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2015 Supreme(Guj) 925
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. Shah, J.
Dinesh Jumman Girdhari Daroga (Marvadi) - Appellant
Vs.
State of Gujarat and Ors. - Respondents
Special Civil Application No. 19724 of 2015
Decided On : 14.12.2015
Advocate Appeared:
For Appellant :K.D. Parmar, Advocate.
Headnote:Gujarat Prevention of Anti Social Activities Act, 1985—Section 3(1)/3(2)— Preventive detention as a Bootlegger—Challenge as to—If a particular detenu continuous to commit similar offence repeatedly and if he is required to be detained repeatedly then at least at some point of time, competent authority shall compile all information and shall consider it for fresh detention order as and when necessary and shall produce all such information before Court so as to avoid quashing of such detention order—If competent authority fails to take care of such exercise and when in impugned order of detention all such facts were not disclosed or considered for passing such order, detention order is required to be dealt with as it is without considering additional disclosure in affidavit-in-reply by respondents—Though impugned order is quashed and set aside at present, it would not come in way of competent authority for quoting such FIRs and order of detention, thereby to treat petitioner as a habitual offender in case of commission of offence repeatedly—FIRs registered under Bombay Prohibition Act alone cannot be said to be sufficient enough to arrive at subjective satisfaction to the effect that activities as alleged, are prejudicial to public order or lead to disturbance of public order—There has to be nexus and link for such activities with disturbance of public order—Order of detention quashed.
Result—Special Civil Application allowed.
S.G. Shah, J.
1. Perused the petition, materials supplied to the detenu, detention order and heard learned counsel for the parties.
2. This petition under Article 226 of the Constitution of India is directed against the order of detention dated 31.8.2015 passed by the respondent authority in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short the Act) by detaining the detenue as a "dangerous person" as defined under Section2(c) of the Act.
3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside and the ground that two offences registered against the detenu before the concerned police station vide I-C.R. Nos. 173/2013 and 103/2015 for the offences punishable under Sections 454, 114 etc. of I.P.C., by itself cannot bring the case of the detenue within the purview of definition "dangerous person" under Section 2(c) of the Act. Learned advocate for the detenue further submits that illegal activity carried out as alleged cannot have any nexus or bearing with maintenance of public order and at the most it can be said to be breach of law and order. Further, except registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of the public order.
4. Section 2(c) of the Act defines the term "dangerous person" as under:--
"2(c). "dangerous person" means a person, who either by himself or as a member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code (GLV of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (54 of 1959)."
5. Learned advocate for the detenue, placing reliance on the decisions reported in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) v. State of Gujarat reported in 2000(3) GLR 2696; (ii) Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat reported in 2000(1) GLH 393; and (iii) Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta, reported in (1995)3 SCC 237, submitted that the case on hand is squarely covered by the ratio laid down in the aforesaid decisions. Learned counsel for the detenue further submits that it is not possible to hold in the facts of the present case that the activities of the detenue with reference to the criminal case/s had affected even tempo of the society, posing a threat to the very existence of the normal and routine life of the people at large or that on the basis of the criminal case/s, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by the rule of law by disturbing public order.
6. Learned AGP for the respondent-State supported the detention order passed by the authority and submitted that the detenue is a "dangerous person" and sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue, indicating that the detenue is in habit of indulging into activities as defined under Section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court. For such submission, the learned A.G.P. took me through the grounds upon which the detaining authority satisfied to detain the petitioner.
7. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily
