JUDGMENT & ORDER : A.J. Shastri, J. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs :- "12(A) Your Lordships be pleased to issue appropriate writ, order or directions of this Hon'ble High Court, directing the respondents herein to produce relevant papers and records, orders and grounds of detention which is passed against the present petitioner and after perusing the grounds of detention and the role of the petitioner proposed detenu, order of detention which has been passed by the respondent no. 2 i.e. the Police Commissioner, Ahmedabad City and approved by the State Government i.e. the respondent no. 1 may be quashed and set aside in the interest of justice; (B) Your Lordships be pleased to order that pending hearing, admission and final disposal of this petition, the petitioner may be protected and be further pleased to direct the respondents not to detain the present petitioner in pursuance to the order of detention under PASA Act which has been passed by the respondent no. 2 and approved by the respondent no. 1 in the interest of justice; (C) Your Lordships be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted." 2. The case of the petitioner is that on 10.05.2018 one Khodabhai Velabhai Bharwad resident of Bharwadvaas, Vatva, Ahmedabad has registered a complaint being C.R. No. -70 of 2018 for the offences punishable under Section 379 and 120B of the Indian Penal Code and Sections 3, 5, 6, (b), 7 and 8(2) (3) of the Gujarat Aninal Preservation (Amendment) Act, 2011 and under Sections 11(e)(1) of the Prevention of Cruelty to Animals Act, 1960 and Sections 335 and 336 of the BPMC Act lodged before the Vatva Police Station, Ahmedabad against several unknown persons. It is the case of the petitioner that the petitioner was neither named in the FIR nor played any role in the commission of alleged offences and though his name has been disclosed by other co-accused persons, resultantly, the petitioner is falsely implicated in the commission of crime. It is the case of the petitioner that the petitioner was neither named in the FIR nor played any role in the commission of alleged offences and though his name has been disclosed by other co-accused persons, resultantly, the petitioner is falsely implicated in the commission of crime. It has been alleged in the complaint that the vehicle in question which was said to have been used is belonging to the ownership of the petitioner and thereby, on the basis of the co-accused statement, though it cannot be admissible piece of evidence, and hit by Section 25 of the Evidence Act, the petitioner is apprehending the process of detention. As a result of this, for the aforesaid reliefs, at pre-execution stage, by raising several issues, the petition is brought before the Court under Article 226 of the Constitution of India. 3. It has been contended by the petitioner that the order of detention is passed by respondent no. 2 on account of commission of two offences registered under the Gujarat Animal Preservation (Amendment) Act, but the order of detention is not executed. It has been stated that the said offences are registered against the several persons and the co-accused who were sought to be detained and actually detained have been dealt with by this Court and their petitions have been allowed. Since the material with respect to those accused and with respect to the present petitioner is almost similar in nature, the present petition may be dealt with by granting the relief even at the pre-execution stage. 4. The petition was originally moved during the vacation i.e. on 05.06.2018 and thereafter notice was made returnable on 22.05.2018 and subsequently, it has come up for consideration in which, it was pointed out on 01.08.2018 that the present petitioner is identically situated to co-accused of Special Civil Application No. 8637 of 2018, this petition may be heard along with the said petition and looking to the material and since the co-ordinate Bench has already protected the co-accused in similar set of circumstance, on 01.08.2018, adinterim relief was continued which was originally granted on 21.06.2018 and with this background the present petition has come up for consideration finally. 5. 5. Though the present petition is at pre-execution stage, but the material which is sought to be relied upon appears to be identical to that of other co-accused petitions wherein the order of detention had actually been passed and since other co-accused have been protected by the co-ordinate Bench as well as their petitions are finally allowed in the background of similar set of circumstance, though this petition is at pre-execution stage, has been dealt with by this Court, looking to the similarity of the facts, same offences and on the principle of parity. There is no specific embargo that at pre-execution stage no petition can be entertained. In view of the law laid down by the series of decisions of this Court, the Court can exercise extra ordinary jurisdiction even at pre-execution stage and here is a case in which all the petitions of co-accused have been dealt with by this Court finally and the authority has not shown any discriminating material nor has filed any affidavit opposing this. The Court has dealt with those petitions on merits even at the pre-execution stage by entertaining the same. 6. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(bbb) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(bbb) of the Act. Except general statements, there is no adequate material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order. 6.1. Except general statements, there is no adequate material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order. 6.1. Further, The essential concept of the preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no comparison between the prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove on proof of his guilt and the standard is proof beyond the reasonable doubt whereas in the preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent. 7. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not over lap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 8. The Supreme Court on several occasions examined the concepts of "law and order" and "public Order". Immediately after the Constitution came into force, a Constitution Bench of the Supreme Court in the case of Brij Bhushan & Another v. The State of Delhi, (1950) SCR 605 dealt with a case pertaining to public order. The court observed that "public order" may well be paraphrased in the context as "public tranquility". Immediately after the Constitution came into force, a Constitution Bench of the Supreme Court in the case of Brij Bhushan & Another v. The State of Delhi, (1950) SCR 605 dealt with a case pertaining to public order. The court observed that "public order" may well be paraphrased in the context as "public tranquility". 8.1 Another celebrated Constitution Bench judgment of the Supreme Court is in the case of Romesh Thappar v. The State of Madras, (1950) SCR 594. In the case of Romesh Thappar, a printer, publisher and editor of weekly journal in English called Cross Roads printed and published in Bombay was detained under the Madras Maintenance of Public Order Act, 1949. The detention order was challenged directly in the Supreme Court of India by filing a writ petition under Article 32 of the Constitution. The allegation was that the detenu circulated documents to disturb the public tranquility and to create disturbance of public order and tranquility. The Supreme Court observed:- "... 'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established .... ... it must be taken that 'public safety' is used as a part of the wider concept of public order ..... " 9. The distinction between "public order" and "law and order" has been carefully defined in a Constitution Bench judgment of the Supreme Court in the case of Dr. Ram Manohar Lohia v. State of Bihar & Others, (1966) 1 SCR 709 . In this judgment, His Lordship Hidayatullah, J. by giving various illustrations clearly defined the "public order" and "law and order". Relevant portion of the judgment reads thus: "....Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State...." 10. In the case of Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T. N. and others, (2003) AIR SC 971, the Supreme Court made the following observations : "The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs. 1000/-. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. 1000/-. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of public order. Under the definitions in the Act it is stated that the case of 'Goonda' the acts prejudicial to public order are 'when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order'. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention." 11. The term "habitual" means continual acts. Here, in the present case, except two offences, there was no material before the detaining authority to record a satisfaction that the petitioner is a habitual or continuously involved in the offence. In this connection, it will be relevant to refer to one of the decision of the Division Bench of this Court in the case of State of Gujarat v. Abdul Rashid Abdul Gani Bukhari, (2014) LawSuit(Guj) 1651, wherein in para 8, the Court has observed as under :- "8. The use of phase 'habitually' connotes repeated or continual acts. Learned Single Judge has considered the word 'habitual' as very relevant and we also find that unless a person is found to be habitually committing or attempting to commit or abets in commission of the offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954, he cannot be said to be Cruel Person as defined in Section 2(bbb) of the Act. Therefore such definition itself is not attracted in the facts of the case. Therefore such definition itself is not attracted in the facts of the case. The detaining authority, therefore, could be said to have exceeded in its authority, power and jurisdiction in making the order of detention against the petitioner and if such being the case, power under Article 226 of the Constitution of India could very well be exercised against the order of detention at pre-execution stage." 11.1. Yet another decision of this Court rendered in Special Civil Application No. 15562 of 2013 dated 19.12.2013, the Court in para 5 to 8 has observed as under :- 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 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, (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. 6. Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of "cruel person" as given in Section 2(bbb) of the PASA Act which runs as under: "2(bbb) "cruel person" means a person, who either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom. LXXXII of 1954)". 7. It is clear from 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 habitual or repetitively involved in the offences. 8. 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, (1970) AIR 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. 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 public order comes within the scope of the Act." 11.2. Similarly in decision of this Court rendered in Special Civil Application No. 6001 of 2017 dated 26.04.2017, the Court in para 9, 10, 12 and 13 has observed as under :- 9. 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. 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 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 petitioner. 10. 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 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 non 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, (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. 12. 12. It appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order since the laws of the land are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of Section 2(bbb) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person. In view of the allegations alleged in the aforesaid F.I.R/s., the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of "law and order." 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, (1970) AIR 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. 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. 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." 13. Therefore, it cannot be said that for the aforesaid offence/s registered against the petitioner, the petitioner could be considered to be a "cruel person", whose preventive detention is must for maintenance of public order. So, the Court is of the considered opinion that the petitioner is not a "cruel person" and his act, as alleged in the detention order cannot disturb maintenance of public order and, therefore, the instant case would fall within 3rd and 4th grounds namely it is passed for wrong purpose or it is passed on vague, extraneous and irrelevant grounds mentioned in the case of Alka Gadia and, therefore, order of preventive detention at pre-execution stage calls for interference of this Court. As the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and deserves to be quashed and set aside." 11.3. Same view is reflecting in the decision rendered in Special Civil Application No, 6874 of 2016 dated 05.05.2016 and in Special Civil Application No. 10964 of 2017 dated 17.07.2018. 12. Thus, from the various decisions of the Apex Court and this Court referred to above, it could easily be said that the detaining authority has failed to substantiate that the alleged antisocial activities of the detenu affect adversely or are likely to affect adversely the maintenance of public order. It is true that there is a very thin line between the question of law and order situation and a public order situation, and some times, the acts of a person relating to law and order situation can turn into a question of public order situation. It is true that there is a very thin line between the question of law and order situation and a public order situation, and some times, the acts of a person relating to law and order situation can turn into a question of public order situation. What is decisive for determining the connection of ground of detention with the maintenance of public order, the object of detention, is not an intrinsic quality of the act but rather its latent potentiality. Therefore, for determining whether the ground of detention is relevant for the purposes of public order or not, merely an objective test based on the intrinsic quality of an act would not be a safe guide. The potentiality of the act has to be examined in the light of the surrounding circumstances, posterior and anterior. 13. Thus, in the overall view of the matter, I am convinced that the detention of the petitioner is not in accordance with law and the order of detention deserves to be quashed and set aside. 14. In view of above, I am inclined to allow this petition, because simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act. In view of the aforesaid circumstances, which are prevailing and the proposition of law laid down by the series of decisions as referred above, the petition is allowed. The respondent authority is directed not to execute the order of detention if passed against the petitioner. The detenue is ordered to be set at liberty forthwith if not required in any other case. 15. Rule is made absolute accordingly. Direct service is permitted.