JUDGMENT : (Samir J. Dave, J.) 1. Heard learned advocates appearing for the respective parties. 2. The present petition is directed against order of detention dated 21.10.2023 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. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of registration of the two offences under Sections 160, 323, 325, 367, 504, 506(2) and 114 the IPC by itself cannot bring the case of the detenue within the purview of definition under section 2(c) of the Act. Further, learned advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order. Further, except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. Learned advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order. 4. Learned advocate has raised the other grounds for quashment of detention order, but in view of a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [ AIR 1970 SC 852 ], even though the one ground is fake and the other grounds are not fake, the detention order has to be stroked out as not passed in accordance with law. 5. 5. Learned AGP 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(c) 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. 6. Having heard learned advocates for the parties and considering the facts and circumstances of the case, 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(c) 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(c) 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. 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.” 7. The Court has taken into consideration the fact that the petitioner has been enlarged by the Court of proper jurisdiction where the option of alternative remedy of cancellation of bail was available to the sponsoring authority, which the sponsoring authority has not resorted to and hence, as is held in recent decision of the Hon’ble Supreme Court in the case of Shaik Nazeen v/s. State of Telanga and Ors reported in (2023) 9 SCC 633 , the Hon’ble Supreme Court has made following observations in para 17:- “17. 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.” 8. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.” 8. 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 dated 21.10.2023 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. 9. The petitioner had filed a separate application at a later time praying for stay of the detention order, which was also taken up with final hearing of the present petition. During the course of arguments, it has come to the notice of the Court that the present petitioner has preferred Special Civil Application and not preferred Special Criminal Application, whereas the prayer inter-alia is for issuing Writ of Habeas Corpus. The prayer clause reads as under: “(A) Your Lordships may be pleased to admit and allow this petition; (B) Your Lordships may be pleased to pass any appropriate writ and/or writ of mandamus and/or writ of habeas corpus be issued and the order of detention date: 21/10/2023 passed by the respondent no.2 herein. The District Magistrate, Porbandar, Annexure-A may be set aside and the respondents be directed to set the detenue at liberty forthwith. (c) xxx … xxx … xxx.” 10. This Court is of the opinion that the writ of habeas corpus comes under the criminal jurisdiction. Examining such an issue, the Division Bench of this Court in the case of Haidarsha Abdulsha Pir Through His Son Nizamuddin Haidarsha PIR Vs. State of Gujarat passed in Letters Patent Appeal No.537 of 2020 in Special Civil Application No.9868 of 2020, observed as under: “39. We called for certain information in this regard from the concerned Branch of the Registry. It appears that an amendment was proposed to be made in Rule 2 of the Gujarat High Court Rules, 1993 so as to make the habeas corpus petitions triable by a learned Single Judge. We called for certain information in this regard from the concerned Branch of the Registry. It appears that an amendment was proposed to be made in Rule 2 of the Gujarat High Court Rules, 1993 so as to make the habeas corpus petitions triable by a learned Single Judge. It also appears that in view of the provisions of Rule 2 (10)(1) read with Rule 1, the Habeas Corpus Petitions filed under Article 226 of the Constitution of India were earlier being placed for hearing before a Division Bench. Under the Bombay High Court Appellate Side Rules, 1960, the Habeas Corpus Petitions were triable by a Division Bench. On the establishment of the High Court of Gujarat, it followed the Bombay High Court Appellate Side Rules, 1960 in this respect. Before the amendments in the Rules, Rule 2(10) (2) read as under; “Save as otherwise expressly provided by any law in force or by these rules, a Single Judge may dispose of the following matters; Applications under Articles 226 of the Constitution of India except:- Those for issue of writs of Habeas Corpus and also those for issue of appropriate directions, orders or writs in respect of orders of deportation.” 40. The Bombay High Court Appellate Side Rules, 1960 which were followed by our High Court till the Gujarat High Court Rules, 1993 came into force, read as under; “Provided however that applications for issue of Writs of Habeas Corpus and also those for issue of appropriate directions, orders or writs in respect of orders of externment and deportation shall be heard by a Division Bench.” 41. It appears that the matter was placed before the Full Court of the High Court to consider the feasibility of making suitable amendments in the relevant Rules so as to make the Habeas Corpus Petitions and other detention matters except the matter under the COFEPOSA triable by a Single Judge. In view of the decision taken in the Chamber Meeting, a Special Committee of three Hon'ble Judges was constituted to prepare the Draft Gujarat High Court Rules. The report of the Special Committee was placed before the Full Court in its Chamber Meeting and the same was approved by the Full Court in its Chamber Meeting dated 18th March, 1993. Ultimately, the following notification came to be issued dated 5th April 1995” NOTIFICATION BY THE HIGH COURT OF GUJARAT AT AHMEDABAD. The report of the Special Committee was placed before the Full Court in its Chamber Meeting and the same was approved by the Full Court in its Chamber Meeting dated 18th March, 1993. Ultimately, the following notification came to be issued dated 5th April 1995” NOTIFICATION BY THE HIGH COURT OF GUJARAT AT AHMEDABAD. (For insertion in the Gujarat Government Gazette, Part-IV C, Central Section) No.C-2002/93 The Honourable the Chief Justice and the Honourable Judges have been pleased to direct that the following amendments be made in the Gujarat High Court Rules, 1993, so as to come into force with effect from 10th April, 1995. (1) Substitute the following as Sub-clause (11) in Rule 2, Part- I, “CIVIL”:- (2) Add the following as Sub-clause 17 in Rule,2, Part-I (II Criminal):- “(17) Parol, furlough, jail petitions and Externment matters.” High Court of Gujarat Ahmedabad-380 009. Sd/- Date: April 5, 1995. Officer on Special Duty.” 42. Thus, it appears that from 1995 onwards, the preventive detention matters are treated as matters of civil jurisdiction and are being taken up by the Single Judge of the High Court. 43. We are of the view that the amendment, referred to above, needs to be re-looked as we would suggest that the preventive detention matters should be treated as the Habeas Corpus Petitions and a Habeas Corpus Petition, questioning the legality and validity of an order of preventive detention should be heard by a Division Bench of this Court and not by a Single Judge. 44. We may draw the attention of the High Court on its administrative side to a Division Bench decision of the Bombay High Court in the case of Shivshankarlal Gupta & Anr. vs. C.T.A Pillai & Ors., reported in AIR 1976 Bom. 165 . We may quote the relevant observations: “65. Considered from all points of view the interpretation suggested by the learned Counsel for the petitioners leads us to anomalous results. Considered from the point of view which we have accepted the Rules deal with a uniform and homogeneous procedure and make a Court available for every cause of action whether it arose. Whenever two interpretations are possible, one leading to anomalous result and the other to rational result, it need not be emphasised that the second must be accepted and the first must be rejected. Whenever two interpretations are possible, one leading to anomalous result and the other to rational result, it need not be emphasised that the second must be accepted and the first must be rejected. In our view, therefore, Rule 1 of Chapter XXVIII must be read with the amendment we have suggested above for the purpose of understanding the real meaning and the purpose of placing this Rule in Chapter XXVIII. It is, therefore, clear that all the applications where the writ of habeas corpus is being claimed must be presented under Chapter XXVIII of the Appellate Side Rules and before a Division Court taking criminal business of the Appellate Side. 66. We may incidentally add why this appeals to us as a better approach. Historically so far as this country is concerned ever since provisions for writs under habeas corpus were included in the Procedure Code, it is the Division Bench taking criminal business that has always dealt with these matters. We are at the moment considering the writs of detention where the procedure for enforcement of the detention order are mostly the procedures laid down by the Code of Criminal P. C. If a person against whom a detention order is passed is not available, the detention laws provide for approaching a Magistrate for the purpose of attachment and sale of property which are the processes of the Code of Criminal Procedure. It has been observed by the Supreme Court that even under the petitions for habeas corpus interim bail was possible and in appropriate cases bail was granted. It is entirely different that the amended laws now take away the right to grant or obtain bail. The procedure for the enforcement of the preventive detention appears to be essentially the procedure provided by the Code of Criminal Procedure. In addition we may indicate that the two laws dealing with preventive detention at present and under which we are receiving applications are either the Maintenance of Internal Security Act or Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. Both these laws are undoubtedly related to preventive detention but if the contents of both the laws are seen it would appear that they are mostly for preventing commission of an act which if committed would be criminal offences under some laws of this country. Both these laws are undoubtedly related to preventive detention but if the contents of both the laws are seen it would appear that they are mostly for preventing commission of an act which if committed would be criminal offences under some laws of this country. When we say that they mostly refer to act which might become offence if committed, we are not deciding whether the contents of the dispute are really civil or criminal in nature. 67. The main anxiety exhibited by Mr. Bhabha, learned Counsel appearing for the petitioners, was that unless it was decided whether the matter under the preventive detention laws is civil or criminal in nature, it would affect the right of appeal of the parties. Until the recent amendment of Article 133 which came into force on 22nd February, 1973, the provisions of Article 133(1)(c) or 134(1 (c) were identical in their language. We are referring to these clauses only because neither clause (a) nor (b) of sub-article (1) of Article 133 nor clause (a) or (b) of sub-article (1) of Article 134 would be attracted when applications for preventive detention are being considered. The language of that clause in both these articles say that an appeal shall lie to the Supreme Court if the High Court certifies that the case is a fit one for appeal to the Supreme Court. However, Art. 133 is now amended and a person gets a right to appeal from any judgment, decree or final order in a civil proceeding of the High Court, if the High Court certifies that the case involves substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the High Court. Some argument was addressed to us on behalf of the respondents that the provisions of Art. 134(1)(c) as compared to the present provision of Art. 133(1) (a) and (b) are more liberal. If we call the proceeding a criminal one, the petitioners have a better right of appeal than if the matter is called as civil. 68. We will, however, point out that to mark a particular matter as civil or criminal and to place it before a particular Bench for the purpose of hearing and disposal, is a matter of mere procedure and would not decide or affect the substantive right of appeal. 68. We will, however, point out that to mark a particular matter as civil or criminal and to place it before a particular Bench for the purpose of hearing and disposal, is a matter of mere procedure and would not decide or affect the substantive right of appeal. Several judgments were cited before us of which some are already referred to above where in spite of marking the matter as the criminal application arguments were raised that the dispute was essentially of a civil character and therefore either costs be awarded or certain type of leave be granted. Even in these petitions, and such others when the question of appeal arises, it will always be open to the parties to satisfy the Bench about the real nature of the dispute and obtain leave. 69. However, looking to the history of the exercise of habeas corpus jurisdiction by the High Court in this country we think that the Rule requiring such petitions to be filed before a Division Court taking criminal business of the Appellate Side is in consonance with the historical background as also with the historical background as also with the nature of processes that are associated with the enforcement of preventive laws. For these additional reasons we think it would be appropriate and not all unlawful that the present manner of presenting these applications before a Division Court taking criminal business of the Appellate Side is continued.” 45. We may also draw the attention of the High Court, on its administrative side, to a Full Bench decision of the Allahabad High Court in the case of Basudeva vs. Rex, reported in AIR 1949 All 513 . We quote the observations of his Lordship Justice Wanchoo: “11. It has been urged, on behalf of the applicant, that in case the decision is in his favour, he is entitled to costs. The argument is that habeas corpus applications fall under two categories. If the matter with which they are concerned is a civil one, they are civil proceedings, while if the matter with which they are concerned is connected with a crime or likely permission of a crime, they are criminal proceedings. The argument is that habeas corpus applications fall under two categories. If the matter with which they are concerned is a civil one, they are civil proceedings, while if the matter with which they are concerned is connected with a crime or likely permission of a crime, they are criminal proceedings. It is further urged that, in this case, the matter, namely, black-marketing is not connected with the commission of a crime or with the likely commission of a crime and, as such, these are civil proceedings in which costs should, normally, be awarded in view of Section 35, Civil P.C. This argument is met on behalf of the Provincial Government on the ground that proceedings under Section 491, Criminal P.C., are criminal proceedings and as no provision as to costs has been made in that section, there can be no question of awarding any costs to any party in such proceedings. 12. The distinction between a civil and criminal habeas corpus application has been drawn on the basis of certain authorities in England. It is sufficient for present purposes to refer to only one of them, namely, ex parte, Amand E. v. Home Secretary and Minister of Defence of Royal Netherlands Government 1943 A.C. 147. At p. 160, Lord Wright observed as follows: It is in reference to the nature of that proceeding that it must be determined whether there was an order made in a criminal cause or matter. That was the matter of substantive law. The writ of habeas corpus deals with the machinery of justice, and is essentially a procedural writ, the object of which is to enforce a legal right. The application for habeas corpus may or may not be in a criminal cause or matter. The distinction may be illustrated by two examples. If a father makes an application for a writ of habeas corpus and wants that his son, who is in the custody of his maternal-uncle, may be set at liberty, the matter is of a civil nature, On the other hand, if a person, who is under orders of extradition to a foreign country in connection with some offence which he is alleged to have committed there, applies for a writ of habeas corpus, the matter is obviously criminal. Habeas corpus writ in England was a common law writ of a procedural nature. Habeas corpus writ in England was a common law writ of a procedural nature. But the law in India on this subject is, in my opinion, somewhat different. There was, at one time, a controversy in this country whether the High Courts had the right to issue a common law writ of habeas corpus. That controversy has been set at rest by the decision of their Lordships of the Privy Council in Matthen and Ors. v. District Magistrate of Trivandrum A.I.R. (26) 1939 P.C. 213. Their Lordships agreed with the observations of the learned Chief Justice of the Madras High Court which were to this effect: The High Courts Act of 1861 authorised the legislature if it thought fit to take away the powers which this Court obtained as the successor of the Supreme Court, and Acts of the legislature lawfully passed in 1875 and subsequent years leave no doubt in my mind that the legislature has taken away the power to issue the prerogative writ of habeas corpus in matters contemplated by Section 491, Criminal P.C. of 1898. In India, therefore, one must start with the premise that the power of issuing writs of habeas corpus is conferred under the Criminal Procedure Code. Prima facie, the provisions of the Code of Criminal Procedure are for Courts of criminal jurisdiction, unless there is anything in the context to suggest that they apply to Courts of civil jurisdiction also.” 46. The attention is also drawn to the Supreme Court Rules, 2013 framed under Article 145 of the Constitution. Chapter- III thereof provides for the classification of cases. Clause 12 of Chapter-III reads thus: “12. Writ Petition – (i) petition under Article 32 of the Constitution relating to an infringement of a right in Part III of the Constitution in a civil case, other than habeas corpus, shall be registered as Writ Petition (Civil); (ii) petition under Article 32 of the Constitution relating to a criminal matter, including habeas corpus, shall be registered as Writ Petition (Criminal); (iii) petition under Article 32 of the Constitution of India relating to public interest litigation shall be registered as Writ Petition(PIL). It may be either civil or criminal; (iv) petition under Article 32 of the Constitution seeking transfer of a case relating to the State of Jammu and Kashmir and shall be registered as Writ Petition (Tr.). It may be either civil or criminal;” 11. It may be either civil or criminal; (iv) petition under Article 32 of the Constitution seeking transfer of a case relating to the State of Jammu and Kashmir and shall be registered as Writ Petition (Tr.). It may be either civil or criminal;” 11. After the direction given to the Registry of the Court, the Gujarat High Court has amended (on 23.04.2022) the Gujarat High Court Rules, 1993 as under: “2. Matters to be disposed of by a Single Judge:- I. Civil (10) Applications under Articles 225 of the Constitution of India except:— (1) xxx … xxx … xxx (2) those for issue of writs of Habeas Corpus [Preventive Detention Matters] and also those for issue of appropriate directions, order or writs in respect of orders of deportation. (11) [Matters pertaining to Preventive Detention Laws which is deleted on 23.04.2022]” Further, Rule 378 of the Gujarat High Court Rules, 1993 reads as under: “378. Presentation of application.— (i) An application by or on behalf of persons for order shall be presented in the Criminal Department of the office. The application shall set forth particulars in regard to the name and designation of the authority or persons passing the order of detention or the authority of person in whose custody the detenue is, full particulars as to the place of detention and the grounds upon which the relief is sought. The application shall be supported by an affidavit. The applicant or his advocate shall along with the application file a typed copy of the application with annexures for the use of the court. (ii) Where any interim relief is sought, a copy of the application shall be served on the Government Pleader, High Court before the presentation of the applications.” 12. The Division Bench of this Court has already held in its decision in Letters Patent Appeal No.537 of 2020 has clearly expressed that “the preventive detention matter should be treated as Habeas Corpus” (see Para No.43). This decision has to be followed in letter and spirit and therefore, petitions filed against the order of preventive detention necessarily be treated as a case filed for issuing writ of Habeas Corpus. This decision has to be followed in letter and spirit and therefore, petitions filed against the order of preventive detention necessarily be treated as a case filed for issuing writ of Habeas Corpus. In view of the aforesaid expression of opinion by this Court in above mentioned decision, the nomenclature for filing of writ petition against the preventive decision must be in consonance of such direction read with the provisions of the Gujarat High Court Rules. Adopting the reasoning given by the Division Bench in Letters Patent Appeal No.537 of 2020 in entirety, the Court is therefore of the view that the Writ petition against the preventive detention must be under the nomenclature of Special Criminal Application and not as Special Civil Application. 13. In view of the situation, this Court finds that Writ of Habeas Corpus or any preventive detention matter is to be considered as Special Criminal Application and it is to be invoked under criminal jurisdiction. 14. This Registry of this Court is directed to accept the memo of any preventive detention matters alongwith annexures as Special Criminal Application and not as Special Civil Application. It is hereby clarify that this direction is prospective in nature. To avoid the inconvenience both to the advocates and the Registry the direction contained herein be given effect to from 01.05.2024. Whatever the previous Special Civil Applications are filed and are pending in the department of Registry or the Court shall not be disturbed. The Registry is directed to implement this direction accordingly. 15. Rule is made absolute accordingly. Direct service is permitted.