SCA/625820/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6258 of 2008 With SPECIAL CIVIL APPLICATION No. 6264 of 2008 With SPECIAL CIVIL APPLICATION No. 10514 of 2008 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAVED @ ALLARAKKHA NOOR-MOHAM-MED BELIM Versus COMMISSIONER OF POLICE & 2 - Respondent(s) ========================================================= Appearance : MR CHETAN B RAVAL for the Petitioner in SCA Nos.6258/08 & 6264/08 MR MT SAIYED for the Petitioner in SCA No. 10514/08 RULE SERVED BY DS for Respondent(s) : 1 - 2. MR SATYAM CHHAYA, AGP for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 26/09/2008 ORAL JUDGMENT 1. By these petitions under Article 226 of the Constitution of India, the petitioners Javed @ SCA/625820/2008 2/11 JUDGMENT Allarakkha Noor Mohammed Belim, aged 21 years, Makbulalam @ Bullu Mohammed Akhtar Shaikh, aged 21 years and Irshad @ Bhalak Kasambhai Pathan, aged 21 years respectively have challenged the separate orders of detention dated 12th March, 2008 passed against each of the petitioners by the Police Commissioner, Ahmedabad City in exercise of powers under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (the PASA Act). 2. All the petitioners have been detained on 12th March, 2008 and since then, are under detention. 3. Heard Mr. Chetan Raval, learned advocate for the petitioner and Mr. Satyam Chhaya, learned Assistant Government Pleader appearing on behalf of the respondent – State Authorities. 4. The learned advocate for the petitioners has submitted that the subjective satisfaction arrived at by the detaining authority while passing the impugned order is not based on any material on record, inasmuch as there is no material on record to point out as to how the activities of the petitioners are prejudicial to the maintenance of public health and public order. 5. On the other hand, Mr. Chhaya, learned Assistant Government Pleader appearing for the State authorities has vehemently opposed the petitions. It SCA/625820/2008 3/11 JUDGMENT is submitted that the petitioners are admittedly carrying on activities of stealing cows and bulls and slaughtering them for the purpose of selling the beef. Referring to the statements made by the accused, which form part of the compilation, it is pointed out that the petitioners as well as the co- accused have all admitted that they regularly indulge in such activities. It is submitted that in the circumstances, the activities of the petitioners fall within the definition of “cruel person” as defined under section 2(bbb) of the PASA Act. It is submitted that the very fact that mute animals are killed would affect the religious sentiments of the people, and therefore, it can be presumed that the activities of the petitioners are prejudicial to the maintenance of public health and public order. It is further submitted that the petitioners are carrying on the activities of slaughtering without any licence and as such their activities also would be prejudicial to the maintenance of public health. It is accordingly submitted that the order passed by the detaining authority is just, legal and proper and that the detaining authority has upon perusal of the material on record, arrived at the subjective satisfaction that the activities of the petitioners are prejudicial to the maintenance of public health and public order and that therefore, this Hon’ble Court would not substitute its opinion for the subjective satisfaction of the detaining authority. It is accordingly submitted that the petitions being devoid of any merit are required to be rejected. SCA/625820/2008 4/11 JUDGMENT 6. A perusal of the impugned orders dated 12th March, 2008 shows that the same are identically worded. The petitioners are youths aged about 21 years and a solitary offence has been registered against them on 2nd March, 2008 under the provisions of the Indian Penal Code, the Bombay Animal Preservation Act, 1954, the Prevention of Cruelty to Animals Act as well as the Bombay Provincial Municipal Corporation Act. 7. In the impugned order dated 12th March, 2008, the detaining authority has recorded that the petitioners possess criminal and cruel minds and always keep lethal weapons in their possession. That the petitioners along with their accomplices steal cows and bulls from the Vatva area and bring them to an abandoned building in the open field opposite Prem Conductors, and slaughter them for the purpose of economic gain and thereby affect the religious sentiments of people, which has a prejudicial effect on the maintenance of public order. Thereafter, the detaining authority has referred to the solitary offence registered against the petitioners under the provisions of sections 379 and 114 of the Indian Penal Code and sections 3 and 7 of the Bombay Animal Preservation Act, section 11-D of the Prevention of Cruelty to Animals Act and section 335 and 336 of the Bombay Provincial Municipal Corporation Act. The detaining authority in the next paragraph has recorded the details of the various documents SCA/625820/2008 5/11 JUDGMENT supplied with the order of detention namely first information report, various statements of the petitioners and the concerned Police Officers who had raided the premises and has thereafter stated that the anti social activities of the petitioners would amount to an act which would affect the sentiments of the people and thereby, were likely to affect the maintenance of public order. That the anti social activities of the petitioners are prejudicial to the maintenance of public order which is borne out from a perusal of the documentary evidence on the record. 8. In the next paragraph, the detaining authority has recorded that on the basis of the documentary evidence referred to in the preceding paragraph, he is satisfied that the petitioners possess criminal minds, and are cruel persons. That as they are carrying on the above-referred anti social activities, which are prejudicial to public order they are creating obstacles to the maintenance of public order. That the petitioners for the purpose of illegally slaughtering animals, steal bulls of the cows variety, take them to abandoned places and slaughter them and thus, are running an illegal slaughter house and as such are cruel persons within the meaning of section 2(bbb) of the PASA Act, namely that they are persons who slaughter mute animals. That they are known as cruel persons within their residential locality. 9. In the next paragraph, the detaining authority SCA/625820/2008 6/11 JUDGMENT has recorded that it is not possible to immediately prevent the petitioners from carrying their unlawful activities by taking action for externing them under the provisions of the Bombay Police Act. In the penultimate paragraph, the detaining authority has recorded that upon carefully examining the aforesaid facts, he is fully satisfied that the petitioners are cruel persons. That as noted hereinabove, their criminal and anti social activities prejudicially affect the maintenance of public order. That it is necessary to prevent them from carrying on such activities immediately. That they have been enlarged on bail in connection with the said criminal offence and that they are likely to continue carrying on such criminal activities. Hence, it is possible that their activities would be prejudicial to the maintenance of public order and therefore, as a last resort, it is ordered that they be detained under the provisions of the PASA Act. 10. In response to the issuance of Rule in the matter, the detaining authority has filed an affidavit-in-reply in Special Civil Application No.6264 of 2008, wherein he has more or less reiterated what is stated in the order of detention. 11. Having regard to the contents of the order of detention as well as the documents supplied therewith, there is no material on record to show as to how the activities of the petitioners are in any manner prejudicial to the maintenance of public SCA/625820/2008 7/11 JUDGMENT order, as recorded by the detaining authority. Except for the fact that the detaining authority has found that the petitioners are carrying on illegal activities of stealing and slaughtering mute animals and therefore, fall within the definition of cruel persons as defined under section 2(bbb) of the PASA Act, there is no other material on record to point out as to how the said activities carried out by the petitioners are prejudicial to the maintenance of public order. No instance is cited to show that in view of the activities of the petitioners, the public order has in any manner been disturbed. The reasoning adopted by the detaining authority is that per se the petitioners being a cruel person, the activities of the petitioners in slaughtering animals illegally would amount to an activity which is prejudicial to the maintenance of public order. 12. It is settled legal position as held by the Supreme Court in the case of Piyush Kantilal Mehta v. Commissioner of Police, Ahmedabad City and another, 1989 Supp (1) SCC 322 that in order that an activity may be said to affect adversely the maintenance of public order, there must be material to show that there has been a feeling of insecurity among the general public. If an act of a person creates panic or fear in the minds of the members of the public upsetting the even tempo of life of the community, such act must be said to have a direct bearing on the question of maintenance of public order. The commission of an offence will not necessarily come SCA/625820/2008 8/11 JUDGMENT within the purview of ‘public order’. On the facts of the said case the petitioner therein was detained on the ground that he was a bootlegger and that some incidents of beating by the petitioner had taken place, as alleged by witnesses. According to the Supreme Court the said incidents did not have any bearing on the maintenance of public order. It was further held that: “The petitioner may be punished for the alleged offences committed by him but, surely, such acts constituting the offences cannot be said to have affected the even tempo of life of the community. It may be that the petitioner is a bootlegger within the meaning of Section 2(b) of the Act, but merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless, as laid down in sub-section (4) of section 3 of the Act, his activities as bootlegger affect or are likely to affect adversely the maintenance of public order. We have carefully considered the offences alleged against the petitioner in the order of detention and also the allegations made by the witnesses and, in our opinion, these offences or the allegations cannot be said to have created any feeling of insecurity or panic or terror among the members of the public of the area in question giving rise to the question of SCA/625820/2008 9/11 JUDGMENT maintenance of public order. The order of detention cannot, therefore, be upheld.” 13. A Division Bench of this Court vide judgment and order dated 22nd August, 2000 rendered in the case of Ashokbhai Balabhai Makwana v. State of Gujarat, Letters Patent Appeal No.223 of 2000, after considering the decision of the Supreme Court in the case of Kanuji S. Zala v. State of Gujarat, 1999 (2) GLH 415 held that a bald observation that the activities of the petitioner were an obstacle to public health and public order cannot be taken to be decisive so as to arrive at the satisfaction that the activities of the petitioner were prejudicial to the public order or public health and that tempo of public life was disturbed. The Court further held that the litmus test to find out whether it is a case of breach of public order or breach of public health is that credible material has to be there. In the facts of the said case, apart from the allegation that the petitioner was a bootlegger based on some registered cases, there were some unregistered cases and statements of anonymous witnesses against the petitioner therein. The Court held thus: “Thus, the only material which remains is the registered criminal cases and that by itself cannot be said to be a material for the purpose of holding that the appellant's activities had become a threat to the public order and public health. Necessary material in this regard is totally SCA/625820/2008 10/11 JUDGMENT wanting in the body of the detention order itself. In large number of cases, the Supreme Court has considered that involvement in bootlegging activities even if coupled with violence does not amount to threat to public order or public health. The mere mention of allegations unless they are supported by any material cannot be said to be material germane for the purpose of arriving at the satisfaction with regard to breach of public order or public health.” 14. However, on a perusal of the entire record, there is no material whatsoever to even indicate that the activities of the petitioners have in any manner affected the maintenance of public order. In fact even the impugned order of detention except for recording that the activities of the petitioners amount to have activities which are prejudicial to public order, does not indicate any other material or reason for coming to the said conclusion. In the circumstances, the subjective satisfaction arrived at by the detaining authority for the purpose of coming to the conclusion that the activities of the petitioners are prejudicial to the maintenance of public order being based on no material, stands vitiated. As such, the impugned order of detention cannot be sustained. 15. For the foregoing reasons, the petitions succeed and are accordingly allowed. The impugned orders of SCA/625820/2008 11/11 JUDGMENT detention dated 12th March, 2008 passed by the Police Commissioner, Ahmedabad City in exercise of powers under sub section (2) of section 3 of the Gujarat Prevention of Anti Social Activities Act are hereby quashed and set aside. The detenus - Javed @ Allarakkha Noor Mohammed Belim, Makbulalam @ Bullu Mohammed Akhtar Shaikh and Irshad @ Bhalak Kasambhai Pathan are hereby ordered to be set at liberty forthwith, if not required to be detained for any other purposes. Rule is made absolute in each of the petitions with costs. (HARSHA DEVANI, J.) shekhar/-