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2020 DIGILAW 1001 (GUJ)

Shoban Sarfuddin Saiyad v. Commissioner Of Police

2020-12-23

ASHUTOSH J.SHASTRI

body2020
ORDER : This petition under Article 226 of the Constitution of India is filed by the petitioner apprehending the detention in respect of two offences which are lodged against him and as such, the petitioner having apprehended that he is likely to be detained under the provisions of Prevention of Anti Social Activities Act, 1985 has filed this petition. The said two offences which are narrated are as under: (I) C. R. No. I – 13 of 2019 registered with Vejalpur Police Station, Ahmedabad for the offence punishable under Sections 323, 324, 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. (II) C. R. No. I – 41 of 2019 registered with Kalupur Police Station, Ahmedabad for the offence punishable under Sections 324, 294(B), 114 of the Indian Penal Code and Section 135(1) of the Gujarat Police Act. 2. This petition is entertained by the Court by issuance of notice initially vide order dated 17.12.2019 and on 16.01.2020, the Court, after hearing the learned advocates of both the sides, passed following order : “1. By way of the present petition under Article 226 of the Constitution of India, the petitioner apprehends his detention under the provisions of Gujarat Prevention of Anti Social Activities Act, 1985 (for short, the PASA Act) on account of registration of F.I.R/s. as described in para 4 of the petition. 2. According to the petitioner, except registration of the aforementioned FIR/s, no other material is available with the competent authority to detain the petitioner under the provisions of the PASA Act. 3. Upon perusal of the F.I.R/s., it appears that the petitioner apprehends his detention on account of registration of two offences under Indian Penal Code and therefore, apprehension of the petitioner is well-founded and liberty of the petitioner is required to be protected. 4. Hence, Rule. Learned AGP waives service of rule on behalf of the respondent – State. 5. It is made clear that the petitioner is protected only in respect of the FIR/s as mentioned in the aforementioned para. The competent authority is at liberty to take suitable action against the petitioner in respect of offences, other than mentioned in the said para, if any, registered and incriminating materials found to detain the petitioner. The learned A.G.P. is directed to place on record the detention order, if any, passed against the petitioner for Court’s perusal. The competent authority is at liberty to take suitable action against the petitioner in respect of offences, other than mentioned in the said para, if any, registered and incriminating materials found to detain the petitioner. The learned A.G.P. is directed to place on record the detention order, if any, passed against the petitioner for Court’s perusal. Direct service is permitted.” 3. Since then, the petition is pending and is adjourned from time-to-time and came up for consideration on 12.10.2020. 4. Learned advocate Mr. Sadik Ansari appearing for the petitioner has submitted that this petition in the present form is maintainable and tenable on both the count of law as well as facts and can be entertained at pre-execution stage in view of decisions delivered by Hon'ble Apex Court in case of Deepak Bajaj vs. State of Maharashtra and anr. reported in (2008) 16 SCC 14 . According to learned advocate Mr. Ansari, Hon'ble Apex Court considered the earlier decision precisely in case of Additional Secretary to the Government of India and ors. vs. Smt. Alka Subhash Gadia and anr. reported in 1992 Supp.(1) SCC 496 in which, almost on an identical ground, it is propounded that “we are of the opinion that the five grounds mentioned therein on which the Court can setaside the detention order at pre execution stage are only illustrative not exhaustive.” Learned advocate for the petitioner has also relied upon the decision of the Division Bench of this Court in case of Mahendrasinh Mangalsinh Jadeja vs. State of Gujarat and other delivered in Letters Patent Appeal No. 1495 of 2013 on 24.12.2013. Lastly, he has submitted that it is an established law that the detention in case of offence registered against detenue under the Act, is against the law. In addition to this, according to learned advocate, there is no material to indicate that the alleged activity of the petitioner is affecting or likely to affect adversely to the maintenance of public order and as such, apparently, the action of detention is impermissible. Apart from that, learned advocate has submitted that mere filing of two FIRs would not brand the petitioner as dangerous person in any form and therefore, the action of detention is absolutely ill-founded and impermissible in law. Hence, learned advocate has requested to grant the relief as prayed for in the petition. 5. As against this, learned Assistant Government Pleader Mr. Hence, learned advocate has requested to grant the relief as prayed for in the petition. 5. As against this, learned Assistant Government Pleader Mr. Hardik Mehta appearing on behalf of the State Authority has submitted that this petition at pre-execution stage may not be entertained without the petitioner surrendering before the authority and it is only after the petitioner surrendering to the order of detention, then only, the petition be entertained at his instance. It has been submitted that pursuant to the order passed by this Court on 16.01.2020, the authority has passed an order of detention in exercise of power under Section 3 of the PASA Act in the public interest since the petitioner is in habit of committing an offence and threatening the public at large. Learned AGP has submitted that in view of decision delivered by the Division Bench of this Court in Letters Patent Appeal No. 108 of 2020, no doubt, the order of detention at pre-execution stage can be challenged, but only on five grounds mentioned in case of Alka Subhash Gadia (supra). The case of the petitioner is not falling under any of the grounds which are mentioned in the said decision. Learned AGP has tried to defend the order of detention on the ground that there is a subjective satisfaction reflected in the order of detention which is passed on 04.09.2019 and the said order has been placed on record for perusal of the Court. After referring to the contents of the said order of detention, it has been submitted that the petitioner is in a habit of committing an offence and is of such character who is likely to commit and continue to commit an offence and therefore, having satisfied with this conduct of the petitioner, an order of detention is passed. No other submissions have been made. 6. As counter to the submissions of learned AGP, learned advocate for the petitioner has submitted that there is no blanket proposition not to entertain the petition at pre-execution stage, particularly when the order of detention actually is passed by the authority and as such, learned advocate has submitted that in almost similar situation, recently, the coordinate bench of this Court has entertained such kind of petition and reference is made to few decisions, one of which is Special Civil Application No. 16686 of 2019 decided on 28.08.2020. Ultimately, learned advocate has requested to allow the petition. 7. Having heard learned advocates appearing for the respective parties and having gone through the material on record and the order which has been passed on 04.09.2019, a bare perusal of decision delivered by the coordinate bench of this Court has expressly considered the proposition of law laid down by the Division Bench of this Court in Letters Patent Appeal NO. 1497 of 2018 decided on 13.03.2019. Hence, in a situation like this, when the petitioner is arraigned in two offences of IPC to brand him as dangerous person is hardly possible to be concluded in this peculiar background of facts. Entire case law has been discussed with regard to such petition as to in which circumstance to be considered. During the pendency of this petition till it is decided, the court has come to two other decisions almost of similar nature. A reference be made to such decisions which are as under : (I) Special Civil Application No. 17321 of 2019 decided on 26.11.2020. (II) Special Civil Application No.17481 of 2019 decided on 10.12.2020. 8. The Court found that almost in a similar situation that the concerned petitioner invoked extraordinary jurisdiction at pre-execution stage without surrendering before the authority and challenged the order of detention and considering such situation, the coordinate bench by a detailed order not only has entertained the petition but has allowed the same. Since the court has considered such circumstance, relevant observations contained in the said decision deserve to be quoted hereunder : “6. 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. 7. 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 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 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. 8. 8. In light of the above mentioned decisions of the Hon'ble Apex Court and as discussed by the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja (supra) and Mukeshbhai Versibhai Desai (supra), now, it is right time to examine whether in the facts of this case, the Court should interfere with the preventive detention order at the pre-execution stage. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, produced for Court’s perusal, it appears that the offence/s, as aforesaid, has been registered against the petitioner. This fact has not been controverted by the detaining authority. It also appears that on the basis of the above offence/s, the detaining authority has come to the subjective satisfaction that the activities of the petitioner as "bootlegger" have disturbed the public order. The preventive detention order mentions that the petitioner is a "bootlegger". 9. 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 detenu within the meaning of Section 2(b) 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 [ 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. 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.” 9. In view of aforesaid observations which are made after considering the detailed case law on the subject, this Court is of the opinion that on perusal of the order of detention placed on record and contents of the complaints, a case is made out by the the petitioner to call for interference. 10. In addition thereto, yet another decision of coordinate bench dated 28.08.2020 in Special Civil Application No. 16686 of 2019 has also relied upon the Division Bench decision of this Court in case of Letters Patent Appeal No. 1497 of 2018 dated 13.03.2019. Few observations contained in paragraph 2 are relevant in which though there are five different offences registered, the Court on the basis of the said decision of the Division Bench was pleased to set aside the order of detention. Few observations contained in paragraph 2 are relevant in which though there are five different offences registered, the Court on the basis of the said decision of the Division Bench was pleased to set aside the order of detention. Here in the present case, the petitioner is arraigned in two offences and the perusal of the order of detention makes it clear that there is no subjective satisfaction before issuance of order of detention and further, it is not possible to accept the stand that the ordinary law would not prevent the petitioner from continuing his activity. Furthermore, looking to the definition of dangerous person and there is no likelihood of any breach of public order. On close perusal of order of detention, it is not sustainable in the eye of law. 11. Accordingly, in view of aforesaid observations and case law which has been projected before this Court, the petition deserves to be allowed and accordingly, the same is allowed and impugned order of detention dated 04.09.2019 is hereby quashed and set aside. Rule is made absolute. Direct service is permitted through email.