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2020 DIGILAW 664 (GUJ)

Sarfrajali Yakubali Saiyad v. State of Gujarat

2020-08-04

A.G.URAIZEE

body2020
JUDGMENT : 1. The present petition is directed against order of datention dated 22.04.2020 in DCPOL/PASA/DTN/SR/04/2020 passed by respondent No.2 detaining authority in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner – detenue as defined under Section 2(c) of the Act. The petitioner is detained Since 11.04.2020 2. Heard Mr. Jitendrakumar S. Kotai, learned advocate for the petitioner and Ms. Jyoti Bhatt, learned AGP for the respondent. 3. Mr. Kotai, learned advocate for the petitioner vehemently submits that the impugned order of detention deserved to be quashed and set aside on the ground that the petitioner is detained under PASA on the basis of registration of offence under the provision of Indian Penal Code & Disaster Management Act. It is his submission that mere registration of FIR in respect of offence under Disaster Management Act would not bring the petitioner within the purview of “dangerous person” as defined under Section 2(c) of PASA Act. He submits that the FIR was registered against the petitioner on account of breach of lockdown imposed by the Government to curb spread of COVID-19 pandemic. He further submitted that the alleged breach of lockdown do not have any nexus or bearing with the maintenance of public order. According to his submission the alleged breach of lockdown by the petitioner can be said to be breach of law and order. He would also submit that the alleged activity of the petitioner can be said to have affected the even tempo of society and thereby prejudicial to maintenance public order, and therefore also the detention of the petitioner under the PASA is bad in law. 4. Ms. Bhatt, learned AGP has supported the impugned detention order. She submits to indicate that the activity of the petitioner was prejudicial to the breach of law and order which affected even tempo of the society. She, therefore, submits that the detaining authority has rightly detained the petitioner under PASA being ahead strong person as under Section 2(c) of the Act. 5. The constitution of bench of Supreme Court has an occasion to consider the distinction between “public order” and “law and order” in the case of Dr. She, therefore, submits that the detaining authority has rightly detained the petitioner under PASA being ahead strong person as under Section 2(c) of the Act. 5. The constitution of bench of Supreme Court has an occasion to consider the distinction between “public order” and “law and order” in the case of Dr. Ram Manohar Lohiya v. State of Bihar and another, (1996) 1 SC 709 wherein it is held 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 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. 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.…" 6. The Supreme Court in the case of Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.N. and other, AIR 2003 SC 971 has observed as under: “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. 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.” 7. It is an undisputed fact that the petitioner is detained under PASA as a dangerous person as defined under Section 2(c) on the basis of criminal case registered against it for commission for offence under Disaster Management Act. In this case, the petitioner is released on bail by the competent Court. Moreover, the detention order itself reveals that the petitioner is detained under PASA on the basis of solitary FIR registered against him. It is an undisputed fact that the petitioner has no criminal antecedents. In this case, the petitioner is released on bail by the competent Court. Moreover, the detention order itself reveals that the petitioner is detained under PASA on the basis of solitary FIR registered against him. It is an undisputed fact that the petitioner has no criminal antecedents. In my considered view the breach of lockdown would not bring a person within the sweep of section 2(c) of the Act to dub him as a dangerous person. 8. The petitioner, who has been detained under PASA as dangerous person on the basis of FIR registered against him can at most said to be disorderely behaviour on his part and to some extent the peace prevailing in the locality and it may also affect law and order but surely it cannot be said that such an activity of the petitioner would affect maintenance of public order. The order of detention, therefore, cannot be sustained and deserves to be quashed and set aside. 9. For the foregoing reasons, the petition succeeds and is hereby allowed. The impugned order of detention dated 22.04.2020 in DCPOL/PASA/DTN/SR/04/2020 passed by respondent No.2 is hereby quashed and set aside. The petitioner is order to be set at liberty forthwith if not required in any other case. 10. Rule is made absolute. The registry is directed to communicate this order to the respondent authorities by Email/ Fax forthwith.