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2016 Supreme(Guj) 33
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. Shah, J.
Bipin – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Special Civil Application No. 19974 of 2015
Decided On: 13.01.2016
Advocate Appeared:
For Appellant:Valimohammed Pathan, Advocate
Important Point
Simplicitor registration of FIR/s by itself cannot have any nexus with breach of maintenance of public order.
Headnote:Gujarat Prevention of Anti Social Activities Act, 1985—Section 3(2)—Preventive detention as a dangerous person—Detaining authority has to be satisfied that person sought to be detained is of such a type that he will continue to violate laws of land if he is not preventively detained—Commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for detaining authority to justifiably come to conclusion that there is no alternate but to preventively detain petitioner—It is generally seen that though some of accused are repeatedly detained on different occasions for different offences, only because of non-disclosure of proper information and in all such detention orders, such orders are generally quashed and set aside by Court—Simplicitor registration of FIR/s by itself cannot have any nexus with breach of maintenance of public order and authority can take recourse under Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3(2) of the Act— Impugned 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 22.10.2015 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 three offences registered against the detenu before the concerned police station vide I-C.R. Nos. 30/2015, 230/2015 and 246/2015 for the offences punishable under Sections 397, 114 etc. of I.P.C., by itself cannot bring the case of the detenue within the purview of definition "dangerous person" under Section2(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 XV 11 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
