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2024 Supreme(Online)(GUJ) 23483
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MS. JUSTICE S.V. PINTO, JJ
SARFARAJ @ SHERU ABDULKADARBHAI PANJA SIPAI THRO AKBARHUSEN ABDULKARIM SHAIKH – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 11812 of 2024
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1 MR. L.B. DABHI, APP for the Respondent(s) No. 1
Preventive detention requires a clear link between alleged activities and public order; mere law and order issues do not suffice.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(c) and Section 3 - Preventive detention - The petitioner challenged the detention order claiming it was based on offences affecting law and order rather than public order - The court found that the alleged activities did not affect public order, referencing the distinction between law and order and public order as established in prior case law. (Paras 4, 8, 9)
(B) Preventive Detention - The court emphasized that mere disturbances of law and order do not justify preventive detention unless they affect the community at large. (Paras 17, 18)
Facts of the case:
The petitioner was detained as a 'dangerous person' under the Act based on two criminal cases, but was granted bail in both. The court examined whether the detention order was sustainable in law.
Findings of Court:
The court concluded that the activities of the petitioner did not adversely affect public order, thus the detention order was not legally valid.
Issues: The main issue was whether the detention order was justified under the Act based on the nature of the alleged offences.
Ratio Decidendi: The court ruled that the detaining authority failed to demonstrate that the petitioner's activities affected public order, reiterating that not all disturbances of law and order warrant preventive detention.
Result: The petition was allowed, and the detention order was quashed.
| Table of Content |
|---|
| 1. detention order and challenge (Para 1 , 2 , 3 , 5) |
| 2. arguments by the petitioner (Para 4) |
| 3. court's consideration of facts (Para 6) |
| 4. reference to criminal cases (Para 7 , 8 , 9) |
| 5. petition allowed and order quashed (Para 10) |
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. The petitioner herein namely Sarfaraj @ Sheru Allahrakhabhai Panja Sipai came to be preventively detained vide the detention order dated 23.08.2024 passed by the District Magistrate, Junagadh, as a “dangerous person” as defined under Section 2(c) 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.
Valimohammed Pathan and Mr. L.B. Dabhi, learned Additional Public Prosecutor for the respective parties.
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 Junagadh.
6. Having considered the facts as well as the submissions made by the respective parties, the issue arise 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 petitioner and presently he is in Jail. In the grounds of detention, a reference of two criminal cases i.e. (i) for the offence under Sections 307, 326, 143, 147, 148, 149, 323, 504 and 506(2) of Indian Penal Code and Section 25(1-b) (a) of the Arms Act and Sections 135 of Gujarat Police Act dated 09.03.2024 with ‘A’ Division Police Station, Junagadh, (ii) for the offence under Sections 324, 323, 294(b), 506(2) and 114 and Section 135 of the Gujarat Police Act dated 07.03.2024 with ‘A’ Division Police Station, Junagadh, registered against the petitioner under the Indian Penal Code (old), Arms Act and Gujarat Police Act was made and further it is alleged that, the activities of the detenue as a “dangerous 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 petitioner was granted bail.
8. After careful consideration of the material, we are of the considered view that on the basis of two criminal cases, the authority has wrongly arrived at the subjective satisfaction that the activities of the detenue could be termed to be acting in a manner ‘prejudicial to the maintenance of public order’. In our opinion, the said offences do not have any bearing on the maintenance of public order. In this connection, we may refer to the decision of the Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad , 1989 Supp (1) SCC 322, wherein, the detention order was made on the basis of the registration of the two prohibition offences. The Apex Court after referring the case of Pushkar Mukherjee Vs. St
