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2024 Supreme(Online)(GUJ) 24347
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MS. JUSTICE S.V. PINTO, JJ
NAJMALHUSAIN MOHAMMEDYUSUF KURESHI THRO MOHAMMEDNASIR MOHAMMEDIQBAL QURESHI – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 14326 of 2024
Preventive detention requires a clear nexus to public order, not merely law and order; mere allegations without substantial evidence do not justify detention.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(bbb) and Section 3 - Preventive detention - The petitioner challenged the detention order claiming it was based on activities that did not affect public order, but merely law and order - The court found no material to support the detention as the alleged activities did not meet the threshold for public order disturbance. (Paras 1, 4, 9, 10)
(B) Public Order vs. Law and Order - The court emphasized the distinction between mere law and order issues and those affecting public order, referencing prior case law to support its findings. (Paras 9, 10)
Facts of the case:
The petitioner was detained as a 'cruel person' under the Act based on allegations of animal cruelty and other offenses, but he was granted bail in all cases. (Paras 1, 7)
Findings of Court:
The court concluded that the activities alleged against the petitioner did not adversely affect public order, thus the detention order was quashed. (Paras 9, 10)
Issues: Whether the detention order was sustainable in law given the nature of the alleged offenses and their impact on public order. (Paras 6, 10)
Ratio Decidendi: The court ruled that the detaining authority failed to demonstrate that the petitioner's actions affected public order, emphasizing the need for a clear distinction between law and order and public order. (Paras 9, 10)
Result: Petition allowed; detention order quashed.
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
Rule. Learned APP waives service of Rule on behalf of respondent-State. By consent, Rule is fixed forthwith.
1. The petitioner herein namely Najmalhusain Mohammedyusuf Kureshi came to be preventively detained vide the detention order dated 19.10.2024 passed by the Police Commissioner, Ahmedabad, as a “cruel person” as defined under Section 2(bbb) of the Gujarat Prevention of Anti- social Activities Act, 1985 (herein after referred as ‘the Act of 1985).
2. By way of this petition, the petitioner has challenged the legality and validity of the aforesaid order.
3. This Court has heard learned counsel Mr. Razin Zeena and Ms. Krina Calla, learned APP for the respondent State.
4. Learned advocate for the detenue submits that the grounds of detention has no nexus to the “public order”, but is a purely a matter of law and order, as registration of the offence cannot be said to have either affected adversely or likely to affect adverse the maintenance of public order as contemplated under the explanation sub-section (4) of Section 3 of the Act, 1985 and therefore, where the offences alleged to have been committed by the detunue have no bearing on the question of maintenance of public order and his activities could be said to be a prejudicial only to the maintenance of law and order and not prejudicial to the maintenance of public order.
5. On the other hand, learned State Counsel opposing the application contended that, the detenue is habitual offender and his activities affected at the society at large. In such set of circumstances, the Detaining Authority, considering the antecedents and past activities of the detenue, has passed the impugned order with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Ahmedabad.
6. Having considered the facts as well as the submissions made by the respective parties, the issue arises as to whether the order of detention passed by the Detaining Authority in exercise of his powers under the provisions of the Act of 1985 is sustainable in law?
7. The order impugned was executed upon the applicant and presently he is in Bhavnagar District Jail. In the grounds of detention, a reference of two criminal cases registered against the applicant for the offence punishable under Section 429 of IPC and Sections 5(1), 6, 8(1) and 10 of Animal Preservation Act and Section 11(1)(L) of Animal Cruelty Act and Sections 335 and 392 of B.P.M.C. Act dated 26.09.2023 registered with Shahpur Police Station and for the offence punishable under Section 429 of IPC and Sections 5 and 6 of Animal Preservation Act and Sections 8 and 11(1)(1) of Animal Cruelty (Preservation) Act and Section 392 of BPMC Act dated 07.01.2024 registered with Dariyapur Police Station was made and further it is alleged that, the activities of the detenue as a “cruel person” affects adversely or are likely to affect adversely the maintenance of public order as explained under Section 3 of the Act of 1985. Admittedly, in all the said offences, the applicant was granted bail.
8. The term ‘Cruel Person’ defined under Section 2(bbb)
reads as under:
"cruel 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 an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954;"
9. After careful consideration of the material, we are of the considered view that, there is no material placed before the authority to establish that the applicant was convicted of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 within a period of 3 years from the date of such conviction who either himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of the Bombay Animal Preservation Act, 1954. Thus, therefore, we are of the firm view that, the activities as alleged would not fal
