Gujarat High Court
Dineshbhai Amthabhai Rabari vs State Of Gujarat & 2 on 16 January, 2014
Author: S.H.Vora
Bench: S.H.Vora
C/SCA/17773/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17773 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.H.VORA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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DINESHBHAI AMTHABHAI RABARI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR JAYPRAKASH UMOT, ADVOCATE for the Petitioner(s) No. 1
MR BIPIN BHATT, AGP for the Respondent(s) No. 3
RULE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE S.H.VORA
Date : 16/01/2014
ORAL JUDGMENT
Page 1 of 8
C/SCA/17773/2013 JUDGMENT
1. Perused the petition, materials supplied to the detenu, detention order and heard learned advocate Mr.Jayprakash Umot for the petitioner and learned A.G.P. Mr.Bipin Bhatt for the respondent-State.
2. Learned Advocate for the petitioner has invited my attention to the order of detention dated 25.9.2013 by which detenu was arrested and sent to Lajpor Central Prison, Surat, as well as to the grounds supplied by the detaining authority.
3. Learned Advocate has further submitted that in the order of detention, it is stated that the detenu is carrying on antisocial activities and on the basis of four offences registered against the detenu vide CR Nos.307, 380, 382 and 503 of 2013 for the offences punishable under Sections 3,4,5 and 8 of the Immoral Traffic (Prevention) Act, 1956, 3,4,5 and 8 of the Immoral Traffic (Prevention) Act, 1956, Section 188 of I.P.C. and 3,4,5 and 8 of the Immoral Traffic (Prevention) Act, 1956 respectively, he has been termed as 'Immoral Traffic Offender' within the meaning of Section 2(g) of the P.A.S.A. Act. It is also stated in the impugned order that as the said activities of the detenu are dangerous and affecting maintenance of 'public order' and 'public health', the order of detention has been passed against him.
Section 2(g) of the Act defines the term 'Immoral Traffic Offender' as under:
"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 (104 of 1956)."
4. He has further submitted that on the basis of criminal Page 2 of 8 C/SCA/17773/2013 JUDGMENT case registered against the detenu, he cannot be termed as an 'Immoral Traffic Offender'. In support of his case he has placed reliance on a decision of this Court passed in the case of "Sohanlal Surajram Visnoi Vs. State of Gujarat and Ors." reported in 2004(2)GLR 1051 wherein it was held as under:
"It may be noted that the contention advanced on behalf of the petitioners that no preventive detention order can be recorded in a solitary incident or instance or offence cannot be accepted in toto. The detaining authority can pass the order of detention even on the basis of a solitary incident or instance, provided there is justifiable subjective satisfaction on objective material and consideration that such incident or offence is likely to create disturbance of "Public Order".
Emphasis is laid on "Public Order" and not on "Law and Order" which belongs to the realm of general law. After having taken into account the statutory definitions of the persons branded as "bootlegger" or "dangerous person" under the P.A.S.A. Act, and detailed factual matrix of each case, the solitary incident or instance in question in these petitions has not been shown or spelt out from the record as affecting the "Public Order" or likely to create public disturbance or prejudicial or adverse to the maintenance of "Public Order", and therefore, the continued detention of the detenu in each case has not been shown to be justifiable, ..."
Learned advocate for the petitioner urged that because of the petitioner's activity, there would not be breach of public order, as question involved in the present petition, where two or more instances categorized the activities of the petitioner as threat to public order. In support of his submission, he has placed reliance on Firozkhan Jitsing Rathod v. Commissioner of Police, delivered in Special Civil Application No.10966 of 2007 on 19.10.2007.
Hence, he has submitted that the impugned order deserves to be quashed and set aside.
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5. On the contrary, learned A.G.P. for respondent detaining Authority has supported the order of detention as well as grounds stated therein and has contended that the Authority has passed the impugned order after taking into consideration all the facts and circumstances of the case, and hence, no case is made out calling for interference of this Court.
Learned AGP Mr. Bhatt urged that the three offences under Immoral Traffic (Prevention) Act, 1956 has been registered against the petitioner and there is ample material to suggest that the activities of the petitioner are in breach of public order. In support of his submission, he has placed reliance on Subramanian v. State of Tamil Nadu and Another, reported in 2012(4) SCC, 699 and more particularly Paragraph 17, which reads as under: -
"It is also seen from the grounds of detention that because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the detaining authority, the above scene created a panic among the public. In such circumstances, the scene created by the detenu and his associates cannot be termed as only law and order problem but it is public order as assessed by the detaining authority who is supposed to safeguard and protect the interest of public. Accordingly, we reject the contention raised by the learned Senior Counsel for the appellant."
6. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person Page 4 of 8 C/SCA/17773/2013 JUDGMENT concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of isolated laws of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain the person.
7. So far as case-law rendered in case of Subramanian (Supra) cited by the learned learned AGP Mr. Bhatt for the State is concerned, it appears that in the said case, there was material found from the grounds of detention and because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and also auto drivers left their stand and thus left the place. Accordingly, the activity of the detenu and his associates was not termed as only law and order problem but it affect the public order as assessed by the detaining authority. In the case on hand, though there might be material on record before the detaining authority to suggest that the petitioner was involved in running a brothel and thus involved in supplying of women, the question is whether that by itself can be stated to be the activity of breach of public order. In Court's opinion such offence is though posed problem of law and order as concept of public order is much different and thus the petitioner's activity would not affect the Page 5 of 8 C/SCA/17773/2013 JUDGMENT maintenance of public order as there is nothing on record to show that there was a feeling of insecurity among the general public. Thus, the commission of offences in question do not come within the purview of public order and therefore, case- law cited by the learned AGP Mr.Bhatt is not applicable to the facts of the present case.
8. No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Since there is an allegation that the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the court that the question too was borne in mind before the order of detention was made. In the case on hand, the detaining authority failed to satisfy the court that the detaining authority so bore the question in mind and, therefore, the court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question whether it was necessary to preventively detain the detenue. It is also fruitful to refer to the decision of the Hon'ble Apex Court rendered in the case of Rekha V/s. State of Tamil Nadu through Secretary to Government and another reported in (2011)5 SCC 244 wherein, it is observed by the Hon'ble Apex Court that if a Page 6 of 8 C/SCA/17773/2013 JUDGMENT person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken recourse to.
9. As a result of hearing and perusal of the record, it appears that the only material that was available with the detaining authority was one criminal case registered against the detenu and on that basis, it cannot be said that the activity of the detenu has become a threat to the maintenance of 'public order' and 'public health'. Mere involvement of the detenu in such activity may not amount to dangerous activity by the detenu and mere mention of them, unless supported by any evidence, cannot be said to be material germane for the purpose of arriving at the subjective satisfaction that the activity of the detenu is prejudicial to the maintenance of 'public order' and 'public health'. In this connection, it will be fruitful to refer to a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], where the distinction between 'law and order' and 'public order' has been clearly laid down. The Court observed as follows:
"Does the expression "public order" take in every kind of infraction of order or only some categories thereof ? It is manifest that every act of assault or injury to specific persons does not lead to public disorder. When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or Page 7 of 8 C/SCA/17773/2013 JUDGMENT the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."
10. I am, therefore, of the view that the detaining authority has passed the order of detention without there being any credible or cogent material on record in this behalf. I have considered factual and legal aspects emerging from the record of the petition and considered the rival submissions and the facts of the case and also considered the judgment delivered in the case of Sohanlal Sujaram Visnoi (Supra) and Pushker Mukherjee (supra). In view of the facts and circumstances of the present case and also ratio laid down in the case mentioned above, the order of detention cannot be sustained and it deserves to be quashed and set aside.
11. In the result, this petition is allowed. The impugned order dated 25.9.2013 passed by the respondent authority under the provisions of the Gujarat Prevention of Anti-Social Activities Act, 1985 against the detenu is quashed and set aside. The detenu is directed to be set at liberty forthwith if not required to be detained in jail for any other purpose. Rule is made absolute with no order as to costs. Direct Service is permitted.
(S.H.VORA, J.) VATSAL Page 8 of 8