Gujarat High CourtAnkit Rameshbhai Barot vs State Of Gujarat & 2 on 28 June, 2017Author:S.H.VoraBench:S.H.VoraC/SCA/7505/2017                                            JUDGMENT



                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      SPECIAL CIVIL APPLICATION NO. 7505 of 2017



         FOR APPROVAL AND SIGNATURE:


         HONOURABLE MR.JUSTICE S.H.VORA
         ==========================================================
         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 ?

         ==========================================================
                          ANKIT RAMESHBHAI BAROT....Petitioner(s)
                                        Versus
                          STATE OF GUJARAT & 2....Respondent(s)
         ==========================================================
         Appearance:
         MS KRISHNA U MISHRA, ADVOCATE for the Petitioner(s) No. 1
         ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
         MR TIRTHRAJ PANDYA AGP for the Respondent(s) No. 3
         RULE SERVED BY DS for the Respondent(s) No. 1 - 2
         ==========================================================

         CORAM: HONOURABLE MR.JUSTICE S.H.VORA

                                     Date : 28/06/2017


                                    ORAL JUDGMENT1.    Heard learned advocates appearing for the respective
         parties.Page 1 of 5HC-NIC                                 Page 1 of 5      Created On Thu Jun 29 02:01:16 IST 2017
                 C/SCA/7505/2017                                          JUDGMENT2.   The present petition is directed against order of detention
         dated 01.04.2017 passed by the respondent - detaining
         authority in exercise of powers conferred undersection 3(2)of
         the Gujarat Prevention of Anti Social Activities Act, 1985 (for
         short "the Act") by detaining the petitioner - detenue as
         defined undersection 2(c)of the Act.3.   Learned advocate for the detenue submits that the order
         of detention impugned in this petition deserves to be quashed
         and set aside on the ground of registration of two offences
         underSections 325,324,294(B),392,506(2)and114of the
         Indian Penal Code and 135(1) of theG.P. Actby itself cannot
         bring the case of the detenue within the purview of definition
         undersection 2(c)of the Act.           Further, learned advocate for
         the detenue submits that illegal activity likely to be carried out
         or alleged to have been carried out, as alleged, cannot have
         any nexus or bearing with the maintenance of public order and
         at the most, it can be said to be breach of law and order.
         Further, except statement of witnesses, registration of above
         FIR/s and Panchnama drawn in pursuance of the investigation,
         no other relevant and cogent material is on record connecting
         alleged anti-social activity of the detenue with breach of public
         order. Learned advocate for the petitioner further submits that
         it is not possible to hold on the basis of the facts of the present
         case that activity of the detenue with respect to the criminal
         cases had affected even tempo of the society causing threat to
         the very existence of normal and routine life of people at large
         or that on the basis of criminal cases, the detenue had put the
         entire social apparatus in disorder, making it difficult for whole
         system to exist as a system governed by rule of law by
         disturbing public order.Page 2 of 5HC-NIC                              Page 2 of 5      Created On Thu Jun 29 02:01:16 IST 2017
                 C/SCA/7505/2017                                          JUDGMENT4.   Learned AGP for the respondent State supported the
         detention order passed by the authority and submitted that
         sufficient material and evidence was found during the course
         of investigation, which was also supplied to the detenue
         indicate that detenue is in habit of indulging into the activity as
         defined undersection 2(c)of the Act and considering the facts
         of the case, the detaining authority has rightly passed the
         order of detention and detention order deserves to be upheld
         by this Court.5.   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 baring on the 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 ofsection 2(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 ofsection 2(c)of the
         Act. Except general statements, 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 Supreme Court in
         Pushker Mukherjee v/s. State of West Bengal [AIR 1970
         SC 852], where the distinction between 'law and order' andPage 3 of 5HC-NIC                              Page 3 of 5      Created On Thu Jun 29 02:01:16 IST 2017
                   C/SCA/7505/2017                                                 JUDGMENT




         'public order' has been clearly laid down. The Court observed
         as follows :"Does the expression "public order" take in every kind of
                       infraction of order or only some categories thereof ? It is
                       manifest that every act of assault or injury to specific
                       persons does not lead to public disorder. When two
                       people quarrel and fight and assault each other inside a
                       house or in a street, it may be said that there is disorder
                       but not public disorder. Such cases are dealt with under
                       the powers vested in the executive authorities under the
                       provisions of ordinary criminal law but the culprits cannot
                       be detained on the ground that they were disturbing
                       public order. The contravention of any law always affects
                       order but before it can be said to affect public order, it
                       must affect the community or 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 thePreventive
                       Detention Actbut a disturbance which will affect public
                       order comes within the scope of the Act."6.   In view of above, I am inclined to allow this petition,
         because simplicitor registration of FIR/s by itself cannot have
         any nexus with the breach of maintenance of public order and
         the authority cannot have recourse under the Act and no other
         relevant and cogent material exists for invoking power undersection 3(2)of the Act. In the result, the present petition is
         hereby     allowed         and   the     impugned             order       of     detention
         No.PCB/DTN/PASA/211/2017 dated 01.04.2017 passed by the
         respondent - detaining authority is hereby quashed and set
         aside. The detenue is ordered to be set at liberty forthwith if
         not required in any other case.7.   Rule is made absolute accordingly.                             Direct service is
         permitted.Page 4 of 5HC-NIC                                     Page 4 of 5        Created On Thu Jun 29 02:01:16 IST 2017
                   C/SCA/7505/2017                                        JUDGMENT




                                                                           (S.H.VORA, J.)
         HiteshPage 5 of 5HC-NIC                              Page 5 of 5      Created On Thu Jun 29 02:01:16 IST 2017