Gujarat High Court
Bharatbhai Jivrajbhai Limbasiya vs State Of Gujarat & 2 on 1 May, 2015
Author: Ks Jhaveri
Bench: Ks Jhaveri
C/SCA/1946/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1946 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHARATBHAI JIVRAJBHAI LIMBASIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR K S CHANDRANI, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2 3
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
Date : 01/05/2015
ORAL JUDGMENT
1. By way of this petition, the petitionerdetenue has challenged the order of detention dated 10.06.2013 passed by the Commissioner of Police, Rajkot in exercise of powers conferred on him Page 1 of 8 C/SCA/1946/2015 JUDGMENT under subsection (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. The order of detention along with the grounds supplied to the detenue are suggestive of the fact that the petitioner has been detained labelling him as a "dangerous person" as provided under subsection (2) of Section 3 of the PASA Act. The grounds of detention are also suggestive of the fact that the detaining authority has taken into consideration a case registered with the Bhaktinagar Police Station, Rajkot vide CR No.II57/2014 for the offence punishable under Sections 25(1)(1B)A and 27(1) of the Arms Act. The status of the F.I.R. has been shown as "pending in the court". The subjective satisfaction as reflected from the grounds are to the effect that the detenue is indulging in the offences falling within Chapter XVII of the Indian Penal Code. His highhanded actions create a situation of disturbance of public order. On these grounds, the Commissioner of Police, Rajkot has ordered detention of the petitioner.
3. Mr.K.S.Chandrani, the learned advocate appearing for the detenue submitted that the order of detention is malicious, unjust and illegal. Learned counsel submitted that there is no material available with the detaining authority Page 2 of 8 C/SCA/1946/2015 JUDGMENT to indicate that the detenue is a dangerous person as defined under Section 2(c) of the PASA Act nor there is any material or antecedent to show that he is a habitual offender and involved in antisocial activities prejudicial to the maintenance of public order. It is his case that this order of detention is nothing but abuse of power at the hands of the Commissioner of Police, Rajkot.
4. On the other hand, this petition has been vehemently opposed by Mr.Rakesh Patel, the learned AGP appearing for the State. According to learned AGP, there are sufficient grounds to issue the detention order. Learned AGP has submitted that the detention order was issued after careful consideration of the materials available before the detaining authority.
5. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the order of detention deserves to be quashed.
6. I am concerned only with the question as to whether there are sufficient grounds and materials available to detain the detenue in prison without trial in exercise of powers conferred under Section 3(2) of the PASA Act, describing him as a 'dangerous person' under Page 3 of 8 C/SCA/1946/2015 JUDGMENT Section 2(c) of the Act on the basis of the F.I.R. registered against the detenue.
7. On plain reading of the allegations levelled in the F.I.R., by any stretch of imagination, it cannot be said that the incident in question was such which disturbed the public order, peace and tranquility.
8. I am of the view that merely because an offence is registered under the Arms Act that by itself is not sufficient to come to the conclusion that the public order has been disturbed.
9. At this stage, it would be expedient to quote the judgment rendered by the Division Bench of this Court in the matter of Ramesh Vandha Modhwadiya through brother, Laxmanbhai Vandha v. State of Gujarat, reported in 2009(3) GLH 296, wherein in paragraph 11, the Division Bench has observed as under: "11. PASA Act has been enacted with a clear object to prevent the crime and to protect the society from antisocial elements and dangerous characters against perpetration of crime by placing them under detention for such a duration as would disable them from resorting to undesirable criminal activities. The provisions of the Act are intended to deal with habitual criminals, dangerous and desperate outlaws, who are so hardened and incorrigible that the ordinary provisions of the penal laws and the mortal fear of punishment for crime are not sufficient deterrents for them. Law is well Page 4 of 8 C/SCA/1946/2015 JUDGMENT settled that the power under the Act should be exercised with restraint and great caution. In order to pass an order of detention under the Act against any person, the detaining authority must be satisfied that he is a `dangerous person' within the meaning of Section 2(c) of the PASA Act, who habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Penal Code or any of the offences punishable under Chapter V of the Arms Act as according to subsection (4) of Section 3 of the Act it is such `dangerous person' who for the purpose of Section 3 shall be deemed to be a person "acting in any manner prejudicial to the maintenance of public order" against whom an order of detention may lawfully be made. Further, subsection (1) of Section 3 confers power on the State Government and a District Magistrate or a Commissioner of Police under the direction of the State Government to detain a person on being satisfied that it is necessary to do so with a view to preventing him from acting in any manner prejudicial to the maintenance of `public order'. The explanation attached to subsection (4) of Section 3 reproduced above in the foregoing para contemplates that `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 subsection (4) directly or indirectly, are 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. Subsection (4) of Section 3 also provides that for the purpose of Section 3, a person shall be deemed to be `acting in any manner prejudicial to the maintenance of public order' when such person is a `dangerous person' and engaged in activities which affect adversely or are likely to affect adversely the maintenance of public order. It, therefore, becomes necessary to determine Page 5 of 8 C/SCA/1946/2015 JUDGMENT whether besides the person being a `dangerous person' his alleged activities fall within the ambit of the expression `public order'. A distinction has to be drawn between law and order and maintenance of public order."
In paragraphs 15 and 16, the Division Bench has, after considering the factual position on the record, observed as under: "15. We find that even going by the F.I.R. on the date of incident, it is alleged that the dentenu's father had a pistol with him. There is nothing to show that he had fired with the pistol or caused any harm to anybody. Possession of pistol by detenu's father without license may be an offence so far as father is concerned and not the son, the detenu. Further, it is also to be noted that though they had disturbed the programme, later, the programme continued without any disturbance. Further, they had not caused any harm or bodily injury to anybody present there. Even in the F.I.R. it is stated that they had not caused any serious harm or injury to anybody. At the most, in our view, the incident occurred on that day might have raised problems of law and order, but we find it impossible to see that they impinged public order. No motive was also attributed against the detenu for creating such an incident. In order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order to fall out and extend and reach of the alleged activities must be of such a nature the ordinary law cannot deal with it or prevent the subversive activities affecting the society. In our view, those incidents are not sufficient to take action against the detenu under the provisions of the PASA Act. We are, therefore, unable to agree that the incident in question occurred on 10.02.2008 would be sufficient to disturb the Page 6 of 8 C/SCA/1946/2015 JUDGMENT tempo of life of the community so as to disturb the public tranquility and public order.
16. The incident referred to in the F.I.R. had occurred on 10.02.2008 and criminal case was registered against the detenu and others and are being tried for the offences punishable under Sections 506(2) and 114 of the Indian Penal Code, Section 135 of the Bombay Police Act and Section 25(1B)A.B.) of the Arms Act. Registration of cases and trial undertaken would be sufficient enough to contain those situations, but not sufficient to detain a person, and to characterise him as a `dangerous person' curtailing his life and liberty. There is nothing to show that the detenu is a habitual offender, apart from the solitary incident occurred on 10.02.2008. May be, a solitary act has the propensity of affecting the tempo of life and public tranquility, but the incident occurred on 10.02.2008 will not fall under that category. The detaining authority could not point out any other incident in which he was involved or a criminal case registered against him. Even the three witnesses have also not filed any complaints against the detenu. The solitary incident pointed out in the F.I.R. and the reach and potentiality of that incident cannot be said to be so grave to disturb even the tempo or normal life of the community in the locality or disturb general peace and tranquility or create a sense of alarm and insecurity in the locality. The mere fact that the order narrates the detenu as a `dangerous person' without any materials, a conclusion cannot be drawn that the detenu is a `dangerous person', unless the incident has reach and potentiality, and a single incident pointed out as such would not indicate that the detenu is a habitual offender. Power under the Act to detain a person in jail has to be exercised with restraint and great caution."
10. In the recent pronouncement of the Supreme Court Page 7 of 8 C/SCA/1946/2015 JUDGMENT in the matter of Pebam Ningol Mikoi Devi v/s. State of Manipur and others, reported in (2010) 9 SCC 618, the Supreme Court has considered all aspects pertaining to individual liberty and has also held that in a criminal case, if it is initiated against the detenue, the prosecution would not be in a position to procure evidence to sustain conviction cannot be a ground to pass an order of preventive detention under the National Security Act.
11. In the result, the petition 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 connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
` (K.S.JHAVERI, J.) Tuvar Page 8 of 8