Point of Law: Order of detention deserves to be quashed and set aside on the ground of non-application of mind itself. Had this material fact of acquittal in four criminal cases been placed before the Detaining Authority, it might have influenced the mind of the Detaining Authority one way or the other on the question whether or not to make the detention order. The withholding of the vital fact that the detenue has been acquitted in four criminal cases, resulting in the non-application of the mind of the Detaining Authority to the said fact, vitiates the impugned order of detention.

JUDGMENT :

J.B. PARDIWALA, J.

1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant (detenue) of a writ application and is directed against the judgment and order passed by the learned Single Judge of this Court dated 21st August, 2020 in the Special Civil Application No.8321 of 2020 whereby the learned Single Judge rejected the writ application affirming the order of detention passed by the Detaining Authority dated 28th April, 2020 under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 (for short “the Act, 1985”).

2. It appears from the materials on record that the appellant came to be preventively detained as a “dangerous person” as defined under Section 2(C) of the Act, 1985 vide the order of detention dated 28th April, 2020 passed by the District Magistrate, Jamnagar in exercise of his powers under Section 3(2) of the Act, 1985.

3. The Detaining Authority, in the grounds of detention, has relied upon ten criminal cases registered against the appellant and the statements of two witnesses recorded in Camera, whose identity has not been disclosed by exercising privilege under Section 9(2) of the Act in public interest.

4. The Detaining Authority, relying upon the aforesaid materials, arrived at the subjective satisfaction that the activities of the appellant are prejudicial to the maintenance of public order as the appellant could be termed as the dangerous person as defined under the Act, 1985.

5. The appellant, being dissatisfied with the order of preventive detention, challenged the same by filing the Special Civil Application No.8321 of 2020. A learned Single Judge of this Court heard the writ application and vide judgment and order dated 21st August, 2020, rejected the same. The learned Single Judge, while rejecting the writ application, held as under:

“4. While the learned AGP appearing for the State has drawn my attention towards detention order, wherein it is stated that in the report itself it is stated that ten offence are registered against the present petitioner and he has repeated similar types of offence and the cases are registered since 2017 to 2020. It is contended by the learned AGP that even after registration of last offence, there are statements of witnesses wherein it is stated that the petitioner had asked for motorcycle from one of the witnesses and when he had denied to lend the motorcycle, the present petitioner had assaulted him with knife and there was affray and public peace was disturbed. The witness was so much afraid that he had not dared to file any complaint against the present petitioner. While as per the statement of other witness, when he was returning after purchasing grocery, the present petitioner had demanded Rs.100 from the witness and when the witness refused to part with the money, the petitioner had assaulted him with a knife and thus public peace was disturbed and there was atmosphere of fear in the public place. The learned AGP has contended that all the offences are committed in public place and due to his conduct crowd had gathered and public peace was disturbed.

5. The contention is raised about non-application of mind on the part of the detaining authority to the extent that registration of ten offences and that too the petitioner is acquitted in some of the offences, cannot result into breach of public order and case of breach of law and order can be dealt with by taking recourse to ordinary course of law.

6. Thus, from the order of the detention, it reveals that the petitioner has used lethal weapon by administering threat to the complainant and witnesses at public place and in view of detaining authority it has resulted not only into breach of law and order but also public order and, therefore, detaining authority by applying its mind arrived at subjective satisfaction, cannot be said to have been vitiated. Further, the detention of a person is not to punish him but to prevent him from doing so in futu