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2024 DIGILAW 402 (GUJ)

Kishanbhai Dhanabhai Rathod v. State Of Gujarat

2024-02-28

A.Y.KOGJE, SAMIR J.DAVE

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JUDGMENT : A.Y. KOGJE, J. 1. This petition under Article 226 of the Constitution of India is inter alia filed for following prayer:- “(B) This Hon’ble Court may kindly be pleased to allow this Special Civil Application by issuing a writ of mandamus or any other appropriate, writ, order or direction and be pleased to quash and set aside the order of detention passed by Respondent No.2 dated 20.09.2023 under the PASA Act, (At Annexure-A).” 2. The present petition is directed against order of detention dated 20.09.2023 passed by the respondent–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. Under the order of detention dated 20.09.2023 passed by the Commissioner of Police, City Ahmedabad by which the petitioner has been detained as a ‘dangerous person’ based on three IPC offenses registered with different Police Station. 3. Learned advocate for the petitioner submitted that the petitioner has challenged the order of detention on the ground that there is a delay of approximately two months in passing the order of detention from the date he was enlarged on bail and therefore, such delay not being explained in the order of detention or by ray of an affidavit will be fatal to the detention order. Learned advocate submitted that the petitioner has been enlarged on regular bail by the Court of competent jurisdiction and the detaining authority before passing the order of detention has not resorted to a lesser drastic remedy nor has he referred in the grounds of detention the reason why the only option available was that of passing the order of detention. Lastly, learned advocate submitted that the nature of offences are not such which can amount to disturbance in public order as the complaint in which the petitioner is arraigned as an accused is arising out of a private dispute between the neighbors. 4. As against this, learned Assistant Government Pleader has objected to the grant of the petition by submitting that as the petitioner has been arraigned as an accused in three IPC offenses falling within Chapter 16 and 17 of the IPC, the definition of the dangerous person is correctly applied to the petitioner and therefore, order of detention is justified. 4. As against this, learned Assistant Government Pleader has objected to the grant of the petition by submitting that as the petitioner has been arraigned as an accused in three IPC offenses falling within Chapter 16 and 17 of the IPC, the definition of the dangerous person is correctly applied to the petitioner and therefore, order of detention is justified. 4.1 He has also submitted that previously also, the petitioner was detained as a dangerous person in the year 2022 and after detention period, the petitioner has once again indulged in the similar type of offense. 5. In rejoinder, learned advocate for the petitioner submitted that the previous order of detention was challenged before this Court and this Court had quashed and set aside such detention order. Moreover, with regard to the previous order, the detaining authority has not taken into consideration the fact that this Court had quashed the detention order and therefore, such material would be rendered irrelevant for the purpose of present detention order. 6. Heard learned advocates for the parties and perused the documents placed on record. The petitioner by the impugned order has been detained as a dangerous person under order dated 20.09.2023 by the Commissioner of Police, City Ahmedabad. 7. The grounds of detention would indicate that the detaining authority has relied upon the following three offences registered at various police stations within the jurisdiction of Ahmedabad Commissionarate, details of which are as under:- Sr. No Police Stand and C.R.Number Sections Date of Arrest/ Date of Bail 1. Kagdapith Police Station C.R.No.11191025220987/ 22 Dated 27.10.2022 323, 324 and 114 of the IPC and under Section 135(1) of the GP Act 14.11.2022 15.11.2022 2. Paldi Police Station C.R.No.11191016230026/ 23 Dated: 08.02.2023 379 and 114 of the IPC 24.02.2023 3. Kagdapith Police Station C.R.No.11191025230645/ 23 Dated 08.06.2023 392, 397 and 114 of the IPC and under Section 135(1) of the GP Act 08.06.2023 04.07.2023 8. The Court has taken into consideration the gist of the offenses registered against the petitioner and referred to in the grounds of detention and in which it appears that the offense has taken place on account of an incident between two neighbours and out of the dispute between two neighbours, the assault has taken place which was thereafter, registered as an offense. 8.1 Therefore, in the opinion of the Court, the offense for which the petitioner has been arraigned cannot be said to be the offense which as affected the even tempo of life, thereby causing breach of public order. The Court may rely upon the decision of the Apex Court in case of Pushker Mukherjee v/s. State of West Bengal, reported in, [ AIR 1970 SC 852 ], in which the Apex Court has clearly defined the word ‘public order’ to mean as the activity which would disturb the even tempo of life. 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. The Court has taken into consideration an aspect of delay, where the petitioner in connection with third offense registered at Kagdapith Police Station was enlarged on regular bail on 04.07.2023 and thereafter, on 20.09.2023 the petitioner was detained and therefore, there is a delay of two months in passing the order of detention, which according to the petitioner would be fatal. In this regard, the petitioner has relied upon the decision of this Court in case of Umang Bhuprendrabhai Patel v/s. State of Gujarat in Special Civil Application No.13541 of 2023 dated 11.09.2023 by drawing attention of this Court to para-9 of the aforesaid order. 10. The Court has also taken into consideration the fact that the detaining authority has not resorted to the lesser drastic remedy available for canceling the bail which has been granted to the petitioner in connection with the very three offenses relied upon by the detaining authority. There is no mention with regard to the fact that the detaining authority had given its thoughtful consideration to the cancellation of bail aspect and having satisfied itself that canceling of bail may not sufficient ground to prevent the petitioner from indulging into antisocial activity that the order is passed. In absence of any such resonings in the grounds of detention, the subjective satisfaction of order of detention would stand vitiated 11. In view of above, we are 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. 12. In the result, the present petition is hereby allowed and the impugned order of detention dated 20.09.2023 being No.PCB/DTN/PASA/511/2023 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. 13. Rule is made absolute accordingly. Direct service is permitted.