Gujarat High Court
Jivan @ Nepali @ Kancha S/O Sankarbhai ... vs State Of Gujarat on 30 December, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/13767/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13767 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ?
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JIVAN @ NEPALI @ KANCHA S/O SANKARBHAI KHATRI
Versus
STATE OF GUJARAT
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Appearance:
MR. KISHAN H DAIYA(6929) for the Petitioner(s) No. 1
MS JIRGA JHAVERI, AGP, GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
RULE NOT RECD BACK(63) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
Date : 30/12/2020
ORAL JUDGMENT
1. In a petition which has been preferred under Article 226 of the Constitution of India, the petitioner seeks to challenge the order of detention dated Page 1 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 14.108.2020 passed by respondent No.2 under the provision of the Gujarat Prevention of Anti-Social Activities Act, 1985 ("the PASA Act"), whereby respondent No.2, on invocation of powers under sub-section (1) of section 3 of the PASA Act as passed the order of detention being PCB/PASA/DTN/233/2020.
2. This has, since aggrieved the petitioner, has approached this Court by way of prayers as under:-
"10. The applicant therefore, humbly prays:
A) That the Hon'ble Court may be pleased to admit this Special Civil Application.
B) That this Hon'ble Court may be pleased to allow this present Special Civil Application by issuing appropriate writ of habeas corpus or any other appropriate writ, order or direction quashing and setting aside the impugned order of detention dated 24.08.2020 passed by respondent no.2.
C) Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to grant stay as to the further implementation, execution and operation of the impugned order of detention dated 14.08.2020 passed by respondent no.2.
D) Grant such other and further relief as
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C/SCA/13767/2020 JUDGMENT
deemed just and proper by this Hon'ble Court in the interest of justice."
3. Two offences are taken into account by the authority concerned for invocation of powers under the PASA Act, which are as follows:-
1) CR.NO.A-11210047200650 of 2020 registered before Udhana police station for the offences under sections 143, 144, 148, 149, 188, 323 and 504 of the Indian Penal Code and section 135 of the Gujarat Police Act.
2) A-PartCR.No.-11210047200650 of 2020 registered with Udhana police station for the offences under sections 143, 147, 149, 325, 323, 504, 506(2), 188 and 114 of the the Indian Penal Code and section 135 of the Gujarat Police Act.
4. It is the say of the petitioner that the petitioner is deliberately dragged by the police and has been Page 3 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT falsely implicated. The name of the petitioner in both the First Information Reports are wrongly mentioned. Although there is no specific role attributed to the petitioner, it is a serious threat of infection of corona virus and the petitioner is not safe in the jail. There is no material to indicate that the petitioner is dangerous person within the meaning of section 2(c). It is further his say that he has filed Special Civil Application 9790 of 2020 and the Court had reserved the liberty to file again if the authority decides against the petitioner and, therefore, the petitioner has approached this Court with the aforementioned reliefs.
5. This (Coram: Biren A. Vaishnav, J. ) Court has issued rule on 03.11.2020. Mr. Kishan Dahiya, learned advocate for the petitioner, has argued fervently along the line of the memo of petition. He has urged that none of the action on the part of the petitioner is in no manner causing prejudice to the public order. Learned Assistant Government Pleader has urged that the weapon used itself is indicative of Page 4 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT the fact that the person is head strong and no leniency is to be shown. The authority concerned has exercised the powers aptly. There are also the witnesses, who have on the promise of anonymity gave their statements as they had felt the threat upon their lives. He further urged that in a matter like this where the person concerned is not controlable and takes law in the hands, they could not muster the courage to lodge the complaint.
However, when the names of such persons have been already disclosed before the Court, there is no reason not to believe those persons.
6. Upon thus hearing both the sides, at the outset, the law on the subject and particularly, with reference to branding the petitioner as dangerous person under section 2(c) of the PASA Act shall need to be regarded, which requires habitual commission of the offences or attempts to commit or tends to commit any of the offences punishable under Chapter VIII and Chapter XVI. Profitable would it be to reproduce the law with reference to the dangerous person as Page 5 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT detailed by this Court in Special Civil Application 4515 of 2020.
"7. Having, thus, heard both the sides and also on examining the material on record, it can be noticed that by virtue of the order dated 26.07.2020, passed by respondent No.2, the petitioner has been detained under the PASA Act. The challenge is made on various grounds, principal being that action of the petitioner is, in no manner, causing prejudice to the public peace nor is it causing the disturbance of the public order. On the ground that there is violation of Articles 21 and 22 of the Constitution of India and the settled law of the country, this challenge is made.
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, which empowers the State Government that, if, it is satisfied with respect to any person that with a view to preventing 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 Page 6 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 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 Page 7 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 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 Page 8 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 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] Page 9 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 Page 10 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 Mustakmiya Jabbarmiya Shaikh 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 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 Page 11 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 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 Page 12 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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 complainant, 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 damage 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 Page 13 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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."
10) From the above materials, the Detaining Authority was satisfied that the detenu 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 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 maintenance 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 concluded 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 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 Page 14 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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."
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 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 section 2(c) of the Act. Unless Page 15 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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." 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 Page 16 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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. A mere 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...."
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6. In Darpan Kumar Sharma alias Dharban Kumar Sharma v. State of T.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 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 Page 18 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT Aartiben W/o Nandubhai Jayantibhai Sujnani vs. Commissioner of Police & 2 others, 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 1970 SC 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 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." 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 Page 19 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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, 10th 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'."
Page 20 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020C/SCA/13767/2020 JUDGMENT 7.6 In 'Mustakmiya Jabbarmiya Shaikh' (Supra), the Court examined the expression 'habit' or 'habitual' offender to held that '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 in 'DR. RAM MANOHAR LOHIA' (Supra). 7.8 On the basis of the law on the subject, what needs to be regarded by this Court is, as to whether, the kind of infraction or the order can be regarded as prejudicial to the maintenance of the public order and whether the same would be governed under the public order. 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 Page 21 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT 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......"
7. As individual role of the petitioner is very important and vital while examining the satisfaction of the authority concerned, both the First Information Reports, which have been relied on shall need to be regarded. In the first FIR being CR.NO.A-
11210047200650 of 2020 registered before Udhana police station, the statement is made by one Mobin Salimbhai Patel, who has inter alia stated that because of the lock down, he was inside his house and at that stage, one Nagendra Rajput, who is doing cable work at Jhankar Electrical shop had started abusing his father. Therefore, there was an Page 22 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT acrimonious exchange of words and he also had abused him. When their acquaintances and neighbours had gathered from the chawl, Nagenesh Gopal Pote, his son Sunny had gathered who had sword, wooden baton and iron pipes in their hands.
Nagendra had given blow on his hand, whereas, his friend Nepali had given blow with a pipe, who had beaten brother of the complainant and his acquaintances Raju. They had raised hue and cry and his brother Majid was removed to the hospital.
In the panchnama of the scene of offence and the arrest panchnama, there are witnesses, who had sopken of the role payed by these persons. Medical certificate of Surat Municipal Institute of Medical Education and Research ("SMIMER" for short).The petitioner has been granted bail in this matter on 01.05.2020.
8. So far as the second First Information Report is concerned being A-Part CR.No.-11210047200650 of 2020 registered with Udhana police station on 11.06.2020, the complainant Sanjay alias Gajju Page 23 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT Vinod Sharma, on 10.07.2020, while he was in his room and preparing food for himself, one person named Gajiya came and asked him why he was staying in this area, when there was already pandemic due to Covid-19 virus. Two to three other persons also had joined him and they also started abusing him and when he attempted to stop them, the brought wooden logs and started beating him.
They, since were naming each other, he could come to know that their names were Dipu, Nepali and Bunty. They had also threatened him with his life.
Some one had called the ambulance and he was taken to SMIMER Medical College. They had given fracture on his left hand and injuries on his left leg.
It is also to be noted that there are witnesses, who have chosen not to disclose their names and their statements have been recorded by the police and they also had been placed before the detaining authority, one of them is doing job in a marketing company. According to him, while he was going all at around 7 O' clock in the evening from Udhana to Page 24 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT the place of his job, the petitioner and his associates were sitting and the petitioner had called him. He asked him to take out the money that he had with him. When the witness resisted, he took out the wallet from this pocket and had taken out Rs.2000/-. When he pleaded him, the petitioner had started laughing and asked him to go away. When he with others gathered there, the petitioner had told his associates that they should drive away all the people. He would handle the witnesses. All his associates had taken out the chain and other wooden baton and had rushed towards people to injure them and, therefore, everyone around there ran halter and scalter and the entire area feared of serious consequences. He had taken out nail from his pocket and had given a blow on his face. He made him apologize and thereafter, had given life threat if in case he complained to the police.
Knowing fully well that the police was unable to stay with him for 24 hours, witness chose not to risk his life. Yet another witness sold snacks on his Chinese Page 25 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT larry. Twenty days from the recording of his statement, the present petitioner and his associates ordered food. The petitioner was eve-teasing the girls and women. When checked, the petitioner had asked him as to whether those girls were his sister and he threw the Chinese dish on his face and also the table where he was sitting. He had given the kick blow and threw him on the ground. He also gave indiscriminate beating to the witnesses and asked him that whatever they do, it is none of his business. When he raised hue and cry, the people from the surroundings had gathered. He told his associates that those people also had needed to be taught a lesson and they took out gupti and rambo knife. Therefore, the people in the surrounding were also threatened and scared to the death by the detenue and his associates. Nearby, shopkeepers closed their shutters out of fear and they all had left the place. The detenue and his associates, thus, created panic among the people and this cannot be said to be in relation to the law and order, but is the Page 26 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT public order as rightly assessed by the detaining authority, which is also required to safeguard and protect the interest of the public as held by the Apex Court in a similar facts disclosed in the case of Dr. Subramanian Swamy vs State Of Tamil Nadu & Ors, 2015(4) SCC 699. The grounds of detention, thus, are specific, cogent, proximate and relevant.
Therefore, the subjective satisfaction formed on the basis of this material by the detaining authority in relation to the detenue holding that he was acting in a manner prejudicial to the maintenance of public order and, there was a necessity of preventively detaining need no interference.
9. While so doing, the Court deems it fit to direct the IG(Prison) to employ vigorously his own communication being Udyog/674/2020 dated 14.12.2020 to this Court addressed by Officer of Director General of Police Personnel and Correctional Administration, Gujarat State where various reformative, rehabilitative activities contemplated and carried out in various jails across Page 27 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020 C/SCA/13767/2020 JUDGMENT the State have been detailed for the better life once the petitioner comes out, the same shall be done in the case of the present petitioner.
10. Present petition is dismissed.
(SONIA GOKANI, J) MISHRA AMIT V./sudhir Page 28 of 28 Downloaded on : Wed Dec 30 20:33:01 IST 2020