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2014 Supreme(Guj) 349
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.H.VORA, J.
SANJAYKUMAR HUKAMCHAND SHAH - Petitioner(s)
Versus
STATE OF GUJARAT & 2 - Respondent(s)
SPECIAL CIVIL APPLICATION NO. 532 of 2014
Decided on: 07/02/2014
Advocate Appeared
MR VIRAL V DAVE, ADVOCATE for the Petitioner(s) No. 1
MS ASMITA PATEL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
The main legal point established in the judgment is the requirement for continuous or repeated acts to justify preventive detention and the distinction between 'law and order' and 'public order' offenses.
Headnote:
Detention Order - Challenge under Article 226 - Gujarat Prevention of Anti-Social Activities Act, 1985 - Section 3 - Summary of Acts and Sections: The court discussed the legality and validity of the order of detention passed under Sub-Section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985. The key legal provisions discussed include the definition of 'dangerous person' under Section 2(c) of the Act and the criteria for preventive detention. The court emphasized the need for continuous or repeated acts to justify preventive detention and distinguished between 'law and order' and 'public order' offenses.
Fact of the Case:
The petitioner challenged the legality and validity of the order of detention passed under the Gujarat Prevention of Anti-Social Activities Act, 1985 at the pre-detention stage. The petitioner had been arrested for offenses under the Indian Penal Code and sought to challenge the order of detention before surrendering.
Finding of the Court:
The court found that the order of detention was passed without adequate grounds and was not in accordance with the law. It concluded that the petitioner was not a 'dangerous person' and the alleged activities did not disturb the maintenance of public order. As a result, the court quashed and set aside the impugned order of detention.
Issues: The issues involved the maintainability of the petition at the pre-execution stage, the legality of the detention order, and the criteria for preventive detention under the Act.
Ratio Decidendi: The court emphasized the need for continuous or repeated acts to justify preventive detention and distinguished between 'law and order' and 'public order' offenses. It also highlighted the importance of the detaining authority's subjective satisfaction and the necessity to consider the possibility of criminal proceedings before resorting to preventive detention.
Final Decision: The petition was allowed, and the impugned order of detention was quashed and set aside.
1. By way of this petition under Article 226 of the Constitution of India, the petitioner challenges the legality and validity of the order of detention dated 14.1.2014 passed by the respondent No.2 in purported exercise of powers under Sub-Section (2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short, the 'Act') at predetention stage.
2. Brief facts as arising from the petition are that an F.I.R. being C.R.No. 318 of 2013 for the offences punishable under Sections 323, 325, 114 and 188 of the Indian Penal Code on 7.12.2013 before Limbayat police station. It is alleged in the complaint that the accused, after keeping grudge in mind with the help of other persons have beaten up the complainant by giving stick blows and kick blows. Thereafter, the petitioner was arrested and released on regular bail on 30.12.2013.
3. Upon serious apprehension that the order of detention has already been passed against the petitioner, the present petition is preferred.
4. An affidavit-in-reply is filed by the respondent No.2 contending that the petition filed by the petitioner is not maintainable under the law. In the said reply, it is stated by the respondent No.2 that an order of detention is passed by the authority under the said Act against the petitioner. According to the respondent No.2, the petitioner has preferred this petition at a premature stage apprehending that the respondent authorities would invoke the provisions of the said Act against the petitioner. According to the respondent No.2, the present petition has been filed with misconception of facts and law at the stage of pre-execution of detention order. It was contended that the petitioner was required to surrender before challenging the order of detention which is not yet served to him. It was further contended that since the detaining authority on a subjective satisfaction, after perusal of relevant materials placed before it including the documents relating to one offence registered against the petitioner that the activities of the petitioner were prejudicial to the maintenance of public order, the order of detention was passed against the petitioner. According to the respondent No.2, the detaining authority, after carefully considering, pursuing, examining and applying its mind to all the relevant materials placed before it as well as legal provisions applicable to the same, was subjectively satisfied that the petitioner is a 'dangerous person' as defined under Section 2(c) of the Act and hence, passed the order of detention against the petitioner to prevent him from acting in any manner prejudicial to the maintenance of public order. The respondent No.2 further stated in the reply that the interference with the impugned order of detention at this stage and restraining the authorities from enforcing the order of detention without the petitioner being surrendered to it, would frustrate the order and defeat the very purpose of the Act. Along with the affidavit-in-reply filed on behalf of the respondent No.2, the State has placed on record detention order No.PCB/PASA/DTN//16/2014 dated 14.1.2014 passed by the respondent No.2 for Court’s perusal.
5. Learned advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj V/s. State of Maharashtra and another reported in (2008)16 SCC 14. According to him, the Hon'ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and others V/s. Smt. Alka Subhash Gadia and another reported in 1992 Supp.(1) SCC 496 and the objections taken at the pre-execution stage by the other side therein, on the identical ground, has held that "we are of the opinion that the five grounds mentioned therein on which the Court can set aside
