[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12290 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [PRECEDENT] Appearance: O I PATHAN(7684) for the PETITIONER(s) No. 1 MR [ENTITY], AGP for the RESPONDENT(s) No. 3 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2 CORAM: HONOURABLE MR.JUSTICE [ENTITY] Date : 24/08/2018 ORAL JUDGMENT
1. Heard learned advocates appearing for the respectiveparties.
2. The present petition is directed against order [CASE NUMBER] ofdetentiondated1.6.2018passedbytherespondent
-detainingauthorityinexerciseofpowersconferred undersection3(2)oftheGujaratPreventionofAnti SocialActivitiesAct,1985(forshort"theAct")by detainingthepetitioner-detenueasdefinedunder section[SECTION]oftheAct.
3. Learned advocate for the detenue submits that the order of detention impugned in this petition deservestobequashedandsetasideonthegroundof registrationofsix offences [SECTION] the case of the detenue within the purview of definitionunder[SECTION] oftheAct. Further, learnedadvocateforthedetenuesubmitsthatillegal activitylikelytobecarriedoutorallegedtohave beencarriedout,asalleged,cannothaveanynexus orbearingwiththemaintenanceofpublicorderand atthemost,itcanbesaidtobebreachoflawand order. Further, except statement of witnesses, registration of above FIR/s and [ENTITY] drawn in pursuanceoftheinvestigation,nootherrelevantand cogentmaterialisonrecordconnectingallegedanti socialactivityofthedetenuewithbreachofpublic order. Learnedadvocateforthepetitionerfurther submitsthatitisnotpossibletoholdonthebasis ofthefactsofthepresentcasethatactivityofthe detenue with respect to the criminal cases had affectedeventempoofthesocietycausingthreatto 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 [CASE NUMBER] apparatusindisorder,makingitdifficultforwhole systemtoexistasasystemgovernedbyruleoflaw bydisturbingpublicorder.
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.
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] Unlessanduntil,thematerialis theretomakeoutacasethatthepersonhasbecomea threatandmenacetotheSocietysoastodisturbthe whole tempo of the society and that all social apparatusisinperildisturbingpublicorderatthe [CASE NUMBER] instanceofsuchperson,itcannotbesaidthatthe detenue is a person within the meaning of [SECTION]Exceptgeneralstatements,thereis nomaterialonrecordwhichshowsthatthedetenueis acting in such a manner, which is dangerous to the publicorder.
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 toproveonproofofhisguiltandthestandard is 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 [CASE NUMBER] powerexercisedinreasonableanticipation.Itmayor maynotrelatetoanoffence.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 [CASE NUMBER] orderwaschallengeddirectlyintheSupremeCourtof 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 [CASE NUMBER]. They can be dealt with under the powerstomaintainlawandorderbutcannotbe 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 itcan besaid toaffect public order, itmust affect the community orthepublic 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 Darpan [ENTITY] Sharma alias Dharban [ENTITY] Sharmav. StateofT.N.andothers,reportedinAIR 2003 SC 971, the Supreme Court made the following observations:
"The basis upon which the petitioner has been [CASE NUMBER] detained intheinstantcaseisthatherobbed one [ENTITY] at the point of knife a sum of 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 tocausedisturbance ofthepublic orderisa 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, [CASE NUMBER] isnotanintrinsicqualityoftheactbutratherits 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 [CASE NUMBER] petitionisherebyallowedandtheimpugnedorderof detention No.[CASE NUMBER] dated 1.6.2018 passed by the respondent - detaining authority is herebyquashedandsetaside.Thedetenueisordered tobesetatlibertyforthwithifnotrequiredinany othercase.
14. Rule is made absolute accordingly. Direct serviceispermitted.
([ENTITY], J) [ENTITY]