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2015 DIGILAW 638 (GUJ)

Salim Usmanbhai Sumra v. State of Gujarat

2015-06-26

Z.K.SAIYED

body2015
JUDGMENT Z.K. Saiyed, J. 1. By way of this petition, wife of the petitioner- detenu has challenged the order of detention dated 23.04.2015 passed by respondent 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 (for short, 'the PASA Act') and has also prayed for an order to set him free from detention. 2. Learned advocate appearing on behalf of the petitioner- detenu has invited the attention of the Court to the order of detention dated 23.04.2015, by which the petitioner- detenu was arrested. The ground for detaining the petitioner- detenu has been shown to be the solitary offence which was registered with the Shahpur Police Station vide II-C.R. No. 3047 of 2015 for the offence punishable under Section-5, 6, 6(B)(1)(2)(3) and 8 of the Gujarat Animal (Amendment) Preservation Act, under Section-11(E)(L) of the Animal Cruelty Act, under Sections-335 and 336 of the BPMC Act and under Section-119 of the G.P. Act. 3. Learned advocate appearing on behalf of the petitioner- detenu submitted that except this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of the PASA Act. It is submitted that the order is vitiated because only on the basis of one offence registered against the petitioner, and in absence of any other material to show the involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a 'cruel person'. The definition of 'cruel person' requires habitual involvement and, therefore, the subjective satisfaction and consequential order are vitiated. 4. On the other hand, this petition has been vehemently opposed by the learned AGP appearing for the State. According to the learned AGP, there are sufficient grounds to issue the detention order. Learned AGP has submitted that the detention order was issued after careful consideration of the materials available before the detaining authority. 5. 4. On the other hand, this petition has been vehemently opposed by the learned AGP appearing for the State. According to the learned AGP, there are sufficient grounds to issue the detention order. Learned AGP has submitted that the detention order was issued after careful consideration of the materials available before the detaining authority. 5. Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of 'cruel person' as provided in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which reads as under:-- "2(bbb) 'cruel person' means, a person who either by himself or as member or leader of a gang habitually commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom.LXXII of 1954)." 6. It is clear from the reading of the definition that the person to be branded as a 'cruel person' has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term 'habitually' examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitually or repetitively involved in the offence. 7. Under the circumstances, the subjective satisfaction that the petitioner is a 'cruel person' on the basis of which he has been detained is vitiated. 8. In the result, this petition succeeds and is hereby allowed. The order of detention dated 23.04.2015 passed by the respondent authority is hereby ordered to be quashed and the detenu is ordered to be set at liberty forthwith if he is not required in any other case. Rule is made absolute. Direct service is permitted.