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2018 Supreme(Guj) 73
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
S.G. SHAH, J.
JOYEBKHAN NADIRKHAN BALOCH - Petitioner
Versus
STATE OF GUJARAT & Ors. - Respondent
SPECIAL CIVIL APPLICATION NO. 21948 of 2017
Decided On : 20-02-2018
For the Petitioner: MR. MINHAJ M SHAIKH, ADV.
For the Respondent: MR.DIPAK ALORIA, AGP
Headnote:
Criminal Law – Gujarat Prevention of Anti Social Activities Act, 1985 – Sections 3[2] and 2[c] – Indian Penal Code – Sections 379, 356 and 114 – Criminal Procedure Code, 1973 – Sections 107 and 110 – Seeking quash and set aside the order of detention – Dangerous person – Counsel for the detenue further submits that the illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order – Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of detenue with breach of the public order – Held, It is generally seen that though some of accused are repeatedly detained on different occasions for different offences, only because of nondisclosure of proper information and in all such detention orders, such orders are generally quashed and set aside by Court – It is also seen that because of quashing of previous detention order, competent authority could not consider grounds of detention under such order which is already quashed as a ground for detention for subsequent offences by same detenue. competent authorities are not abiding by all other cited cases while passing order of detention based upon three offences, it is surprising to note that at no point of time they have challenged observation of any Court that when previous order of detention has been quashed, it cannot be considered in subsequent detention – It goes without saying that if a particular detenue continues to commit the 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 the Court so as to avoid the quashing of such detention order – If competent authority fails to take up 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 the respondents – Petitioner has argued on merits of FIRs, referring certain judgments – However, discussion of such facts, prima facie at this stage, is not warranted since it may otherwise prejudice trial – Since all such orders are quashed on technical grounds, the same shall not come in the way of the Detaining Authority to pass an appropriate order in future – Petition is allowed. (Paras 8 to 11)
1. This petition is directed against the order of detention dated 23.11.2017 passed by the respondent no.2 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.
2. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground that the registration of three offences by itself cannot bring the case of the detenue within the purview of definition of dangerous person under Section 2[c] of the Act. Learned counsel for the detenue further submits that the illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and 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.
3. Learned counsel 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 cases 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 cases, 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 the public order.
4. 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.
5. Having heard the learned counsel for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue as a dangerous person within the meaning of section 2[c] of the Act and, unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a dangerous person within the meaning of Section 2[c] of the Act. Except general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order. In view of the ratio laid down by the Honble Supreme Court in the cases of [i] Ranubhai Bhikhabhai Bharwa
