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2024 Supreme(Guj) 1082
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, Samir J. Dave, JJ.
Emtij @ Imtiyaj @ Anna Ukil Shaikh Through Deepakkuwar Rao W/o Ramsingh Rao – Petitioner
Versus
Commissioner of Police, Vadodara City & Ors. – Respondents
R/Special Civil Application No. 19090 of 2023
Decided On : 28-03-2024
Advocate Appeared:
For the Petitioner: Mr Mohddanish M Barejia
For the Respondent: Mr Rohan Raval, A.G.P.
IMPORTANT POINT
The detention under the PASA Act requires the activities of the detenue to affect adversely or be likely to affect adversely the maintenance of public order.
Headnote:
PASA Act - Detention of 'Immoral Traffic Offender' - Sections 2(g), 3, 4, 5, 7 of the Immoral Traffic (Prevention) Act - The court found that the detaining authority failed to substantiate that the alleged antisocial activities of the petitioner-detenue adversely affect or are likely to affect adversely the maintenance of public order. The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community much less public health. The detenue is ordered to be set at liberty forthwith if not required in any other case.
Fact of the Case:
The petitioner challenged the order of detention passed by the Commissioner of Police, Vadodara City, under the PASA Act, on the grounds of being a 'Immoral Traffic Offender'. The detaining authority relied upon an offence registered under the Immoral Traffic (Prevention) Act.
Finding of the Court:
The court found that the detaining authority failed to substantiate that the alleged antisocial activities of the petitioner-detenue adversely affect or are likely to affect adversely the maintenance of public order.
Issues: The main issue was whether the detention of the petitioner as an 'Immoral Traffic Offender' under the PASA Act was justified based on the impact on public order.
Ratio Decidendi: The detention under the PASA Act requires the activities of the detenue to affect adversely or be likely to affect adversely the maintenance of public order. Mere registration of a case under the Immoral Traffic (Prevention) Act does not automatically justify preventive detention under the PASA Act.
Final Decision: The Special Civil Application is allowed, and the impugned order of detention is quashed and set aside. The detenue is ordered to be set at liberty forthwith if not required in any other case.
JUDGMENT :
SAMIR J. DAVE, J.
1. By way of this petition, the petitioner - detenue has challenged the order of detention dated 06.10.2023 passed by the Commissioner of Police, Vadodara City, in exercise of powers conferred on him under sub-section(1) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short, 'the PASA Act') and has also prayed for an order to set him free from detention.
2. This Court has taken note of the fact that the petitioner has been detained as a 'Immoral Traffic Offender'. It also appears that in the grounds of detention order dated 06.10.2023, the detaining authority has relied upon one offence registered with the Sama Police Station, District Vadodara City being C.R. No.11196013230246 of 2023 for the offence punishable under Sections 3, 4, 5, 7 of the Immoral Traffic (Prevention) Act.
3. Section 2(g) of the PASA Act defines the term 'immoral traffic offender', which reads as under:-
“S.2(g) "immoral traffic offender" means a person who habitually commits or abets the commission of any offence under the Suppression of Immoral Traffic in Women and Girls Act, 1956;
3.1 Section 3 of the PASA Act speaks about the power to make orders detaining certain persons. It reads as under:
“Sec.3 Power to make orders detaining certain persons:
(1) The State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.
(2) If having regard to the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate or the Commissioner of Police, may also, if satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.
(3) When any order is made under this section by an authorised officer, he shall forthwith report the fact to the State Government, together with the grounds on which the order has been made and such other particulars as, in his opinion, has a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
(4) For the purpose of this section, a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
Explanation:- For the purpose of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this subsection directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or public health."
4. The Court has also taken in to consideration the fact that the petitioner was arrested on 03.10.2023 and released on bail on 05.10.2023 and thereafter, the order of detention was passed on 06.10.2023 and therefore, the order of detention is passed on the very next day of the order of bail.
5. The Apex Court in the case of Kalidas C. Kahar Vs. State of Gujarat and Ors., reported in 1989 Supple. II SCC 155, has held that the detaining authority has to undertake a meaningful exercise and apply the mind to the documents placed alongwith the sponsoring proposal and then come to the conclusion by subjectively satisfying itself. Looking to objectively to the documents o
