[ENTITY] S/O BHIMSINH RAJPUT Petitioner(s)V/S[ENTITY] C/SCA/11179/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11179 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE [ENTITY] Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the [ACT] of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
[ENTITY] S/O BHIMSINH RAJPUT Petitioner(s) Versus [ENTITY] &
2 Respondent(s) Appearance:
MS [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MS [ENTITY], ASST.GOVERNMENT PLEADER for the Respondent(s) No. 1 , 3 RULE CORAM:
HONOURABLE MR.JUSTICE [ENTITY] Date : 11/09/2013 [ENTITY] Heard learned counsel for the parties.
This petition is directed against the order of detention dated 30.4.2013 passed by respondent no.2, in exercise of powers conferred under [SECTION] of the [ACT] [for short the Act ] by detaining the detenu as a dangerous person as defined under [SECTION] of the Act.
Learned advocate for the detenu submits that the order of detention impugned in this petition deserves to be quashed and set aside and the ground that the registration of two offences by itself cannot bring the case of the detenu within the purview of definition of dangerous person under [SECTION] of the Act. Learned counsel for the detenu further submits that the illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenu with breach of the public order.
Learned counsel for the detenu, placing reliance on the decisions reported in the cases of [i] [PRECEDENT], [ii] [PRECEDENT]; and [iii] [PRECEDENT], submitted that the case on hand is squarely covered by the ratio laid down in the aforesaid decisions. Learned counsel for the detenu further submits that it is not possible to hold in the facts of the present case that the activities of the detenu with reference to the criminal case/s had affected even tempo of the society, posing a threat to the very existence of the normal and routine life of the people at large or that on the basis of the criminal case/s, the detenu had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by the rule of law by disturbing the public order.
Learned AGP for the respondent State supported the detention order passed by the authority and submitted that the detenu is a dangerous person and sufficient material and evidence was found during the course of investigation, which was also supplied to the detenu, indicating that the detenu is in habit of indulging into activities as defined under [SECTION] of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court.
Having heard the learned counsel 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 FIRs cannot have any bearing on the public order since the law of the land i.e. [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 detenu cannot be said to be germane for the purpose of bringing the detenu as a dangerous person within the meaning of [SECTION] of the Act and, unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenu is a dangerous person within the meaning of [SECTION] of the Act. Except general statement, there is no material on record which shows that the detenu is acting in such a manner which is dangerous to the public order. In view of the ratio laid down by the Hon ble Supreme Court in the cases of [i] [PRECEDENT] (supra), [ii] [PRECEDENT] (supra) and [iii] [PRECEDENT] (supra), the Court is of the opinion that the activities of the detenu cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of law and order .
In view of the above, I am inclined to allow this petition because simplicitor registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority can take recourse under the [ACT] and no other relevant or cogent material exists for invoking powers under [SECTION] of the Act.
Though it is argued that petitioner has been caught red-handed at the the time of incident, the scrutiny of compilation of relevant papers of chargesheet in both the FIRs makes it clear that there is no sufficient or cogent evidence so as to prove that petitioner is a habitual offender. Even in FIRs where petitioner was said to be caught red-handed, practically, it was the statement by the complainant and some witnesses that they got the petitioner but, ultimately, before police reached at the place, he was able to run away. Therefore, it cannot be said that petitioner was caught red-handed while committing an offence. It is also argued that petitioner is only of 18 years and keeping him in detention for a long period may otherwise make him a real criminal.
If we peruse the citations, it becomes clear that even the Hon ble Supreme Court has considered that detention is not permitted even in the case of robbery and theft. The present is the case of [SECTION], [SECTION] and [SECTION] of the [ACT]. Therefore, the Court has no option but to allow the petition.
Any such observation with reference to any pending trial for any FIR in question is solely for the limited purpose to consider the validity of detention which shall not be treated as any finding or determination on facts. Therefore, competent Court shall not be prejudiced by such observation while dealing with the petitioner in original trial.
In the result, the petition is allowed. The order of detention dated 30.4.2013 passed by the respondent no.2 is quashed and set aside. The detenu is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service permitted.
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