[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 10795 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to NO see the judgment ? 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the NO judgment ? 4 Whether this case involves a substantial question of law NO as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Appearance: MR [ENTITY]) for the PETITIONER(s) No. 1 MS [ENTITY] for the RESPONDENT(s) No. 3 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 28/09/2018 ORAL JUDGMENT
1. Heard learned advocates appearing for the respectiveparties.
2. The present petition is directed against order [CASE NUMBER] ofdetentiondated28.6.2018passedbytherespondent
-detainingauthorityinexerciseofpowersconferred undersection3(2)oftheGujaratPreventionofAnti SocialActivitiesAct,1985(forshort"theAct")by detainingthepetitioner-detenueasdefinedunder section2(b)oftheAct.
2.1 Thecaseofthepetitioneristhatonaccount ofthecomplaintswhicharenarratedintheimpugned order, the petitioner has been detained vide order dated 28.06.2018. Therefore, considering the averments made in the petition, the Court on 10.09.2018 was pleased to admit the petition and thereafter it has come up for final hearing before this Court wherein learned advocate Mr.[ENTITY] has appeared for the petitioner and learned AGP, Ms.[ENTITY],hasrepresentedtherespondent-State.
3. Learned advocate for the detenue submits that the order of detention impugned in this petition deservestobequashedandsetasideonthegroundof registrationoftwooffencesunderSections65AEand 116oftheProhibitionActbyitselfcannotbringthe caseofthedetenuewithinthepurviewofdefinition under [SECTION] of the Act. Further, learned advocate for the detenue submits that illegal activitylikelytobecarriedoutorallegedtohave beencarriedout,asalleged,cannothaveanynexus orbearingwiththemaintenanceofpublicorderand atthemost,itcanbesaidtobebreachoflawand order. Further, except statement of witnesses, [CASE NUMBER] registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant andcogentmaterialisonrecordconnectingalleged antisocial 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 activityofthedetenuewithrespecttothecriminal caseshadaffectedeventempoofthesocietycausing threat to the very existence of normal and routine life of people at large or that on the basis of criminalcases,thedetenuehadputtheentiresocial apparatusindisorder,makingitdifficultforwhole systemtoexistasasystemgovernedbyruleoflaw bydisturbingpublicorder.
3.1 Learned advocate for the petitioner in support ofhiscasehasrelieduponadecisionofthisCourt rendered in [CASE NUMBER] beenmade.
4. Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was foundduringthecourseofinvestigation,whichwas alsosuppliedtothedetenueindicatethatdetenueis in habit of indulging into the activity as defined under [SECTION] of the Act and considering the facts of the case, the detaining authority has rightlypassedtheorderofdetentionanddetention orderdeservestobeupheldbythisCourt.
[CASE NUMBER]
5. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrivedatbythedetainingauthoritycannotbesaid to be legal, valid and in accordance with law, inasmuchastheoffencesallegedintheFIR/scannot haveanybaringonthepublicorderasrequiredunder theActandotherrelevantpenallawsaresufficient enough to take care of the situation and that the allegationsashavebeenlevelledagainstthedetenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of [SECTION] of the Act. Unless and until, the material is theretomakeoutacasethatthepersonhasbecomea threatandmenacetotheSocietysoastodistur2(c)b the whole tempo of the society and that all social apparatusisinperildisturbingpublicorderatthe instanceofsuchperson,itcannotbesaidthatthe detenue is a person within the meaning of [SECTION]oftheAct.Exceptgeneralstatements,thereis nomaterialonrecordwhichshowsthatthedetenueis acting in such a manner, which is dangerous to the publicorder.Further,consideringtheexaminationof therecordindicatesthatpetitionerisdetainedas 'Bootlegger' having two prohibition offences being registeredbutaccordingtolearnedadvocatethereis norecoveryordiscoverymadefromthepetitionerand inallcasesinvestigationisstillpending.Further, the petitioner, looking to the nature of such offences, can be curbed and taken care of under ordinary law. In almost similar situation the [CASE NUMBER] CoordinateBenchhasalsograntedreliefinfavourof concernedpetitionerandthereseemstobenobreach ofanypublicorder.Sointhecontextofaforesaid circumstances, various propositions which have been laid down would be attracted in the facts of the presentcase.
6. Further,Theessentialconceptofthepreventive detentionisthatthedetentionofapersonisnotto punishhimforsomethinghehasdonebuttoprevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probabilityofthelikelihoodofthedetenuactingin amannersimilartohispastactsandpreventinghim by detention from doing the same. A criminal conviction on the other hand is for an act already donewhichcanonlybepossiblebyatrialandlegal evidence. There is no parallel between the prosecutioninaCourtoflawandadetentionorder undertheAct.Oneisapunitiveactionandtheother isapreventiveact.Inonecaseapersonispunished toproveonproof ofhisguiltandthestandardis proof beyond the reasonable doubt whereas in the preventive detention a man is prevented from doing somethingwhichitisnecessaryforreasonsmentioned insection3oftheActtoprevent.
7. The power of preventive detention is qualitativelydifferentfrompunitivedetention.The power of preventive detention is a precautionary powerexercisedinreasonableanticipation.Itmayor [CASE NUMBER] maynotrelate toanoffence. Itisnotaparallel proceeding. It does not over lap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be madebeforeorduringprosecution.An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention.Anorderofpreventivedetentionisalso notabartoprosecution.
8. TheSupremeCourtonseveraloccasionsexamined theconceptsof"lawandorder"and"publicOrder". ImmediatelyaftertheConstitutioncameintoforce,a ConstitutionBenchoftheSupremeCourtinthecase of Brij Bhushan & Another v. The State of Delhi, (1950)SCR605dealtwithacasepertainingtopublic order. The court observed that "public order" may well be paraphrased in the context as "public tranquility".
8.1 Another celebrated Constitution Bench judgment [PRECEDENT] [ENTITY], a printer, publisher and editor of weeklyjournalinEnglishcalledCrossRoadsprinted andpublishedinBombaywasdetainedundertheMadras MaintenanceofPublicOrderAct,1949.Thedetention orderwaschallengeddirectlyintheSupremeCourtof [CASE NUMBER] IndiabyfilingawritpetitionunderArticle32of theConstitution.Theallegationwasthatthedetenu circulated documents to disturb the public tranquilityandtocreatedisturbanceofpublicorder andtranquility.
TheSupremeCourtobserved: " `Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members ofapoliticalsocietyasaresultofinternal regulations enforced by the Government which theyhaveestablished itmustbetaken that`publicsafety'isusedasapartofthe widerconceptofpublicorder "
9. Thedistinctionbetween"publicorder"and"law and order" has been carefully defined in a ConstitutionBenchjudgmentoftheSupremeCourtin thecaseofDr.[PRECEDENT]. In this judgment, His Lordship [ENTITY], J. by giving various illustrationsclearlydefinedthe"publicorder"and "law and order". Relevant portion of the judgment readsthus:
" Doestheexpression"publicorder"takein everykindofdisorderoronlysome?Theanswer to this serves to distinguish "public order"
from "law and order" because the latter undoubtedlytakesinallofthem.Publicorder if disturbed, must lead to public disorder. Every breach of the peace does not lead to publicdisorder.[ENTITY] fight there is disorder but not public disorder. They can be dealt with under the powerstomaintainlawandorderbutcannotbe [CASE NUMBER] 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 itcanbe saidto affect public order, it mustaffect thecommunity orthe public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the [ACT] but disturbances which subvert the public order are. A District Magistrate is entitledtotakeactionunderRule30(l)(b)to prevent subversion of public order but not in aid of maintenance of law and order under ordinarycircumstances.
Itwillthusappearthatjustas"publicorder"
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 disordersoflessgravitythanthoseaffecting "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. Itistheneasytoseethatanactmayaffect lawandorderbutnotpublicorderjustasan actmayaffectpublicorderbutnotsecurityof theState "
10. In [PRECEDENT], the Supreme Court made the following observations:
"The basis upon which the petitioner has been detained intheinstantcaseisthatherobbed one Kumar at the point of knife a sum of [CASE NUMBER] Rs.1000/.Anydisorderlybehaviourofaperson in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may alsoaffectlawandorderbutthesameneednot affect maintenance of public order. Under the definitions in the Act it is stated that the caseof'Goonda'theactsprejudicialtopublic order are 'when he is engaged, or is making preparations for engaging, in any of his ativities 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 lawandorderorhasactedinamannerlikely tocause disturbance ofthe public order isa questionofdegreeandtheextentofthereach of the act upon the society; that a solitary assaultononeindividualcanhardlybesaidto 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."
11. Thus,fromthevariousdecisionsoftheSupreme Courtreferredtoabove,itcouldeasilybesaidthat the detaining authority has failed to substantiate thattheallegedantisocialactivitiesofthedetenu affect adversely or are likely to affect adversely the maintenance of public order. It is true that thereisaverythinlinebetweenthequestionoflaw andordersituationandapublicordersituation,and sometimes,theactsofapersonrelatingtolawand order situation can turn into a question of public ordersituation.Whatisdecisivefordeterminingthe connection of ground of detention with the maintenanceofpublicorder,theobjectofdetention, isnotanintrinsicqualityoftheactbutratherits [CASE NUMBER] latent potentiality. Therefore, for determining whetherthegroundofdetentionisrelevantforthe purposesofpublicorderornot,merelyanobjective testbasedontheintrinsicqualityofanactwould notbeasafeguide.Thepotentialityoftheacthas to be examined in the light of the surrounding circumstances, posterior and anterior. Just because one case has been registered against the detenu of the offence under [SECTION] of the [ACT] the witnesses whose identity has not been disclosed,byitselfdonothaveanybearingonthe maintenance of the public order. The detenu may be punished for the offence which has been registered against him but, surely, the acts constituting the offence cannot be said to have affected the even tempoofthelifeofthecommunity.
12. Thus, in the overall view of the matter, I am convincedthatthedetentionofthepetitionerisnot in accordance with law and the order of detention deservestobequashedandsetaside.
13. In view of above, I am inclined to allow this petition, because simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenanceofpublicorderandtheauthoritycannot haverecourseundertheActandnootherrelevantand cogent material exists for invoking power under [SECTION].Intheresult,thepresent petitionisherebyallowedandtheimpugnedorderof [CASE NUMBER] detention No.DM/1/PASA/CASE/21/2018 dated 28.06.2018 passed by the respondent - detaining authority is herebyquashedandsetaside.Thedetenueisordered tobesetatlibertyforthwithifnotrequiredinany othercase.
14. Rule is made absolute accordingly. Direct serviceispermitted.
([ENTITY], J) [PRECEDENT]