'the Act') by detaining the detenu as a “property grabber” as defined under Section 2(h) of the Act. Along with the order of detention, the petitioner is also served with the grounds of detention. It is alleged that the petitioner tried to enter into transaction of Government land and tried to grab the property. 2. It is submitted by Mr. Mangukiya, learned advocate for the petitioner that in the present case, complaint being C.R. No.173 of 2013 is filed against the petitioner for the offence punishable u/s 4(1)(A) of the Mines and Minerals Development Regulation Act, 1957 and section 379 of the Indian Penal Code. It was argued that the petitioner was himself got shocked when he was detained pursuant to the impugned order on the ground that he has been treated as “property grabber” defined under Section 2(h) of the Act. 3. Learned Assistant Government Pleader Ms. Desai submitted that the conduct of the detenu is covered under Section 2(h) of the Act and, therefore, the order of detention does not require any interference by this court. Section 2(h) of the Act defines the term “property grabber” as under: “2(h). 3. Learned Assistant Government Pleader Ms. Desai submitted that the conduct of the detenu is covered under Section 2(h) of the Act and, therefore, the order of detention does not require any interference by this court. Section 2(h) of the Act defines the term “property grabber” as under: “2(h). “property grabber” means a person who illegally takes possession of any lands not belonging to himself but belonging to Government, local authority or any other person or enters into or creates illegal tenancies or leave and licence agreements or any other agreements in respect of such lands or who constructs unauthorized structures thereon for sale or hire or gives such lands to any person on rental or leave and licence basis for construction or use and occupation of unauthorized structures or who knowingly gives financial aid to any person for taking illegal possession of such lands or for construction of unauthorised structures thereon or who collects or attempts to collect from any occupiers of such lands rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such occupiers by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things.” 4. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of isolated laws of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain the person. 5. So, the commission of isolated laws of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain the person. 5. No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and, therefore, the court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question whether it was necessary to preventively detain the detenue. It is also fruitful to refer to the decision of the Hon’ble Apex Court rendered in the case of Rekha V/s. State of Tamil Nadu through Secretary to Government and another reported in (2011)5 SCC 244 wherein, it is observed by the Hon’ble Apex Court that if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken recourse to. 6. Having heard the rival submissions of the parties and perused the record of the case, I am of the view that the registration of the offence as aforesaid cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that the activities, as alleged, are prejudicial to the public order or lead to disturbance of public order. There has to be nexus and link for such activities with disturbance of the public order. On careful perusal of the material available on record and considering the recent judgment dated 28.3.2011 passed by the Division Bench of this Court [Coram: S.J. Mukhopadhaya C.J. & J.B. Pardiwala, J] in Letters Patent Appeal No. 2732 of 2010 in Special Civil Application No.9492 of 2010 (Aartiben vs. Commissioner of Police), I am of the view that the activities of the detenu cannot be said to be in any manner prejudicial to the public order and therefore, the order of detention passed by the detaining authority cannot be sustained and is required to be quashed and set aside. 7. As a result of hearing and perusal of the record, it appears that the only material that was available with the detaining authority was one criminal case registered against the detenu and on that basis, it cannot be said that the activity of the detenu has become a threat to the maintenance of 'public order' and 'public health'. Mere involvement of the detenu in such activity may not amount to dangerous activity by the detenu and mere mention of them, unless supported by any evidence, cannot be said to be material germane for the purpose of arriving at the subjective satisfaction that the activity of the detenu is prejudicial to the maintenance of 'public order' and 'public health'. 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. 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 public order comes within the scope of the Act.” 8. The property grabbing incident would not be classified to be any danger or imminent danger to public order situation nor can it be so classified without their being any cogent material on record. In the instant case, there appears to be none. Hence, order appears to be passed without application of mind. 9. In the result, this petition is allowed. The impugned order of detention dated 9.1.2014 passed by respondent authority is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith if the detenu is not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.