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2016 Supreme(Guj) 77
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G Shah, J.
Zakir @ Kalu Hasanbhai Saiyed - Petitioners
Vs.
State of Gujarat - Respondents
Special Civil Application No. 431 of 2016
Decided on : 10.02.2016
Advocate Appeared:
HCLS Committee, Advocate for the Petitioners No. 1
Mr. Vishal P Thakker, Advocate for the Petitioners No. 1
Advance Copy Served to GP/PP for the Respondents No. 1
Mr. DM Devnani, AGP for the Respondents No. 3
Rule Served by DS for the Respondents No. 1 - 2
Important Point – Mere involvement of detenu in criminal activity may not amount to dangerous activity by detenu.
Headnote:(A) Gujarat Prevention of Anti Social Activities Act, 1985 – Section 3(2) – Preventive detention as a dangerous person – Challenge as to – Only material that was available with \detaining authority was offences registered against detenu and on that basis, it cannot be said that activity of the detenu has become a threat to maintenance of ‘public order’ and ‘public health’ – Mere involvement of detenu in such activity may not amount to dangerous activity by detenu and mere mention of them, unless supported by any evidence, cannot be said to be material germane for the purpose of arriving at the subjective satisfaction that the activity of the detenu is prejudicial to the maintenance of ‘public order’ and ‘public health’ – Simplicitor registration of FIRs 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 – Order of detention quashed and set aside.
(B) Gujarat Prevention of Anti Social Activities Act, 1985 – Section 3(2) – Preventive detention as a dangerous person – Neither possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention – But, failure of detaining authority to consider possibility of either launching or pendency of criminal proceedings may, in circumstances of a case, lead to conclusions that detaining authority has not applied its mind to vital question whether it was necessary to make an order of preventive detention.
Result – Special Civil Application allowed.
S.G Shah, J.
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 6.11.2015 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 Section 2(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. 91/2015 and 159/2015 for the offences punishable under Section 379 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 XV11 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) 3SCC 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 concerned with the
