SCA/1086520/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10865 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ========================================================= 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 ? ========================================================= MOHMAD RAFIK IBRAHIMBHAI KASAMBHAI BHARUCHI - Petitioner(s) Versus COMMISSIONER OF POLICE AHMEDABAD & 2 - Respondent(s) ========================================================= Appearance : MR MAULIN G PANDYA for Petitioner(s) : 1, MR MAULIK NANAVATI ASST. RULE SERVED BY DS for Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 21/11/2008 ORAL JUDGMENT 1.0 By way of this petition, the detenu has challenged the order of detention dated 15.04.2008 passed by Police Commissioner, Ahmedabad in exercise of powers conferred upon SCA/1086520/2008 2/7 JUDGMENT him under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 ("PASA Act" for short). 2.0 Learned Advocate for the detenu has invited my attention to the order of detention dated 15.04.2008 by which detenu was arrested and sent to Jamnagar Jail as well as to the grounds supplied therein. As the grounds of detention, one criminal case is shown as registered against the detenu which pertains to 'Animal Act'. In connection with the said offence, it was alleged that the detenu illegally slaughtered cows. On the basis of the aforesaid solitary registered offence, the order of detention came to be passed by the Authority against the detenu. 2.1 Learned Advocate has further submitted that in the order of detention it was stated that the detenu is carrying on anti-social activities and on the basis of aforesaid registered offence, the detaining authority came to the conclusion that the detenu is a habitual offender and of SCA/1086520/2008 3/7 JUDGMENT 'cruel mind', and hence, he falls within the definition of Section 2(bbb) of the P.A.S.A. Act and since his activities are prejudicial to the maintenance of 'public order' and 'public health' the order of detention has been passed against him. 2.2 Learned Advocate for the detenu has raised various grounds. He has submitted that the order under question is required to be quashed on the ground of delay caused in passing the order of detention. It was contended that, in connection with the very same offence, the detenu was released on bail by the trial Court on 08.04.2008 whereas the order of detention came to be passed on 15.04.2008 i.e. after a delay of about eight days. It was also contended that on the basis of only one offence it cannot be said that the activity of the detenu has become detrimental to the maintenance of 'public order'. 3.0 On the other hand, learned A.G.P. for respondents has supported the order of detention SCA/1086520/2008 4/7 JUDGMENT as well as grounds stated therein. However, learned A.G.P. is not in a position to dispute the aspect of delay caused in passing the order of detention. 4.0 Heard, learned Advocate for the detenu and learned AGP on behalf of respondents and having considered rival contentions fully and going through the record and the grounds of detention, it is necessary to observe that in the matter of detention the prime consideration is 'prevention' and not the 'punishment'. Keeping this very object in mind whenever preventive action is proposed to be taken, the authority concerned must arrive at subjective satisfaction from the material on record objectively. Hence, there must be cogent material before the detaining authority indicating tendency of repeating prejudicial behaviour of the detenu to the society. 4.1 In the present case, the detenu is branded as cruel person within the meaning of SCA/1086520/2008 5/7 JUDGMENT Section 2(bbb), of the P.A.S.A. Act. Hence, it would be relevant to refer to Section 2 of the Amending Act No.16 of 1985 of P.A.S.A. Act which reads as under:- "2(bbb). Cruel person" means a person, who either by himself or as member or leader of a gang habitually commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom.LXXII of 1954)" 4.2 From the bare reading of the provisions of the definition of "cruel person", it becomes clear that the legislature intended such behaviours to be branded as behaviour of a cruel person when such person either by himself or as member or leader of a gang habitually commits or attempts to commit or attempts an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. 4.3 In the case on hand, there is no material on record to show that the detenu falls within the definition of cruel person as provided under Section 2(bbb) of the Act. In the present case, SCA/1086520/2008 6/7 JUDGMENT the detaining authority relied upon only one aspect in scrutinizing the behaviour of the detenu i.e. the filing of aforesaid criminal case against the detenu for the breach of the provisions of Bombay Animal Preservation Act, 1954 which could hardly be said to be a material exhibiting 'habitual' tendency of the detenu to commit such offences. On going through the documents produced on record it transpires that it is nowhere emanated that the detenu was habitual offender within the meaning of Section 2(bbb) of the P.A.S.A. Act. 4.4 In above view of the matter, I am of the opinion that the subjective satisfaction arrived at by the detaining authority is vitiated. Even otherwise, in view of the absence of any satisfactory explanation on the part of the detaining authority, for the delay caused in passing the order of detention, the order of detention deserves to be quashed and set aside. 5.0 In the result, the petition is allowed. SCA/1086520/2008 7/7 JUDGMENT The order dated 15.04.2008 passed by Police Commissioner, Ahmedabad is hereby quashed and set aside. The detenu is hereby ordered to be set at liberty forthwith if he is not required in connection with any other case by the Authority. Rule is made absolute. Direct service is permitted. (Z.K.SAIYED, J.) Umesh/