IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 14435 of 2004 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? -------------------------------------------------------------- BHARATKUMAR @ GURU CHANDRAKANTPANCHAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 14435 of 2004 MR MR PRAJAPATI FOR MS KRISHNA U MISHRA for Petitioner No. 1 MR HM PRACHCHHAK AGP for Respondents -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 15/02/2005 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 01st of September, 2004, 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 01st of September, 2004 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 offences punishable under Section 379 of the Indian Penal Code for the theft of two wheeler vehicles, and secondly, two in-camera statements of the witnesses, whose identity is not disclosed by the detaining authority claiming privilege under Section 9(2) of the PASA Act. 3. All the three cases came to be registered against the petitioner for the theft of two wheeler vehicles. Out of three, one crime came to be registered before the Dariyapur Police Station on 4th of April, 2003 while remaining two crimes were registered against the petitioner before GIDC (Vatva) Police Station, on 28th of November 2003 and 15th of June, 2004. The petitioner was released on bail in these cases. The detaining authority examined thoroughly the investigation papers in all the three cases and came to the conclusion that the petitioner was habitually committing offences of theft of two wheeler vehicles. 4. Secondly, the detaining authority relied upon two in-camera statements recorded by the sponsoring authority on 24th August, 2004 and 31st of August, 2004, as verified by the detaining authority on 31st of August, 2004. The first witness referred to an incident occurred on 16th of August, 2004, when at about 7.00 p.m. the witness was standing on the Mehmadabad Highway near Nikhil Tube Cross Roads, the petitioner approached him along with his accomplices and stated that the witness was providing information to the police about the activities of the petitioner in respect of theft of two wheeler vehicles. The witness refused to have provided any information to the Police. The petitioner was excited and he caught hold of the witness and started beating him. The witness raised shouts for help, which gathered crowd of residents and tradesmen of locality. On seeing crowd, the petitioner took out knife and threatened the witness to kill him. The witness was frightened. The petitioner also rushed towards the crowd gathered around, so the persons started running helter skelter. Traffic was disrupted. The persons residing there fell insecurity on account of terror of the petitioner. 5. The second witness referred to an incident occurred on 23rd August, 2004. On that day at about 7.00 P.M. the witness was present at his place of business, the petitioner approached the witness with one motor cycle and asked the witness to give him Rs. 20,000/- and to keep the motorcycle with the witness. The witness knew that the motorcycle might be stolen property on account of the activities of the petitioner and, therefore, the witness refused to keep the motorcycle and to give amount to the petitioner. The petitioner thereupon was accosted and caught hold of the witness and dragged him at public road at Trikampura and started beating him. The witness raised shouts of help, which attracted crowd of passersby and residents of the locality. The petitioner thereupon took out a knife, showed it to the witness and threatened to kill him. The petitioner also rushed towards the crowd, so people gathered there, started running helter - skelter. On account of this, the traffic was disrupted and terror was spread in the area. The normal life was disturbed. 6. From the above materials, the detaining authority came to the conclusion that the petitioner was engaged in illegal activities of committing theft of two wheeler vehicles and was a habitual offender. The detaining authority also came to the conclusion that the petitioner was dangerous person within the meaning of the PASA Act. The detaining authority also came to the conclusion that the petitioner was headstrong and ferocious person and was keeping deadly weapon with him. It was also alleged that the petitioner formed a gang of headstrong person and along with the gang, committed the offences of theft and was in habit of picking up quarrels with the citizens and to beat them. On account of the activities of the petitioner, fear and terror was spread among the locality. The detaining authority came to the conclusion that the activities of the petitioner were prejudicial to the maintenance of public order and were required to be prevented forthwith. After considering other alternative remedies available against the petitioner under the general law, the detaining authority came to the conclusion 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 the order of detention of the petitioner as aforesaid, which is under challenge in this petition. 7. Learned advocate Mr.M.R.Prajapati for the petitioner and learned AGP Mr. H.M. Prachchhak for the respondents were heard at length. The affidavit-in-reply filed by the detaining authority as placed on record by learned AGP is also taken into consideration. 8. 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. 9. 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." 10. 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 the 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 disclosed 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 revealed 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. 11. 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 the two incidents narrated through incamera statements were more individual disputes than 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 phrases 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 their 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. 12. 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." 13. 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. 14. In the result, the petition is allowed. The order passed by the Police Commissioner, Ahmedabad City on 01st of September, 2004 against the petitioner in exercise of powers under Section 3(1) of the PASA Act is hereby quashed and set aside. The detenu Bharatkumar Guru Chandrakant Panchal 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.) p.n.nair