[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO[CASE NUMBER] 9167 of 2018 FOR APPROVAL AND SIGNATURE: HONOURABLE MR[CASE NUMBER]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 ? [ENTITY] Appearance: MR [ENTITY] for the PETITIONER(s) [CASE NUMBER][CASE NUMBER] 1 [ENTITY], AGP for the RESPONDENT(s) [CASE NUMBER][CASE NUMBER] 2,3 RULE SERVED BY DS(65) for the RESPONDENT(s) [CASE NUMBER][CASE NUMBER] 1 CORAM: HONOURABLE MR[CASE NUMBER]JUSTICE [ENTITY] Date : 24/07/2018 ORAL JUDGMENT
1[CASE NUMBER] Heard learned advocates appearing for the respectiveparties[CASE NUMBER]
2[CASE NUMBER] The present petition is directed against order [CASE NUMBER] of detention dated 09[CASE NUMBER]05[CASE NUMBER]2018 passed by the respondent - detaining authority in exercise of powers conferred under [SECTION] of the [ACT]") by detaining the petitioner - detenueasdefinedundersection[SECTION]oftheAct[CASE NUMBER]
3[CASE NUMBER] Learned advocate for the detenue submits that the order of detention impugned in this petition deservestobequashedandsetasideonthegroundof registration of four offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] Section135(1)oftheGPActbyitselfcannotbring the case of the detenue within the purview of definitionunder[SECTION] oftheAct[CASE NUMBER] Further, learnedadvocateforthedetenuesubmitsthatillegal activitylikelytobecarriedoutorallegedtohave beencarriedout,asalleged,cannothaveanynexus orbearingwiththemaintenanceofpublicorderand atthemost,itcanbesaidtobebreachoflawand order[CASE NUMBER] Further, except statement of witnesses, registration of above FIR/s and [ENTITY] drawn in pursuanceoftheinvestigation,nootherrelevantand cogentmaterialisonrecordconnectingallegedanti socialactivityofthedetenuewithbreachofpublic order[CASE NUMBER] Learnedadvocateforthepetitionerfurther submitsthatitisnotpossibletoholdonthebasis ofthefactsofthepresentcasethatactivityofthe detenue with respect to the criminal cases had affectedeventempoofthesocietycausingthreatto the very existence of normal and routine life of [CASE NUMBER] people at large or that on the basis of criminal cases, the detenue had put the entire social apparatusindisorder,makingitdifficultforwhole systemtoexistasasystemgovernedbyruleoflaw bydisturbingpublicorder[CASE NUMBER]
4[CASE NUMBER] 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[CASE NUMBER] 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][CASE NUMBER] Unlessanduntil,thematerialis theretomakeoutacasethatthepersonhasbecomea threatandmenacetotheSocietysoastodisturbthe [CASE NUMBER] whole tempo of the society and that all social apparatusisinperildisturbingpublicorderatthe instanceofsuchperson,itcannotbesaidthatthe detenue is a person within the meaning of [SECTION][CASE NUMBER]Exceptgeneralstatements,thereis nomaterialonrecordwhichshowsthatthedetenueis acting in such a manner, which is dangerous to the publicorder[CASE NUMBER]
6[CASE NUMBER] Further,Theessentialconceptofthepreventive detentionisthatthedetentionofapersonisnotto punishhimforsomethinghehasdonebuttoprevent him from doing it[CASE NUMBER] The basis of detention is the satisfaction of the executive of a reasonable probabilityofthelikelihoodofthedetenuactingin amannersimilartohispastactsandpreventinghim by detention from doing the same[CASE NUMBER] A criminal conviction on the other hand is for an act already donewhichcanonlybepossiblebyatrialandlegal evidence[CASE NUMBER] There is no parallel between the prosecutioninaCourtoflawandadetentionorder undertheAct[CASE NUMBER]Oneisapunitiveactionandtheother isapreventiveact[CASE NUMBER]Inonecaseapersonispunished toproveonproof ofhisguiltandthestandardis proof beyond the reasonable doubt whereas in the preventive detention a man is prevented from doing somethingwhichitisnecessaryforreasonsmentioned insection3oftheActtoprevent[CASE NUMBER]
7[CASE NUMBER] The power of preventive detention is qualitativelydifferentfrompunitivedetention[CASE NUMBER]The [CASE NUMBER] power of preventive detention is a precautionary powerexercisedinreasonableanticipation[CASE NUMBER]Itmayor maynotrelate toanoffence[CASE NUMBER] Itisnotaparallel proceeding[CASE NUMBER] 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[CASE NUMBER] An order of preventive detention, may be madebeforeorduringprosecution[CASE NUMBER]An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal[CASE NUMBER] The pendency of prosecution is no bar to an order of preventive detention[CASE NUMBER]Anorderofpreventivedetentionisalso notabartoprosecution[CASE NUMBER]
8[CASE NUMBER] TheSupremeCourtonseveraloccasionsexamined theconceptsof"lawandorder"and"publicOrder"[CASE NUMBER] ImmediatelyaftertheConstitutioncameintoforce,a ConstitutionBenchoftheSupremeCourtinthecase of Brij Bhushan & Another v[CASE NUMBER] The State of Delhi, (1950)SCR605dealtwithacasepertainingtopublic order[CASE NUMBER] The court observed that "public order" may well be paraphrased in the context as "public tranquility"[CASE NUMBER]
8[CASE NUMBER]1 Another celebrated Constitution Bench judgment [PRECEDENT] [ENTITY], a printer, publisher and editor of weeklyjournalinEnglishcalledCrossRoadsprinted andpublishedinBombaywasdetainedundertheMadras [CASE NUMBER] [ACT] theConstitution[CASE NUMBER]Theallegationwasthatthedetenu circulated documents to disturb the public tranquilityandtocreatedisturbanceofpublicorder andtranquility[CASE NUMBER]
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[CASE NUMBER] Thedistinctionbetween"publicorder"and"law and order" has been carefully defined in a ConstitutionBenchjudgmentoftheSupremeCourtin thecaseofDr[CASE NUMBER][PRECEDENT][CASE NUMBER] In this judgment, His Lordship [ENTITY], J[CASE NUMBER] by giving various illustrationsclearlydefinedthe"publicorder"and "law and order"[CASE NUMBER] 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[CASE NUMBER]Publicorder if disturbed, must lead to public disorder[CASE NUMBER] Every breach of the peace does not lead to publicdisorder[CASE NUMBER][ENTITY] [CASE NUMBER] fight there is disorder but not public disorder[CASE NUMBER] They can be dealt with under the powerstomaintainlawandorderbutcannotbe detained on the ground that they were disturbing public order[CASE NUMBER] Suppose that the two fighters were of rival communities and one of them tried to raise communal passions[CASE NUMBER] The problem is still one of law and order but it raises the apprehension of public disorder[CASE NUMBER] Other examples can be imagined[CASE NUMBER] The contravention of law always affects order but before itcanbe saidto affect public order, it mustaffect thecommunity orthe public at large[CASE NUMBER] 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[CASE NUMBER] 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[CASE NUMBER]
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"[CASE NUMBER] One has to imagine three concentric circles[CASE NUMBER] Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State[CASE NUMBER] Itistheneasytoseethatanactmayaffect lawandorderbutnotpublicorderjustasan actmayaffectpublicorderbutnotsecurityof theState "
10[CASE NUMBER] In Darpan [ENTITY] Sharma alias Dharban [ENTITY] Sharmav[CASE NUMBER] StateofT[CASE NUMBER]N[CASE NUMBER]andothers,reportedinAIR 2003 SC 971, the Supreme Court made the following observations:
[CASE NUMBER] "The basis upon which the petitioner has been detained intheinstantcaseisthatherobbed one [ENTITY] at the point of knife a sum of Rs[CASE NUMBER]1000/[CASE NUMBER]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[CASE NUMBER] 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'[CASE NUMBER] 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[CASE NUMBER]"
11[CASE NUMBER] 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[CASE NUMBER] It is true that thereisaverythinlinebetweenthequestionoflaw andordersituationandapublicordersituation,and sometimes,theactsofapersonrelatingtolawand order situation can turn into a question of public ordersituation[CASE NUMBER]Whatisdecisivefordeterminingthe connection of ground of detention with the [CASE NUMBER] maintenanceofpublicorder,theobjectofdetention, isnotanintrinsicqualityoftheactbutratherits latent potentiality[CASE NUMBER] Therefore, for determining whetherthegroundofdetentionisrelevantforthe purposesofpublicorderornot,merelyanobjective testbasedontheintrinsicqualityofanactwould notbeasafeguide[CASE NUMBER]Thepotentialityoftheacthas to be examined in the light of the surrounding circumstances, posterior and anterior[CASE NUMBER] 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[CASE NUMBER] 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[CASE NUMBER]
12[CASE NUMBER] Thus, in the overall view of the matter, I am convincedthatthedetentionofthepetitionerisnot in accordance with law and the order of detention deservestobequashedandsetaside[CASE NUMBER]
13[CASE NUMBER] 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 [CASE NUMBER] section3(2)oftheAct[CASE NUMBER]Intheresult,thepresent petitionisherebyallowedandtheimpugnedorderof detention [CASE NUMBER][CASE NUMBER][CASE NUMBER]/[CASE NUMBER]/[CASE NUMBER] dated 09[CASE NUMBER]05[CASE NUMBER]2018 passed by the respondent - detaining authority is herebyquashedandsetaside[CASE NUMBER]Thedetenueisordered tobesetatlibertyforthwithifnotrequiredinany othercase[CASE NUMBER]
14[CASE NUMBER] Rule is made absolute accordingly[CASE NUMBER] Direct serviceispermitted[CASE NUMBER]
([ENTITY], J) [PRECEDENT]