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2024 DIGILAW 617 (GUJ)

Asif Valibhai Kherani Sumara v. State Of Gujarat

2024-03-21

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 filed with prayers as under: “(A) YOUR LORDSHIPS be pleased to issue appropriate writ, direction or order of this Hon'ble High Court, quashing and setting aside the detention order dated 28.09.2023 at Annexure ‘A’, to’ the petition placing the petitioner under preventive detention, in purported exercise of their powers under the Gujarat Prevention of Anti-Social Activities Act, 1985, as being illegal, null and void and further be pleased to released the petitioner forthwith; (B) YOUR LORDSHIPS be pleased to release the petitioner from his detention pending the admission, hearing and final disposal of this petition.’” 2. The present petition is directed against order of detention dated 28-09-2023 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. 3. Essentially challenge is made to the order of detention dated 28- 09-2023, where the petitioner has been detained as ‘Dangerous person’ on the grounds of seven F.I.R. registered against him with Gandhigram Police Station by the Detaining Authority namely the Police Commissioner, Rajkot City. 3.1 Learned advocate for the petitioner has submitted that the petitioner has been arraigned as an accused in seven offences of chain snatching only on the basis of his own admission in the Police Statement. It is submitted that from the case papers annexed along with grounds of detention, there is no sufficient evidence to connect the petitioner with the offence and therefore, subjective satisfaction of the petitioner undertaking anti-social activities to disturb the public order stands vitiated. 3.2 Learned advocate for the petitioner has submitted that the petitioner has been enlarged on regular bail by the Court of competent jurisdiction, yet the Detaining Authority or the Sponsoring Authority have not considered lessor drastic remedy available. 3.3 In this connection, learned Advocate for the petitioner has referred to and relied upon the decision of the Apex Court in the case of Shaik Nazeen v/s. State of Telanga and Ors. 3.3 In this connection, learned Advocate for the petitioner has referred to and relied upon the decision of the Apex Court in the case of Shaik Nazeen v/s. State of Telanga and Ors. reported in 2023 (9) SCC 633 and drawing attention of this Court to the facts of the case before the Apex Court, which indicates that the detenue therein was also similarly involved in offences of gold chain snatching and was involved in as many as 36 gold chain snatching offences. Despite this, the Apex Court has proceeded to allow the petition of the detenue and setting him free on the ground that the Detaining Authority therein had sufficient alternative steps available to them to curtail the activities of the detenue therein. Learned Advocate has therefore, particularly drawn attention of this Court to Para-16, 17 and 19 of the aforesaid judgment. 4. As against this, learned AGP for the respondent State has objected to the petition on the ground that the petitioner is involved in seven offences of chain snatching and that offences would fall within Chapter- XVI and XVII of the IPC covered under definition of ‘Dangerous Person’ as contemplated in definition under the provisions of PASA Act. Moreover, the petitioner has been chargesheeted in each of the offences, where the Detaining Authority has found sufficient evidence to connect the petitioner with each of the offence and arrived at conclusion that the case of the petitioner would fall in the category of ‘Dangerous Person’ being habitual offender in similar offences. 5. Having heard learned advocates for the parties and having perused documents on record, it appears that the petitioner has been detained as ‘Dangerous Person’ by the order of detention dated 28.09.2023 by the Detaining Authority namely Police Commissioner, Rajkot City and along with the order of detention, grounds of detention is reflected that the Detaining Authority has relied upon seven offences of similar nature. 5.1 From the perusal of the grounds of detention, it appears that the offences are pertaining to chain snatching at various point of time and the same have been registered with Gandhigram Police Station, Rajkot City. 5.1 From the perusal of the grounds of detention, it appears that the offences are pertaining to chain snatching at various point of time and the same have been registered with Gandhigram Police Station, Rajkot City. 5.2 The Court would consider the narration made in the detention order, wherein at one stage, the Detaining Authority has recorded that offences committed by the petitioner are confirmed by the petitioner himself and has admitted to the offence in the statement recorded by the concerned Police. 5.3 Index of the documents along with the grounds of detention will also consist of statement thus recorded of the petitioner admitting to the offence. This documents is of-course in addition to the statements of the witnesses including the victim recording during the course of investigation and therefore, submission of learned Advocate with regard to the detention order based on admission of the offences, cannot be accepted. Not only that, the order of detention refers to seven offences and only in case of seventh offence, Reference is made to the statement admitting the offence made by the petitioner is referred to. Otherwise in the other offences, the Detaining Authority has relied upon other evidences in the form of statement of victim, witnesses as well as formal witnesses like the Police witnesses. 5.4 However, the Court has accepted stand of the petitioner, when he refers to the decision of the Apex Court in the case of Shaik Nazeen (supra), the Apex Court has held in Para-16 to 19 as under:- “16. Having heard the learned counsel for the petitioner and learned counsel for the State of Telangana, we are of the considered view that in the present case invocation of the Preventive Detention Law against the petitioner was not justified. The powers to be exercised under the Preventive Detention Law are exceptional powers which have been given to the Government for its exercise in an exceptional situation as it strikes hard on the freedom and liberty of an individual, and thus cannot be exercised in a routine manner. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions. 17. In the case of Ram Manohar Lohia Vs. State of Bihar, it has been held as under: 54. The distinction between law and order situation and a public order situation has been dealt with by the Supreme Court in a catena of decisions. 17. In the case of Ram Manohar Lohia Vs. State of Bihar, it has been held as under: 54. “We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? 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 if 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(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 55. A District Magistrate is entitled to take action under Rule 30(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. 55. 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. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.” 18. In two recent decisions, this Court had set aside the detention orders which were passed, under the same Act, i.e., the present Telangana Act, primarily relying upon the decision in Dr. Ram Manohar Lohia case (supra) and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation. 19. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.” 5.5 In the facts of the present case also, though the petitioner is involved in seven offences, the Court of competent jurisdiction has enlarged the petitioner on regular bail and thereafter, though the Sponsoring Authority is the same, no efforts have been made for filing application for cancellation of bail of the petitioner for his indulging continuously in such offences. 5.6 The grounds of detention only indicates that the Detaining Authority has expressed his view that as the petitioner is enlarged on bail, he is likely to commit similar offence thereby disturb the public order. 5.6 The grounds of detention only indicates that the Detaining Authority has expressed his view that as the petitioner is enlarged on bail, he is likely to commit similar offence thereby disturb the public order. However, there is no application of mind to the fact that whether the Detaining Authority had first instance undertaken exercise or applied its mind to resort to cancellation of bail before passing the order of detention. In absence of this, subjective satisfaction of the Detaining Authority that the petitioner being on bail would continue to commit the offence would stand vitiated. 6. 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. In the result, the present petition is hereby allowed and the impugned order of detention No.PCB/DTN/PASA/44/2023 dated 28-09-2023 passed by the respondent – detaining authority is hereby quashed and set aside. The petitioner is ordered to be set at liberty forthwith if not required in any other case. 7. Rule is made absolute accordingly. Direct service is permitted.