Gujarat High Court
Prakesh @ Gatti Manilal Thakor Throguh ... vs State Of Gujarat on 11 December, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/11793/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11793 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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PRAKESH @ GATTI MANILAL THAKOR THROGUH SHAKRIBEN MANILAL
THAKOR
Versus
STATE OF GUJARAT
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Appearance:
MS KD PARMAR(589) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3
MS JIRGA JHAVERI AGP (1) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 11/12/2020
ORAL JUDGMENT
1. This petition seeks to challenge the order of detention passed by the respondent authority being NUMBER/PCB/DTN/PASA/495(A)/2020 dated 18.7.2020 Page 1 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT terming the petitioner as a 'dangerous person' and directing him to be detained under the Gujarat Prevention of Anti- Social Activities Act, 1985 [for short, "the PASA Act"]. Pursuant to the said order he has been detained and is presently at Surat jail.
2. There are two offences registered against the petitioner under I.P.C. which have been depended upon by the authority concerned to arrive at the subjective satisfaction. One of them is registered at Amraiwadi Police Station, Ahmedabad for the offences registered under Section 395, 394, 114 of I.P.C and Section 135(1) of Gujarat Police Act being the I-C.R. No. 11191004200167 of 2020 and the second offence registered against the petitioner is dated 17.03.2020 before the Naroda Police station, Ahmedabad City for the offences punishable under Section 397, 395, 392, 114 of the I.P.C and Section 135(1) of Gujarat Police Act being the I-C.R. No. 11191035200312 of 2020. The dispute is between two private parties and there is no breach of public order according to the petitioner nor is there any threat to the society and therefore there was no reason to pass the order against the petitioner and hence, the order of detention deserves to be quashed.
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C/SCA/11793/2020 JUDGMENT
3. All cases are pending for trial and the Investigating Agency has not been able to recover or discover anything nor as there been any independent witness adduced is a young boy of aged 19 years. He being the only bread earner and the order of detention having been passed belatedly, the Court needs to intervene. Therefore, present petition with following prayer.
"12 (A) YOUR LORDSHIPS be pleased to allow this petition;
B) YOUR LORDSHIPS be pleased to pass any appropriate writ and/or writ of mandamus and/or writ of Habeas corpus be is-
sued and the order of detention dated 18.07.2020 passed by the Police Commissioner, Ahmedabad City may be set aside and the respondents be directed to set the detenue at liberty forth- with.
C) ..........."
4. This Court issued notice for final disposal on 28.9.2020 (Coram: Honourable Mr. Justice S.H. Vora) and the Court was directed to list the matter for final hearing in seriatim.
5. Today, the matter came up for hearing and the Court has heard the learned advocate Ms. K.D. Parmar for the petitioner who alone the line of the petition memo has argued fervently in favour of the petitioner. According to her there has been no challenge to the grant of the order of bail by the competent Court it was the regular bail granted to the petitioner and no challenge has been made by the State. Page 3 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021
C/SCA/11793/2020 JUDGMENT According to her the secret witnesses which are depended upon are the court of witnesses and their versions recorded are stereo type. She further has urged that unless the offences registered against the petitioner resulted to the conviction, it is still at the stage of suspicion and filing of this cannot furnish the ground for detaining the petitioner for a longer period who, is in the jail from 18.7.2020.
6. Learned AGP resisting this and has urged that the petitioner is a dangerous person by all means and the F.I.R. speak his activities which has caused the issues of public order. She further urged that there are secret witnesses also who are spoken clearly against him, therefore no interference is desirable.
7. Having, thus, heard both sides at length and also perusing the material placed before this Court. At the outset, the definition of the dangerous person as provided under Section 2(c) of the PASA Act shall have to be looked at. The law on the subject if is considered, he is 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 any of the offences punishable under some of the chapters of the Indian Penal Code or any of the offences punishable Page 4 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT under chapter V of the Arms Act, 1959. The order of detention under Section 2(d) is the order made under Sub- section (3) of the PASA Act., which authorizes the State Government to prevent a person from acting in any manner prejudicial to the maintenance of public order. If the State Government is satisfied that it is necessary to so do it, it can make an order directing such person to be detained. Sub- section (4) of Section 3 also will be vital to be regarded by the State at the time of passing such order. A person since is deemed to be acting in any manner prejudicial to the maintenance of public order when he is engaged in or is making preparation for engaging in any activities as a bootlegger or a dangerous person or a drug offender etc. which affect adversely the maintenance of public order. The explanation also states as to how the public order needs to be regarded which states that the same shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely if any of the activities of person referred in Sub-section (4) of Section 3 directly or indirectly, is causing 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. The law Page 5 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT on the subject of a dangerous person has been laid down by the Apex Court by its various decisions and what amounts to the public order has been dealt with extensively by this Court in SCA No. 9514 of 2020 dated 10.12.2020. The relevant observations by the Court, in the said decision dated 10.12.2020 in SCA No. 9514 of 2020 are as follow:-
"7.1 At the outset, the definition of the dangerous persons is required to be considered from the provisions of the PASA Act, which is provided under Section 2(C) of the PASA Act. A person, who either by himself or as a member or leader of a gang; during the period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under the IPC, is termed as a dangerous person under the Act, as provided under this Act or under any other Act. Thus, what is required of the person, who is termed as the dangerous person, is of his commission of offences, as provided in this definition and his habit of committing such offences.
7.2 Sub-Section (1) of Section 3 of the Act, empowers the State Government that, if, it is satisfied with respect to any person that with a view to prevent 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. Therefore, the same shall need to be regarded by this Court. Further, Sub-Section (4) of Section also shall need to be regarded by this Court, which provides, 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 a person is engaged in or is making preparation for engaging in any activities, whether, as a bootlegger or common gambling house 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. The explanation for the Page 6 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT purpose of this sub-section provides 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 this sub-section 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 fife, property or public health.
7.3 In this background, the Court shall also need to regard the decision of the Apex Court in the case of 'AMANULLA KHAN KUDEATALLA KHAN VS. STATE OF GUJARAT', AIR 1999 SC 2197, where, the Apex Court was considering as to who can be termed as the dangerous person or a habitual offender. In the matter before the Apex Court, the detaining authority on being satisfied from the activities of the detenu that he belongs to a notorious gang and the members of the gang hatched conspiracy to extort money from the people, by putting them under threat of fear of death, was satisfied that the detenu is a dangerous person within the meaning of Section 2[c] of the Act and the activities of the detenu and his gang members were such that for maintenance of public order it was necessary to detain the detenu and accordingly the order of detention against the detenu was passed. The Apex Court, on hearing both the sides, held that the subjective satisfaction arrived at by the respondent authority is just and thereby, it refused to interfere with the order of detention. The relevant observations read thus:
"3. The detaining authority on being satisfied from the activities of the detenu that he belongs to a notorious gang and the members of the gang hatched conspiracy to extort money from the people who are engaged in building construction business in the city by putting the people under threat of fear of death, was satisfied that the detenu is a dangerous person within the meaning of Section 2[c] of the Act and the activities of the detenu and his gang members were such that for maintenance of public order it was necessary to detain the detenu and accordingly the order of detention against the detenu was passed. Immediately after the order of detention was passed, the detenu approached the Gujarat High Court as already stated inter alia on the ground that the single activity of the detenu for which CR No. 36/97 under Sections 120-B, 387 and 506(2) IPC had been registered is not sufficient to hold him to be a dangerous person within the meaning of Section 2[c] of the Act and as Page 7 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT such the order of detention is vitiated. By the impugned Judgment, the High Court came to the conclusion that the satisfaction of the detaining authority was not based solely on the incident culminating in registration of the criminal case under Sections 120-B, 387 and 506(2) of the Indian Penal Code but also the incidents that happened on 26.7.98 and 2.8.98 about which the two witnesses have stated before the detaining authority and therefore, the satisfaction of the detaining authority, holding the detenu to be a dangerous person cannot be said to be vitiated.
4. Mr. Anil Kumar Nauriya, the learned counsel appearing for the detenu in this court reiterated the same contention namely that a single incident in which the detenu is alleged to be involved and for which the criminal case had been registered will not be sufficient to hold the detenu to be a dangerous person under Section 2[c] of the Act inasmuch as the expression dangerous person has been defined to be a person who either by himself or as a member or leader of a gang, during a period of three successive years, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVII of the Indian Penal Code or any of the offences punishable under Chapter V of the Arms Act, 1959. In other words according to the learned counsel unless the activities of the detenu considered by the detaining authority indicate that he has either habitually committed or attempted to commit or abet the commission of offence, cannot be held to be a dangerous person under Section 2[c] of the Act. The expression habitually would obviously mean repeatedly or persistently. It supplies the threat of continuity of the activities and, therefore, as urged by the learned counsel for the petitioner an isolated act would not justify an inference of habitually commission of the activity. In this view of the matter the question that requires adjudication is whether the satisfaction of the detaining authority in the present case is based upon the isolated incident for which the criminal case was registered or there are incidents more than one which indicate a repeated and persistent activity of the detenu. If the grounds of detention is examined from the aforesaid stand point, it is crystal clear that apart from the criminal case which had been registered against the detenu for having formed a gang and hatched a conspiracy to extort money from the innocent citizens by threatening them and keeping them under constant fear of death, the two witnesses examined by the detaining authority narrated the incident that happened on 26.7.98 and 2.8.98 in which the detenu was involved and on the first occasion a sum of Rs. 1 lac was demanded and when the person concerned refused, he was dragged and assaulted and on the second occasion a sum of Rs. 50 thousand was demanded and on refusal, the persons were dragged on the road and were beaten on the public road. It is not the grievance of the detenu that the statements of the aforesaid two witnesses had not been appended to the grounds of detention or had not been mentioned in the grounds of detention. In fact the grounds of Page 8 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT detention clearly mention the aforesaid state of affairs and there is no bar for taking these incidents into consideration for the satisfaction of the detaining authority that whether the person is a dangerous person within the ambit of Section 2[c] of the Act. We, therefore, fail to appreciate the first contention raised by the learned counsel for the petitioner that the satisfaction of the detaining authority that the detenu is a dangerous person is based upon the solitary incidence in respect of which a criminal case has already been registered. In our considered opinion the detaining authority has considered the three different incidents happened on three different dates and not a solitary incidence and, therefore, the test of repeatedness or continuity of the activity is fully satisfied and the satisfaction of the detaining authority holding the detenu to be a dangerous person is not vitiated in any manner. The contention of the learned counsel for the petitioner therefore stands rejected.
5. Mr. Anil Kumar, the learned counsel then urged that even if the activities of the detenu were sufficient to hold him to be a dangerous person yet an order of detention can be passed under the Gujarat Act only with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of the public order. By virtue of provisions contained in Sub-section (4) of Section 3 of the Act 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. Thus maintenance of public order is sine qua non for passing an order of detention under Section 3 of the Gujarat Act. But in the case in hand the alleged activities of the detenu are all in relation to violation of the normal criminal law and it has got no connection with the maintenance of public order and, therefore, the order of detention is vitiated. We are unable to appreciate this contention of the learned counsel for the detenu inasmuch as even an activity violating an ordinary legal provision may in a given case be a matter of public order. It is the magnitude of the activities and its effect on the even tempo of life of the society at large or with a section of society that determines whether the activities can be said to be prejudicial to the maintenance of public order or not. In MustakmiyaJabbarmiyaShaikh vs. M.M. Mehta, Commisioner of Police and Ors. 1995(3) SCC 237, it has been held by this court that in order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order, the fall out and the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with him or to prevent his subversive activities affecting the community at large or a large section of society. It is the degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines Page 9 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT whether the disturbance caused by such activity amounts only to a breach of law and order or it amounts to breach of public order. Applying the ratio of the aforesaid decision to the facts of the present case we find that the activities of the detenu by trying to extort money from ordinary citizens by putting them to fear of death and on their refusal to part with the money to drag them and torture them on public road undoubtedly affected the even tempo of life of the society and, therefore such activities cannot be said to be a mere disturbance of law and order. In our considered opinion the activities of the detenu are such that the detaining authority was satisfied that such activities amount to disturbance of public order and to prevent such disturbance the order of detention was passed. We, therefore, do not find any substance in the second contention of the learned counsel for the detenu. Mr. Anil Kumar then urged that the Advisory Board having not indicated that the detenu is to be detained for more than three months, has failed to discharge its constitutional obligation and there has been an infringement of Article 22(5) of the Constitution and in support of the same reliance has been placed on the decision of this court in A.K. Gopalan vs. The State of Madras, 1950 SCR 88 and the decision of this Court in John Martin vs. The State of West Bengal, 1975(3) SCR
211. At the outset it may be stated that the detenu had not made any such grievance in the writ petition that had been filed in the Gujarat High Court. That apart, the opinion of the Advisory Board to the State Government, rejecting the representation of the detenu and expressing its opinion with regard to the existence of sufficient cause for the detention of the detenu is not a part of the record and what is pressed into service by the learned counsel in support of his argument is the mere communication from the Section Officer of the Home Department dated 27th August, 1998, intimating the factum of the rejection of representation by the Advisory Board. Section
11 of the Act is the procedure for making reference to the Advisory Board and Section 12 provides the duties and obligation of the Advisory Board on the basis of materials placed before it. Under Sub-section (2) of Section 12 it is the requirement of law that the report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the detenu and this opinion of the Advisory Board has been furnished in the present case. We really fail to understand how a contention could be raised that the Advisory Board has failed to discharge its obligation and how the court would be entitled to examine the same without even the copy of the report of the Advisory Board being formed a part of the records of the present proceedings. In view of the counter affidavit filed in the present case that all the provisions have been duly complied with and in the absence of any material to support the arguments advanced by the learned counsel, we do not find any force in the contention raised alleging any infraction of provision of law in the opinion given by the Advisory Board and the said Board in rejecting the representation of the detenu. This contention therefore, is Page 10 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT devoid of force."
7.4 In case of 'SUBRAMANIAN VS. STATE OF TN & ANOTHER', (2012) 4 SCC 699; the Apex Court was considering the as to when would be the public order can be said to be disturbed. It denotes the tempo of the community, the use of the weapons and the damage caused to the public and private property, threatening public tempo and creating panic amongst the people in a locality and this was held sufficient to disturb the public order. The relevant observations are as under:
"9) With regard to the first submission that no case is made out for preventive detention by invoking the provisions of T.N.Act 14 of 1982, though the ground case incident arose out of a land dispute between the detenu and the de facto com-
plainant, however, the argument that it is only a law and order problem and that public order was not disturbed is contrary to the facts and equally untenable. As rightly pointed out by Mr. Guru Krishnakumar, the Detaining Authority, on consideration of materials placed has found that the accused caused dam- age to both public and private properties, threatened the public and also created a situation of panic among the public. In this regard, it is useful to refer the materials narrated in the grounds of detention which are as follows:
"On 18.07.2011, at about 10:00 hours, while Kaliyamoorthy was available in the STD booth, Kajamalai Kadaiveethi, Kajamalai, Tiruchirapalli city, the accused Kajamalai Viji @ Vijay armed with aruval, his associates Manikandan, Uthayan, Sathiya, Sivakumar armed with Kattas came there. The accused Kajamalai Viji @ Vijay abused Kaliyamoorthy in a filthy language, threatened to murder him with aruval by saying "Have you become such a big person to give complaints against me. You bastard, try giving a complaint, I will chop you down right here."
His associates threatened him with their respective kattas. Thereafter, the accused Kajamalai Viji @ Vijay caused damage to the glasses, chair and stool available in the shop. While Kaliyamoorthy questioned them, the accused Kajamalai Viji @ Vijay slapped him on the face. Kaliyamoorthy raised alarm for rescue. The general public came there and they were threatened by the accused Kajamalai Viji @ Vijay and his associates by saying "if anyone turns up as witness, I will kill them." The nearby shop-keepers closed their shops out of fear. Auto drivers took their autos from the stand and left the place. The situation created panic among the public. On the complaint of Kaliyamoorthy, a case in K.K. Nagar P.S. Cr. No. 361/2011 u/s 147, 148, 447, 448, 427, 294(b), 323, 506(ii) IPC and 3 P.P.D. Act was registered." Page 11 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021
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10) From the above materials, the Detaining Authority was sat- isfied that the detenu is habitually committing crimes and also acting in a manner prejudicial to the maintenance of public or- der and as such he is a `goonda' as contemplated under Sec- tion 2(f) of the T.N. Act 14 of 1982. The order further shows that the Detaining Authority found that there is a compelling necessity to detain him in order to prevent him from indulging in such activities in future which are prejudicial to the mainte- nance of public order. After narrating the details of the ground case and after adverting to earlier instances commencing from the years 2008 and 2010, the Detaining Authority has con- cluded as under:-
"Hence, I am satisfied that the accused Kajamalai Viji @ Vijay is habitually committing crimes and also acting in a manner prejudicial to the maintenance of Public order and as such he is a Goonda as contemplated under Section 2(f) of the Tamil Nadu Act No. 14 of 1982. By committing the above described grave crime in a busy locality cum business area, he has created a feeling of insecurity in the minds of the people of the area in which the occurrence took place and thereby acted in a manner prejudicial to the maintenance of public order."
11) It is well settled that the court does not interfere with the subjective satisfaction reached by the Detaining Authority ex- cept in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the Detaining Au- thority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the Court but for the Detaining Authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down ob- jective rules of conduct in an exhaustive manner. The satisfac- tion of the Detaining Authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion."
7.5 Reliance is also placed on the decision of this Court in Special Civil Application No. 6414 of 2020, Dated : 12.06.2020, where, the Court was considering the question of detaining authority having termed the petitioner as the dangerous person under Section 2(C) of the PASA Act. Relying on the decision of the Apex Court in 'PUSHKER MUKHERJEE V. STATE OF WEST BENGAL', AIR 1970 SC 852, 'DR. RAM MANOHAR LOHIA V. STATE OF BIHAR & OTHERS', (1966) 1 SCR 709 and 'DARPAN KUMAR SHARMA Page 12 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT ALIAS DHARBAN KUMAR SHARMA V. STATE OF T.N. AND OTHERS', AIR 2003 SC 971 and other decisions, the Court held that the detaining authority failed to substantiate the aspect that the alleged anti-social acts of the petitioner-detenu adversely affected or likely to adversely affect the maintenance of public order. Profitable, it would be to reproduce the relevant observations, which read thus:
4. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the breach of public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section2(c) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(c) of the Act. Except general statements (two FIRs), there is no material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order. In this connection, it will be fruitful to refer to a decision of the Hon'ble Supreme Court in Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852,where the distinction between 'law and order' and 'public order' has been classically laid down, which is as under:
"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 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."Page 13 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021
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5. The distinction between "public order" and "law and order"
has been carefully defined in a Constitution Bench judgment of the Hon'ble Supreme Court in the case of Dr. Ram Manohar Lohia v. State of Bihar & Others,(1966) 1 SCR 709. In this judgment, His Lordship Hidayatullah, J. by giving various illustrations clearly defined the "public order" and "law and order". Relevant portion of the judgment reads as under:
"....Does the expression "public order" take in every kind of disorder or only some? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. Amere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(l)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles.
Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State...."
6. In Darpan Kumar Sharma alias Dharban Kumar Sharma v. State ofT.N. and others, reported in AIR 2003 SC 971, the Hon'ble Supreme Court made the following observations:
"The basis upon which the petitioner has been detained in the instant case is that he robbed one Kumar at the point of knife a sum of Rs.1000/-. Any disorderly behaviour of a person in the public or commission of a criminal offence is bound, to some extent, affect the peace prevailing in the locality and it may also affect law and order but the same need not affect maintenance of 'Goonda' the acts prejudicial to public order are 'when he is engaged, or is making preparations for engaging, in any of his activities as a goonda which affect Page 14 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT adversely, or are likely to affect adversely, the maintenance of public order'. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act upon the society; that a solitary assault on one individual can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act providing for preventive detention."
7. In Siddharth @ Sindhu Laxmanbhai Thorat v. District Magistrate,Navsari, in Letters Patent Appeal No.1020 of 2019 dated 08.05.2019, this Court has made following observations:
"8. Having regard to the facts and circumstances of the case, We find that though there are powers available under section 3(1) of the Act, ordinary law of Indian Penal Code under which FIRs are registered in four offences for which punishment is prescribed in the Indian Penal Code, is sufficient and order of detention cannot be passed as a short cut to exhaust such remedy. Ordinarily, this Court will be loath in interfering with subjective satisfaction of the detaining authority. While arriving at subjective satisfaction, the detaining authority is supposed to undertake objective assessment of the material available. In this connection, we may refer to the judgment of this Court in Letters Patent appeal No.2732 of 2010, dated 28.3.2011 in the case of Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2others, wherein, this Court has quoted the observations made by Apex Court in the case of Pushker Mukherjee vs. State of West Bengal, reported in AIR 1970SC 852, wherein distinction is drawn between public order and law and order. The Supreme Court observed in the said judgment as under:
"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 ofordinary 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 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 Page 15 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT will affect public order comes within the scope of the Act."
8. It is also fruitful to refer to the judgment of the Hon'ble Supreme Court in the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, wherein, the Hon'ble Supreme Court has observed as under:
"... Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act...."
9. Further in the case of Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta,Commissioner of Police and Others, 1995 (2) GLR 1268 observed as under:
"8. The Act has defined "Dangerous Person" in clause (c) of section 2 to mean 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 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. The expression 'habit' or 'habitual' has, however, not been defined under the Act. According to The Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), p.499, 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. The word 'habitually' means 'usually' and 'generally'. Almost similar meaning is assigned to the words 'habit' in Aiyar's Judicial Dictionary,10 th Edn., p. 485. It does not refer to the frequency of the occasions but to the invariability of practice and the habit has to be proved by totality of facts. It, therefore, follows that the complicity of a person in an isolated offence is neither evidence nor a material of any help to conclude that a particular person is a "dangerous person" unless there is material suggesting his complicity in such cases which lead to a reasonable conclusion that the person is a habitual criminal. In Gopalanchari v. State of Kerala, AIR 1981 SC 674, this Court had an occasion to deal with expressions like "bad habit", 'habitual', 'desperate', 'dangerous', and 'hazardous'."
7.6 In 'Mustakmiya Jabbarmiya Shaikh'(Supra), the Court examined the expression 'habit' or 'habitual' offender to held that Page 16 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT 'habitually' means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. However, it does not refer to the frequency of the occurrence and invariably the practice and the habit. 7.7 This Court in Special Civil Application No. 8592 of 2020 also was considering the case of the petitioner, who was detained under Section 2(C) of the PASA Act as a dangerous person, on the basis of the criminal case registered against him for the offence under the Disaster Management Act, on the ground that the activities of the petitioner was affecting the maintenance of the public order and the order under challenge was not upheld. While so doing, the Court relied on the decision of 'DR. RAM MANOHAR LOHIA' (Supra). 7.8 In Commissioner of Police V. C.Anita(Smt.) (2004) 7 SCC 467, the Apex Court examined the issue of 'public order' and 'law and order' to hold and observe thus:
...."the crucial test is whether the activities of the detenue were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'public order' has a narrower ambit, and public order could be affected by only such contravention which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of law and order and public order is one of the degree and extent of the reach of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of the public, it would raise problem of law and order only. It is the length, magnitude and intensity of terror waves unleashed by a particular eruption of disorder that helps to distinguish it as an act affecting public order from that Page 17 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT concerning law and order. The question to ask is:
' Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed?
This question has to be faced in every case on its facts."
7.9 As can be noticed from the decision of the Apex Court in 'PUSHKER MUKHERJEE' (Supra), it is not a case of two people quarreling and fighting with each other either in their house or in the streets, and therefore, there was disorder, but, not public disorder.
Such cases are dealt with the ordinary criminal laws and obviously, no person could have been detained on the ground that they were disturbing public order. Such contravention of the law would always vitiate the order, as is held by the Apex Court. But, before it is said to have affected the public order, it must affect the public at large. Therefore, the Court has drawn a line, demarcating between serious and grave danger and injury to the public interest and relatively minor breach of peace of purely local, which is primarily of local and is not likely to affect the public order. It would be vital for this Court to consider, as to whether, it can be said to be mere disturbance of law and order, leading to disorder, as provided under the PASA Act. 7.10 The public order, as held in case of 'ARUN GHOSH' (Supra), is said to embrace more of the community than law and order. The Court even went to an extent to state that public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility."
8. Reverting to the facts in the matter on hand, the FIR of the Amraiwadi Police Station of 17.3.2020 by one trader from Page 18 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT Utter Pradesh who has his shop at Maharaj Ganj Market resided at Amraiwadi with his wife and children. On 15.3.2020 when he arrived at Ahmedabad by Sabarmati Express at around 2.00 o'clock in the night and alighted at Maninagar Railway Station while going on his feet to Amraiwadi, an auto rickshaw passed by and the driver stopped after turning it back. Unknown persons alighted and threatened and scared him with the threat of life through deadly weapon knife, pushed him and took out his mobile phone, money he had in his pocket, his bag and all the articles that he had with him. The report of Surveillance and the panchnama details pointed out the connection of the accused with the crime in question. It is not for the Court right now to evaluate the evidence as matter is still pending before the competent Court. Suffice to note that prima facie there appears to be the material to connect this person with the crime registered in question. The trial Court has granted the regular bail considering the young age and also the possibility of the trial concluding with much delay. It is to be noted that the all the co-accused have been granted regular bail by the Court with certain terms and conditions.
9. Yet another F.I.R. which has been depended upon by the Page 19 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT authority concerned for arriving at subjective satisfaction is of Naroda Police Station. The complainant has alleged in the said complaint that on 11.3.2020 at mid night, while he was returning from his job and going home, he saw a truck which was going towards his residence and in absence of any other mode of communication, he had boarded the truck so as to reach to his place and at that stage, one CNG auto rickshaw had followed the said truck. It was a lonely place and one person continued to drive auto rickshaw and the truck was not only intercepted but, other person approached the driver and had shown him knife and he was threatened with dire consequences and driver's mobile phone was taken away. The complainant was also shown the knife and was asked to handover all his valuables, his mobile and money whatever he had. He was extremely petrified and he gave away his mobile, his purse, tifin, and other testimonials which he had carried with him. All the three then had set in the auto rickshaw and went away. The complainant also went and extent of saying that before the Court of law, he would in the position to recognize those persons.
10. It is well settled that the court does not interfere with the subjective satisfaction reached at by the detaining Page 20 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT Authority except in exceptional circumstances and on extremely limited grounds. The Court is not to substitute its own opinion for that of the Detaining Authority when the grounds of detention are precise, pertinent, proximate and relevant, as per the decision of the Apex Court in case of Subramanium vs. State of Tamil Nadu 2012 (4) SCC 699. The Apex Court also has held that the object of the law of preventive detention is not punitive but only preventive and the action of the executive in detaining a person being only precautionary, ordinarily such matters are to be left to the discretion of the executive authority. The objective rules of conduct in an exhaustive manner are also not possible to be laid down. The satisfaction of the Detaining Authority is considered to be of the primary importance with certain latitude in exercise of the discretion. While so holding the Court is also conscious that there is a demarcation between the law and order and the public order. The Apex Court in series of decisions recognized that the public order is even tempo of life of the community taking the country as a whole or even a specified locality. At this stage, it is appropriate to take into account the observations made by Apex Court in case of Subramanium (supra) which are as follows:- Page 21 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021
C/SCA/11793/2020 JUDGMENT "15) The next contention on behalf of the detenu, assailing the detention order on the plea that there is a difference between `law and order' and `public order' cannot also be sustained since this Court in a series of decisions recognized that public order is the even tempo of life of the community taking the country as a whole or even a specified locality. [Vide Pushpa Devi M. Jatia vs. M.L. Wadhawan & Ors., 1987 (3) SCC 367 paras 11 & 14; Ram Manohar Lohia vs. State of Bihar (1966) 1 SCR 709; Union of India vs. Arvind Shergill & Anr. 2000 (7) SCC 601 paras 4 & 6; Sunil Fulchand Shah vs. Union of India & Ors. 2000 (3) SCC 409 para 28 (Constitution Bench); Commissioner of Police & Ors. vs. C. Anita (Smt), 2004 (7) SCC 467 paras 5, 7 & 13]."
11. If one analyses the decision of the detaining authority in relation to the order under challenge, it is quite apparent in these matters that the detenue along with his associates armed with the knife had intercepted the complainant in the first matter and he was abused and threatened to murder. Other associates of his also had threatened the person and thereafter they all had looted the complainant, all his belongings and then, had fled away from the scene of offence. Later on, the police recovered all those items from the detenue and the others. Their very mode and manner of looting indiscriminately passengers and common man who are compulsorily out due to travel schedule or because of job profile and timings, make the society so very unsafe and perilous. These life threatening experiences of some also further have consequential effects in the surroundings and in those localities, causing the issue of public order with such Page 22 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT hazardous and toxic behaviours.
12. It is also to be noted that in the second FI.R. again as detailed herein above, at midnight, the complainant was returning from his job when he boarded the truck for reaching to his residence in absence of any other transport, they had followed in auto rickshaw the said truck and having seen the lonely area had looted truck driver and also the complainant and money, wallet and all other belongings had been taken away. As held in the case of Subramanium (supra), what is to be regarded is not only the act having caused the law and order problem, but, a public order in assessment of the detaining authority which is supposed to safeguard and protect the interest of public. It has been arrived at on the basis of the material placed before it, this Court should be slow in intervening. It is true that the grant of bail in favor of the detenue has not been challenged by the authority which otherwise the State could have done even at the time of considering invocation of the powers under Sub-section (1) of Section 3 of the PASA Act. In the opinion of this Court, that by itself would and should not weigh with the Court. In view of the detailed analysis made by the Court in the said decision, it is to be noted at this stage that before the Apex Page 23 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021 C/SCA/11793/2020 JUDGMENT Court also there were certain decisions pressed into service where it has been held that there could not be any quarrel as the preposition of law and the decisions relied upon by the learned Counsel for the detenue they were held to be inapplicable as being distinguished and more particularly, in view of the factual details stated in the impugned detention order, the incidence which have been highlighted in the ground of detention coupled with the indication as to the impact thereof as are stated in the grounds of detention, the Court is of the opinion that the subjective satisfaction arrived at by the detaining authority to hold as to how the acts of the detenue are prejudicial to the maintenance of public order which may be even restricted to the particular locality, deserves no interference. The court cannot be oblivious of the fact that these elements do not allow the society to be safe. With their modus operandi, in absence of any personal enmity, there is no targeted group of victims. Their tentacles being spreaded in every direction wherever there is an easy prey and vulnerable victims, even when their areas of operation is limited to the city of Ahmedabad, decision of the detaining authority deserves no interference due to the chilling effect it causes for all those peace loving citizens. Page 24 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021
C/SCA/11793/2020 JUDGMENT Resultantly, the petition is accordingly dismissed. Notice is discharged. Ad-interim / interim relief, if any, stands vacated forthwith.
Sd/-
(SONIA GOKANI, J) MISHRA AMIT V./SURESH Page 25 of 25 Downloaded on : Mon Mar 01 02:05:38 IST 2021