IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2649 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PANKAJKUMAR BALKESHWARPRASAD PANDEY Versus COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2649 of 2005 MS DR KACHHAVAH for Petitioner MR KAMLESH KACHHAVAH for Petitioner MR IM PANDYA, AGP for RespondentS -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 04/04/2005 ORAL JUDGEMENT 1. This Special Civil Application under Article 226 of the Constitution of India has been filed by the petitioner challenging his detention in pursuance of the order passed against him by Police Commissioner, Ahmedabad City, on 5th January, 2005, in exercise of powers conferred upon him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (PASA Act for short). The petitioner is under detention as dangerous person from 5th January, 2005 in pursuance of the above order. 2. The grounds of detention as placed on record reveal that the detaining authority took into consideration two types of materials to arrive at subjective satisfaction. Firstly the fact of filing of three criminal cases against the petitioner for the offence of theft of two wheeler vehicles and secondly two incamera statements of the witnesses, whose identity is not disclosed by the detaining authority, claiming privilege under Section 9(2) of the PASA Act. 3. Out of three crimes registered against the petitioner, first crime was registered before Ellisbridge Police Station on 24th September, 2004 for the offences punishable under Sections 379 and 114 of the Indian Penal Code. It was alleged that the petitioner was involved in theft of one hero-honda motor cycle. The remaining two crimes were registered against the petitioner before Navrangpura Police Station on 2nd November, 2004 and on 2nd December, 2004, for the offences punishable under Section 379 and 114 of the Indian Penal Code. In each of these cases, it was alleged that the petitioner was found involving in theft of two wheeler vehicles. The detaining authority thoroughly and exhaustively examined the investigation papers in all three cases and came to the conclusion that the petitioner was habitual committing offence of theft of vehicles. Incamera statements relied upon by the detaining authority both were recorded on 3rd January, 2005 by the sponsoring authority and verified by the detaining authority on 4th January, 2005. The first witness referred to an incident occurred on 7th November, 2004. At about 5.00 P.M., the witness was near Swastik Cross Road at Amraiwadi and was approached by the petitioner and one of the accomplice, the witness told that he was aware of the illegal activities committed by the petitioner and was providing information to the police. The witness refused the allegation made against him. Thereupon, the petitioner was excited and started beating the witness at public place. To save himself, the witness raised shouts for help which attracted a crowd, on noticing the crowd being assembled, the petitioner took out the knife and threatened the witness to kill. Thereafter, the petitioner and his accomplices rushed towards the crowd with open knives, so the people started running helter-skelter and public order was disturbed. The second witness referred to an incident occurred on 11.12.2004. At about 1.00 in the noon, the witness was present at his place of business and was approached by the petitioner and his accomplices on one hero-honda motor cycle. The witness was told that the petitioner is intended to go out of the town and was in need of some money. He proposed to keep the said vehicle on pledged and to lend Rs.20,000-00 to the petitioner. The witness knew that the motor cycle might be stolen and, therefore, he refused to keep the said motor cycle. Thereupon, the petitioner was excited and started beating the petitioner after dragging him in a public place. On raising shouts for help by the witness, a crowd was gathered but on noticing this, the petitioner took out a knife and threatened the witness to kill. The petitioner and his accomplices rushed towards the crowd with open knives so the crowd was disbursed and public order was disturbed. 4. From the above material, the detaining authority came to the conclusion that the petitioner was engaged in illegal activities of committing offence of two wheeler vehicles and was a habitual offender. The detaining authority also concluded that the petitioner was a dangerous person within the meaning of PASA Act. The detaining authority reached to the conclusion that the petitioner was headstrong, ferocious person and was keeping deadly weapons with him. The detaining authority also concluded that in executing his illegal activities, the petitioner was picking up quarrels with innocent citizens and to beat them. The detaining authority concluded that on account of the activities of the petitioner, fear and terror was spread amongst the locality and nobody dared to file any complaint against the petitioner. The detaining authority reached to the subjective satisfaction that the dangerous activities of the petitioner were prejudicial to the maintenance of public order and required to be prevented forthwith. After considering other alternative measures available against the petitioner under the general law, the detaining authority concluded that there was no other alternative, except to detain the petitioner under the PASA Act as dangerous person to prevent his illegal activities forthwith. The detaining authority, therefore, passed an order of detention of the petitioner as aforesaid, which is under challenged in this petition. 5. Learned advocate Mr.Kamlesh Kachhavah for the petitioner and the learned AGP Mr.I.M.Pandya for the respondents were heard at length. The affidavit-in-reply filed by the detaining authority as placed on record was also taken into consideration. 6. Out of various grounds urged on behalf of the petitioner to challenge the order of detention as opposed and controverted by the learned AGP, it appears that this petition can be examined and disposed of on the sole issue that whether there was credible and cogent materials placed before the detaining authority to come to the conclusion that by the activities of the petitioner, the public order was disturbed. 7. To reach to the subjective satisfaction that the dangerous activities of the petitioner were prejudicial to the maintenance of public order, the detaining authority must rely upon cogent and credible material indicating that the activities of the detenu directly or indirectly were causing or were likely to cause any harm, danger or widespread or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life property or the public health. While undertaking this exercise, the detaining authority must apply his mind about the difference between the cases falling in the category of "breach of law and order" and the cases falling in the category of "breach of public order." 8. True that as many as three cases came to be registered against the petitioner for theft of two wheeler vehicles. It was also alleged that in these cases, vehicles alleged to be stolen were recovered during investigation. The detaining authority took into consideration the investigation papers in all these three cases. Therefore, the prime issue for consideration is, the activities revealed through the investigating papers in all three cases can be branded to be activities disturbing the public order as noted above. Undoubtedly, these three cases came to be filed against the petitioner for theft of two wheeler vehicles. These cases are pending for disposal according to law. The activities disclose through the investigating papers in these three cases may be an offence being the activities against penal statute of country, but it could not at all be said that the activities of the petitioner reveal through the investigating papers formed an offence under the penal law are the activities disturbing the public order to the extent that widespread danger to life and property could be inferred. At the most filing of these cases being offences may be labelled as breach of law and order for which the petitioner is going to be tried and may be punished, if found guilty. But as aforesaid, the act constituting the offence cannot be said to have affected the even tempo of life of community, therefore, filing of the cases may be three in numbers against the petitioner, have no bearing at all on the question of maintenance of public order. 9. The rest of the material, which relied upon by the detaining authority is in the form of two incamera statements. While any activity is to be judged within the scope, as to whether such activities disturbed the public order, it becomes the duty of the detaining authority to consider fall out, reach and impact of the activities, revealing through materials placed before him and then come to the conclusion that whether potentiality of the activities alleged was capable of disturbing the public order. On going through minutely and carefully and applying the above said principle of law, it clearly appears that two incidents narrated through incamera statements were more individual disputes then to involve the society at large or disturbing the even tempo of life of the community. Employing phrases by the witnesses like disruption of traffic and normal life and spreading of fear and terror, or employing such prashes by the detaining authority in the reasons, could not stretch the alleged activities to the extent of such activities disturbing the public order. While such activities are scanned through its fall out, reach and impact, it is clear that these are not the activities disturbing the public order. Therefore, the potentiality of the act alleged through incamera statements, even from the bare reading of them, do not disclose capability to disturb the even tempo of life of the community or society at large or section of the society. It is clear that from the said activity, neither widespread danger to the society nor dangerousness or harmfulness affecting the society could be inferred from such activities of the petitioner disclosing through incamera statements. Therefore, even after taking two incamera statements on there face value they are unable to convince that the activities disclosed by the statements were prejudicial to the maintenance of public order. At the most the acts disclosed through the statements, may be breach of law and order and could be taken care by the general law. 10. In the matter of Ashokbhai Jivraj @ Jivabhai Solanki Vs. Police Commissioner, Surat & Ors., reported in 2000 (1) G.L.H. 393, wherein after considering many decisions of the Apex Court, the Division Bench of this Court has observed in paragraphs No.20 and 21 as under. "20. The Division Bench then considered the law laid down by the Apex Court in Piyush Kantilal v. Commissioner of Police, Ahmedabad City, AIR 1989 SC 491 and T. Devaki v. State of Tamil Nadu, AIR 1990 SC 1086. In Piyush Kantilal, similar circumstances were before the detaining authority and it was alleged that detention of the detenu was necessary in order to prevent activities of the detenu in maintenance of public order. Similarly, in T. Devaki, panic amongst people in the hall in which the incident took place and in nearby vicinity was high lighted. It was also alleged that people were scared and had run helter skelter. In spite of such allegations the Supreme Court held that they were not cases of maintenance of public order and hence, an action of preventive detention was uncalled for. 21. The Division Bench, following the above cases, observed that in the opinion of the Supreme Court, the selective phrases in the statements would not take out the case from maintenance of law and order to that of maintenance of public order and as power of detention could not be used for maintenance of law and order, but only for public order, the order of detention made in such circumstances could not be upheld. Again, in Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, Commissioner of Police and others, 1995 (2) GLR 1268 (SC), the Supreme Court considered the relevant decisions on point including the decision in Arun Ghosh v. State of West Bengal, 1979 (1) SCC 98 and held that stray incidents would not affect "public order" and order of detention cannot be passed in such cases." 11. The present set of facts are squarely covered by the above said decision of this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki [supra]. In this view of the matter, the subjective satisfaction arrived at by the detaining authority in respect of disturbance of public order by the alleged activities of the petitioner, cannot be said to be legal, valid and in accordance with law. The order under challenge, therefore, is required to be quashed and set aside on this ground alone. 12. In the result, the petition is allowed. The order passed by the Police Commissioner, Ahmedabad City on 05.01.2005, against the petitioner in exercise of powers under Section 3(1) of the PASA Act is hereby quashed and set aside. The detenu PANKAJKUMAR BALKESHWARPRASAD PANDEY is hereby ordered to be set at liberty forthwith if he is not required to be detained in jail for any other purpose. Rule is made absolute. Direct service is permitted. [J. R. VORA,J.] (vijay)