Gujarat High Court
Irshadbhai @ Bhuriyo @ Manjro ... vs State Of Gujarat on 3 December, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/9566/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9566 of 2020
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IRSHADBHAI @ BHURIYO @ MANJRO SATTARBHAI MALEK THROUGH
HIS BROTHER MALEK ABDULGFAR SATTARBHAI
Versus
STATE OF GUJARAT
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Appearance:
ARBAAZKHAN A PATHAN (9532) for the Petitioner(s) No. 1
MOHAMADZAID I SAIYED(8411) for the Petitioner(s) No. 1
MS JIRGA JHAVERI, AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 03/12/2020
ORAL ORDER
1. Leave to amend permitted in para 5(c) in correcting the date of CR.NO.I-9 of 2019 and date of CR.No.I-37 of 2019.
2. This petition preferred under Article 226 of the Constitution of India questioning the detention order bearing no.PASA/S.R./11/ 2020 dated 12.03.2020 passed under Sub section (1) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as PASA).
3. The petitioner is detained at Palara Bhuj, jail Bhuj (Kutch) as a Class-2 detenue by virtue of an order passed by the respondent no.2 who prevented acting in any manner prejudicial to the maintenance of public order in exercise of powers conferred under the PASA Act. The petitioner already questioned the same before the PASA Board which has not interfered with the same.
Page 1 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER4. He has approached this Court urging interalia that he is alleged to have been detained on the ground that he is a 'dangerous person' and his activities are prejudicial to the maintenance of the public order. Assuming that the petitioner is a dangerous person within the meaning of Section 2 (C) of the PASA Act, as averred in the petition, merely because he is a dangerous person, he cannot be detained under the provisions of the said act unless his activities affect adversely the maintenance of the public order as provided under Subsection (4) of Section 3 of the Act.
5. The order of the detention is passed on the basis of three offences registered at Khambhat Police Station being I-CR.No.8 of 2019 for contravention of the provisions under Sections 143, 147, 148, 149, 336, 337, 332, 333, 307, 435, 436, 427, 429, 452, 352, 353 117, 118, 504 of the IPC and Sections 3 and 4 of the Damage to the Public Property on 24.02.2019 (2) CR.No.-I-9 of 2019 registered at Khambhat Police Station for the provisions of Sections 143, 147, 148, 149, 307, 323, 341,427, 504 of the IPC on 25.02.2019 and (3) CR.NO. I-37 of 2019 registered at Khambhat City Police Station to the contravention of Sections 332, 186, 193, 294(b), 506(2) and 113 registered on 3.07.2019.
6. On the ground that there is nothing found against the petitioner for proceeding against him and arresting him under the serious law of the detention and also on the ground that the order of detention has been passed belatedly, as the order of detention is of 12.03.2020, this itself is a ground to interfere. Again it is urged that there is nothing to actually conclude of any difficulty in maintaining the public order nor has it been established that the activities of the applicant had affected public order or has tendency of affecting life of the community. There being a compete non application of mind on the part of the detaining authority in reaching to the subjective Page 2 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER satisfaction in passing an order and holding him as 'dangerous person' under Section 2(c) of the PASA Act, the present challenge is made.
7. It is further urged that there is nothing done by the authority concerned for moving any application for cancellation of bail under Section 437(5) or 439(2) of the Code of Criminal Procedure. If there was in-fact any genuine apprehension, the material which has been relied upon also is insufficient and violative of principles of natural justice and the fundamental rights guaranteed under the provisions of Constitution of India.
8. The petitioner under the above referred circumstances, has approached this Court with following prayers:
"A) Your Lordship may be pleased to issue appropriate writ, direction or order quashing and setting aside the detention order No.PASA /S.R./11/2020 dated 12.03.2020. Actual date of Detention:09.07.2020 and the respondents be directed to set the petitioner at liberty forthwith.
B) That Your Lordship may be pleased to release the petitioner from his detention pending the admission, hearing and final disposal of this petition.
C) That Your Lordship may be pleased to grant such other and further order or relief as deemed fit and proper in the interest of justice."
9. Rule came to be issued on 19.08.2020(CORAM:
J.Mr.A.G.Uraizee) and the matter has been listed for final hearing.
9.1 Learned advocate Mr.Arbaazkhan Pathan for the Page 3 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER petitioner and learned AGP Ms.Jirga Jhaveri have been heard at length.
9.2 According to learned advocate Mr.Arbaazkhan Pathan, the very invocation of law of detention is contrary to the well settled law on the subject as the subjective satisfaction arrived at by the authorities is based on virtually no material. In absence of anything to indicate that the activities of the petitioner had led to any subversive activities and also jeopardized the public peace and tranquility, is unsustainable. He has been bailed out in all the three offences and in absence of any recovery or discovery and also in absence of TI parade, there is no likelihood of his being convicted by the court, once the trial takes place. He admits that the trial has so far not been initiated and without his being held guilty, the authority concerned could not initiate actions which are so stringent. He has further made a grievance that there had been substantial delay in invoking the powers of PASA after the last offence in which he was already granted regular bail by the Court. It is further his say that delay itself is fatal as per the Hon'ble Supreme Court's decision in case of Saiyed Zakhir Hussain Malik v/s State of Maharashtra.
10. He further submits that the matters were in quick succession and two of the matters were arising from one incident only at Khambhat City. He has not been named in the FIR also and therefore so much of gravity of the entire incident could not have been made by dragging him into such serious consequence.Page 4 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER
11. Learned AGP Ms.Jhaveri has strongly objected to this petition on the ground that the order of the authority shall need to be upheld as the same is based on sufficiently adequate material collected against the present petitioner.
She has also urged that all the three offences are in quick succession and ordinary law was not effective in containing his activities which were not only against individuals but were deleterious for the society and also affected the public order and therefore also no interference is needed. The scrutiny which is required from this Court is of the material which was sufficient for the authority to arrive at the subjective satisfaction and the same has been done aptly. She agreed that there has been no challenge made by the authority to the order of release of the present petitioner but that itself may not be the ground as many a times, the authority which decides invocation of the PASA and the one that decides to challenge the order of release are separate and distinct. She has taken the Court through various statements recorded against the present petitioner and the role attributed to him, to urge that the activities of his area serious threat to the public tranquility and peace at Khambhat and innocent people are also seriously affected due to the action of the present petitioner.
12. Having thus heard both the sides as also having carefully examined the material on the record, the scrutiny which the Court needs to make is as to whether the subjective satisfaction arrived at by the authority concerned from the material collected against the present petitioner was justifiable or not. The definition of a 'Dangerous person' Page 5 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER under the PASA Act under Section 2(c) provides thus:
"(c) "dangerous 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 any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959;"
13. The person who either by himself or as a member of leader of gang habitually commits or attempts to commit any of the offence punishable under the India Penal Code or any of the offences punishable under Chapter 5 of the Arms Act. Section 3(1) of the PASA ACT empowers the State Government to make order detaining such a person's if it satisfied with respect to any person with a view to prevent him from acting in any manner prejudicial to the maintenance of public order it is necessary to so do it, it can make an order directing that such a person to be detained. Subsection (4) of Section 3 provides that for the purpose of such section the a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged or making preparation for engaging in any activities whether as bootlegger or as common gambling or as dangerous person or drug offender etc. which affect adversely or is likely to affect adversely the maintenance of public order the explanation to this provision says that the public order shall be deemed to have been affected adversely or is likely to be affected adversely interalia if any of the activities of any person referred to in this Subsection directly or indirectly is causing or is likely to cause any harm, danger or alarm or feeling of insecurity amongst the general public or any section thereof or a graver wide Page 6 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER spread danger to the property or a public. What amounts to being a habitual person and whether the activities of a person concerned is prejudicial to the maintenance of public order whereby it causes any harm danger or alarm or feeling of insecurity amongst the general public or such act either affects or is likely to affect adversely on account of the activities of such a person can thereby causing serious alarm or feeling of insecurity shall need to be considered by the authority.
The Apex Court in case of Subramanian V/s State of Tamil Nadu reported in 2012 (4) SCC 69 was considering whether the subjective satisfaction arrived at by the Commissioner of Police who passed detention order against the detenue under Section 3 of the Tamilnadu Prevention of Dangerous Act, 1982 while holding a detenue to be a Gunda, noticing his involvement was justifiable or not. The Apex Court noticed from the material that the detaining authority was satisfied that the detenue is habitually committing the crime and also acting in a manner prejudicial to the maintenance of the public order and as such was under the definition of Goonda contemplated under Section 2(f) of the Tamilnadu Act, 1982. The order showed that the detaining authority found that there was a compelling necessity to detain him in order to prevent him from indulging him in such activity in future and then were prejudicial to the maintenance of public order. After narrating the details of earlier instances of 2008 and 2010, the authority concerned had concluded that he was habitually committing crimes and therefore, feeling of insecurity was prevalent in the minds of the people in the area in which the occurrence took Page 7 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER place had arisen and thereby, he acted in a manner prejudicial to the maintenance of public order. The Court, therefore, held that it is settled law that the Court does not interfere with the subjective satisfaction reached by the detaining authority except on exceptional and limited grounds as the Court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant. Sufficiency of the ground is not for the Court to examine and evaluate but for the detaining authority for the subjective satisfaction that the detention of the person is with a view to prevent him from acting in any manner prejudicial to affecting the public order is required under such subjective satisfaction 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 the person being only precautional normally the matter would discretion of the execution authority. The Court also said "it is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority therefore is considered to be of primary importance with certain latitude in exercise of its discretion. The Apex Court also considered the contention raised on behalf of the detenue as link the detention order that there is attention between the "law and order" and "public order." By relying on series of decisions which recognize that public order is the even tempo of life of the community taking a country as whole or even specified locality, the Apex Court on examination of the material on record did not accept the contention that the detaining authority had incorrectly termed it as Page 8 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER problem of public order and there was a non application of mind by detaining authority. Apt would be to reproduce the relevant findings and observations hereinunder:
"14. It is well settled that the court does not interfere with the subjective satisfaction reached by the Detaining Authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the Detaining Authority 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 objective rules of conduct in an exhaustive manner. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion.
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.
16. We have already extracted the discussion, analysis and the ultimate decision of the Detaining Authority with reference to the ground case dated 18.07.2011. It is clear that the detenu, armed with `aruval', along with his associates, armed with `katta' came to the place of the complainant. The detenu abused the complainant in filthy language and threatened to murder him. His associates also threatened him. The detenu not only threatened the complainant with weapon like `aruval' but also damaged the properties available in the shop. When the complainant questioned the detenu and his associates, the detenu slapped him on his face. When the complainant raised an alarm for rescue, on the arrival of general public in and around, they were also threatened by the detenu and his associates that they will kill them.
.
17. 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 shop keepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the Detaining Page 9 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER 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 learned senior counsel for the appellant.
18. The next contention relates to nonapplication of mind by the Detaining Authority in respect of the bail obtained by the detenu. Learned AAG, by drawing our attention to the factual details narrated in the grounds of detention and in the counter affidavit submitted that such argument is factually incorrect. A contention has been raised that the accused had obtained regular bail in all the criminal cases referred to in the detention order and not anticipatory bail as noted therein, and therefore, there is nonapplication of the mind to the relevant material by the Detaining Authority.
19. As rightly pointed out by learned counsel for the State, the said claim is factually incorrect. It is also brought to our notice that the said submission was made only now before this Court as an afterthought. A perusal of the impugned order of the High Court clearly shows that the only contention before the High Court was that the detenu got regular bail in Crime No. 727 of 2010 but the Detaining Authority has wrongly mentioned the same as anticipatory bail. Further, no specific ground has been raised in the SLP. The only ground is that the copy of the anticipatory bail order in Crime No. 727 of 2010 was not given to the detenu which is also contrary to the record since it is specifically stated so in the detention order and averred in the counter affidavit that all the materials were duly furnished to the detenu. There is no denial of the same by filing rejoinder. Further, it is pointed out that the detenu had obtained anticipatory bail in the cases referred to in the detention order including in Crime No. 727 of 2010, accordingly, the said contention is also liable to be rejected... "
14. When it was argued on behalf of the counsel of the appellant before the Apex Court that the case is relied on by the detaining authority were stale the Court had perused the entire grounds of detention to find that the case on hand before the Apex Court related to the occurrence of July 2011 and prior to that, the detenue was involved in two cases in 2010 and one in year 2008 which Page 10 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER according to the Court was sufficient ground to show that the detenue is a habitual offender and as such, the instance is shown as not so stale as argued. He also had indulged into two cases within a span of six months and again, in the year 2010 and 2011.
"23. Finally, learned senior counsel for the appellant submitted that the cases relied on by the Detaining Authority are stale. In order to answer this contention, we once again perused the entire grounds of detention. The ground case relates to the occurrence dated 18.07.2011 and prior to that, the detenu was involved in two cases in the year 2010 and one case in the year 2008. The above details clearly show that the detenu was a habitual offender and as such instances shown are not stale as argued by the learned senior counsel for the appellant. These aspects have been taken note of by the High Court, in fact, the High Court has found that the detenu had indulged in one case in the year 2008 and two cases in the year 2010 and the ground case in 2011. The particulars also show that in the year 2010, the detenu had indulged in two cases within a span of 6 months and again had indulged in the ground case in the year 2011, therefore, incident nos. 2 and 3 cannot be said to be stale and, in such circumstance, the conclusion of the Detaining Authority that the detenu was a habitual offender cannot be considered to be based on stale instances.
24. The incidents have been highlighted in the grounds of detention coupled with the definite indication as to the impact thereof which have been precisely stated in the grounds of detention mentioned above. All the incidents mentioned in the grounds of detention clearly substantiate the subjective satisfaction arrived at by the Detaining Authority as to how the acts of the detenu were prejudicial to the maintenance of public order. All these aspects have been considered by the High Court which rightly affirmed the detention order.
25. In view of the above conclusion, while there is no quarrel as to the proposition of law in the decisions relied on by the learned senior counsel for the detenu, namely, Commissioner of Police (supra), Union of India vs. Paul Manickam & Anr., (2003) 8 SCC 342, M. Ahamedkutty vs. Union of India and Another, (1990) 2 SCC 1, the same are inapplicable as being distinguished, more particularly, in view of the factual details stated in the impugned detention order, we are not referring to those decisions in detail."Page 11 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER
15. One vital decision which requires reference at this stage is of Amanulla Khan Kudetulla Khan Pathan V/s State of Gujarat reported in 1999 (5) SCC 13. The detenue before the Apex Court was detained by the detaining authority under Section 3(2) of the PASA Act who approached this Court for quashing the order of detention. The said application was dismissed by this Court by a judgment and order and therefore, he approached the Apex Court challenging his detention under the several grounds. The detaining authority on being satisfied from the activities of the detune that he being a member of a notorious gang and the members of the gang hatched a conspiracy to extort money from those who were engaged in building construction business in the city by putting the people under the threat of fear or death, was satisfied that the detenue is a dangerous person within the meaning of Section 2(c) of the PASA Act and the activities of his and his gang members were of such a nature that maintenance for public order was gravely endangered and jeopardized and it was necessary to detain the detenue under the law of detention and accordingly, the order of detention against him was upheld.
16. The detenue approached this Court on the ground that as single activity of the detenue for which already FIR was lodged under Section 120(b), 387 and 506(2) of the IPC was insufficient to hold him as dangerous person and such order of the detention needs to be declared as vitiated. 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 Page 12 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER but also the incident has happened in the month of July 1998 and august 1998 for which two witnesses had stated about such incidence of notoriety before the detaining authority and the satisfaction of the detaining authority holding the detenue as dangerous person cannot be said to be vitiated. It was argued before the Court that the expression habitually would obviously mean repeatedly or persistently it supplies the threat of continuity of the activities and therefore as urged by the detenue an isolated act would not justify in interference of the habitual commission of this activity. Therefore, the question that requires adjudication was whether satisfaction of the detaining authority in the matter before the Apex Court was based upon an isolated incident for which the criminal case was registered or there were incidents more than one which indicated repeated and persistent activity of the detenue. The Court wants to ask to examine the grounds of detention to urge that it was a solitary offence, however the Court had taken note of the other incidents which have been recorded by the confidential witnesses to hold that the detenue was dangerous person and the satisfaction of the detaining authority was not based upon the solitary incident in respect of the criminal cases which had been registered.
17. Yet another issue that has been raised before the Apex Court is that even if the activity of detenue was sufficient to hold him as a dangerous person the order of the detention can be passed under the PASA Act only with a view to prevent detenue, acting in any manner prejudicial to the maintenance of the public order and by virtue of the Page 13 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER provisions contained under Subsection (4) of the Section 3 of the Act which provides that a person shall be deemed to "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 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 and thus the maintenance of public order is sine qua non for passing an order of detention under Section 3 of the Act." It was further argued that in the matter before the Apex Court the alleged activities of the detenue were in relation to violation of normal criminal law and it has got no connection in the maintenance of public order and therefore the order of detention is vitiated the Court held thus, "we are unable to appreciate the contention of the learned counsel for the detenue in as much as even 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 the 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 the public order or not.
18. "In Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commisioner of Police and Ors. 1995(3) SCC 237, it has been held by this court as under:
"In order to bring the activities of a person within the expression of acting in any manner prejudicial to the maintenance of public order, Page 14 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 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 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 Page 15 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER 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 Page 16 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER 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 devoid of force."
19. Yet another ground raised before the Apex Court was to the effect that the grounds of detention though indicated that the activities are such that it cannot be dealt with by the Bombay Police Act but no reasons had been given and therefore it was merely a sedexy of the detaining authority and on that scope the order detention was vitiated. The Court did not accept the detention by holding thus, "the satisfaction of the detaining authority on consideration of the activities of the detenue and on owing an opinion that the activities are such which affect the maintenance of public order and as such it is necessary to put detenue under the detention cannot be interfered with by the Court of law on mere assertion of the detenue. It is not required Page 17 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER to be stated in the grounds of detention as to why the detaining authority has formed the opinion that the activities in question cannot be adequately dealt with under the provision of preview along with the provisions of Bombay Police Act. We see no uniformity that the order or with the subjective satisfaction arrived at by the detaining authority, requiring the detenue to detained under the act on that score. We, therefore, have no hesitation to reject the said submission of the learned counsel for the petitioner. In the aforesaid premises all the contentions raised having failed, criminal appeal by grant of special leave arising out of judgment of Gujarat High Court as well as the writ petition filed under Article 32 of the Constitution failed and dismissed."
20.Based on this decisions, the contentions raised by the learned counsel before this Court shall need to viewed on the basis of subjective satisfaction arrived at by the authority concerned here it is not the solitary offence on the basis of which the authority has termed him as a dangerous person under Section 2(c) of the PASA Act. The expression habitually as held by Apex Court would naturally mean repeatedly or persistently it also speaks of the threat of continuity of the activities therefore the question that arises as to whether the subjective satisfaction of the detaining authority whether was based on isolated incident or whether there were other criminal cases registered and incident were more also which indicated a repeated in personal activity of the detenue. Not only from the grounds of detention examined from this angle but it is also clear from the order under Page 18 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER challenge that there are three criminal cases in quick succession which have been registered against the detenue for his complicity as has been apparent from various documents speaking of the version of witness as well as other material not only from these registered FIRs but also from the examination of the secret witnesses by the detaining authority. It is pointed out that the person has participated in the act of rioting and has also attempted to damage the persons and the properties the grounds of detention also clearly mention that his activities as dangerous person gets clearly covered under the ambit of Section 2(c) of the PASA Act. The subjective satisfaction of the detaining authority is not based on solitary incident but also on repeated things which are apparently on the record, three incidents and moreover the other narrated by the witnesses and therefore, the test of continuity of the activity gets satisfied for the detaining authority to arrive at the subjective satisfaction for holding the detenue as dangerous person as the same was vitiated in any manner. So far as considering the Subsection (4) of Section 3 is as to whether his such act and his acting is in any manner prejudicial to the maintenance of public order and whether his activities as a dangerous person was affecting or is likely to affect the maintenance of public order, as held by the Apex Court his activities even if in relation to the violation of normal criminal law as can be noticed from the registered offences against him, even the activities violating in the ordinary provisions can also be a matter of public order as it is the magnitude of the activities and it is the said effect on the tempo of life of the society at large or with a section of the society which determines that such Page 19 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER activities can be said to be prejudicial to the maintenance of the public order in every ritual the Court is of the opinion that the satisfaction arrived at for detaining the petitioner under the laws of preventive detention has been based on the sufficient material the contentions raised of alleging infraction of the provisions of the law is devoid of any force.
21. The delay on the part of the authority in invoking the powers is one of the grounds which has been pressed into the service relying on the decision of the Apex Court this Court needs to consider the fact that there are three offences in quick succession of-course as rightly pointed out by the learned counsel the last incident is of 03.07.2019 and then after in the month of March 2020, the authority concerned has invoked the powers under Subsection (2) of Section 3 of the PASA Act. The notice with the details which have been given in the order of detention speaks of he being a habitual offender and instances shown are not stayed as argued by the learned advocate there are two cases which are 08 of 19 and 09 of 19 in the month of February and 3 in the month of July thereafter also the secret witnesses in all the three FIRs the offence of this detenue it is out of place to make a mention of the fact that within place to make mention of the fact that in the year 2016 in the matter of communal riots this person was in the jail for 21 days and he has been enlarged on bail by the Sessions Court and in the year 2018 once again an offence of rioting had been registered against him and he was in jail for 12 days and thereafter he was released on regular bail and sessions Page 20 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021 C/SCA/9566/2020 ORDER case is going on. Over and above the three offences which have been particularly mentioned by the authority concerned therefore it is quite clear from the material that there is a continues and persistent activities as a result, serious and public tranquility to the satisfaction of the authority concerned could not be assailed.
Dismissed.
(SONIA GOKANI, J) MISHRA AMIT V./URIL Page 21 of 21 Downloaded on : Mon Aug 23 20:56:40 IST 2021