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2020 DIGILAW 519 (GUJ)

Yusuf S/o Usman Kureshi v. State of Gujarat

2020-06-09

BHARGAV D.KARIA

body2020
ORDER : 1. Heard learned advocate Mr. Kishan Daiya for the petitioner and learned Assistant Government Pleader Mr. K.M. Antani for the respondent State through video conferencing. 2. Rule. Learned Assistant Government Pleader, Mr.K.M. Antani waives service of Notice of Rule on behalf of respondent State. 3. By this petition under Article 226 of the Constitution of India has challenged the order of detention dated 25th January 2020 passed by the respondent No.2-the Police Commissioner, Surat under Sub-section 2 of Section 3 of the Prevention of the Antisocial Activities Act, 1985 (for short “PASA”) on the ground that the impugned order is violative of Articles 21 and 22 of the Constitution of India. 4. Learned advocate, Mr.Kishan Dahiya, appearing for the petitioner-detenue has invited my attention to the order of detention dated 25/01/2020, by which, the detenue was arrested and sent to Central Jail at Rajkot. The ground of detaining the accused is that one offence was registered against the petitioner as Second Part Cr. No.1035 of 2019 before the Rander police station at Surat under the provisions of Section 279 of the Indian Penal Code and sections 3 and 11 of the Prevention of Cruelty to Animals Act, 1960 and sections 5(1)(A) (B),6(A) and 10 of the Gujarat Animals Preservation Act, 2011 and sections 192, 184, 177 and 3 of the MV Act. He is, therefore, a “cruel person” as defined under Section 2(bbb) of the PASA Act. 5. Learned advocate appearing for the petitioner has 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 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 the consequential order are vitiated. 6. Learned Assistant Government Pleader Mr. The definition of “cruel person” requires habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated. 6. Learned Assistant Government Pleader Mr. Antani for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(bbb) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court. 7. 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 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)”. 8. 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 offence. 9. Under the circumstances, the subjective satisfaction that the petitioner is a “cruel person” on the basis of which he has been detained, is vitiated. 10. 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 offence. 9. Under the circumstances, the subjective satisfaction that the petitioner is a “cruel person” on the basis of which he has been detained, is vitiated. 10. 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 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 material on record which shows that the detenue is acting in such a manner, which is dangerous to the public 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. 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. 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. 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. 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. " 12 In Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and others, reported in AIR 2003 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 on e 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. 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'. 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.” 13. In Siddharth @ SindhuLaxmanbhaiThorat v/s. District Magistrate, Navsari, in Letters Patent Appeal No.1020 of 2019 dated 08.05.2019, this Court has made following observations: “8. Having regard to the facts and circumstances of the case, We find that though there are powers available under section 3(1) of the Act, ordinary law of Indian Penal Code under which FIRs are registered in four offences for which punishment is prescribed in the Indian Penal Code, is sufficient and order of detention cannot be passed as a shortcut to exhaust such remedy. Ordinarily, this Court will be loath in interfering with subjective satisfaction of the detaining authority. While arriving at subjective satisfaction, the detaining authority is supposed to undertake objective assessment of the material available. In this connection, we may refer to the judgment of this Court in Letters Patent Appeal No.2732 of 2010, dated 28.3.2011 in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others, wherein, this Court has quoted the observations made by Apex Court in the case of Pushker Mukherjee vs. State of West Bengal, reported in AIR 1970 SC 852 , wherein distinction is drawn between public order and law and order. The Supreme Court observed in the said judgment as under: “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 Supreme Court observed in the said judgment as under: “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. We may further refer to the judgment of the Apex Court in the case of Arun Ghosh v/s State of West Bengal (1970) 1 SCC 98 ,wherein, the Apex Court has observed as under: “... Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. ” 10. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. ” 10. In another case of the Apex Court in the case of Ram ManoharLohia v/s State of Bihar & others (1966) 1 SCR 709 , wherein, the Apex Court has observed as under: “...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. 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 or 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.” 11. In the above judgments, the Apex Court distinguished the public order and law and order and advisability of invoking drastic remedy of preventive detention against citizens. 12. Under the circumstances, in view of the judgment of this Court in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others and considering the totality of circumstances, in our opinion, the detaining authority has failed to substantiate that the alleged antisocial activities of the appellant detenue adversely affect or are likely to affect adversely the maintenance of public order. The order of detention, therefore, cannot be sustained and deserves to be quashed and set aside.” 14. The order of detention, therefore, cannot be sustained and deserves to be quashed and set aside.” 14. In the result, the present petition is hereby allowed and the impugned order of detention No. PCB/PASA/DTN/42/2020 dated 25.01.2020 passed by the respondent detaining authority is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case. 15. Rule is made absolute accordingly. The Registry is directed to communicate this order to the concerned jail authority by fax or email.