Gujarat High CourtPrashant @ Taklo @ Bihari S/O Santosh ... vs State Of Gujarat on 7 February, 2020Author:S.H.VoraBench:S.H.VoraC/SCA/21487/2019                                              JUDGMENT\n\n\n\n           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n                 R/SPECIAL CIVIL APPLICATION NO. 21487 of 2019\n\nFOR APPROVAL AND SIGNATURE:\nHONOURABLE MR.JUSTICE S.H.VORA\n==========================================================\n\n1    Whether Reporters of Local Papers may be allowed to see the\n     judgment ?\n\n2    To be referred to the Reporter or not ?\n\n3    Whether their Lordships wish to see the fair copy of the\n     judgment ?\n\n4    Whether this case involves a substantial question of law as to the\n     interpretation of the Constitution of India or any order made\n     thereunder ?\n\n==========================================================\n          PRASHANT @ TAKLO @ BIHARI S/O SANTOSH CHAUDHARY\n                                      Versus\n                             STATE OF GUJARAT\n==========================================================\nAppearance:\nAKASH A SINGH(8713) for the Petitioner(s) No. 1\nMS DIVYANGNA JHALA, AGP for the Respondent-Jail Authority\n==========================================================\n  CORAM: HONOURABLE MR.JUSTICE S.H.VORA\n                                Date : 07/02/2020\n                              ORAL JUDGMENTRule. Learned A.G.P. waives service of Rule for the\nrespondent - Jail Authority.1.     Heard learned advocates appearing for the respective\nparties.2.     The present petition is directed against order of detention\ndated 8.7.2019 passed by the respondent - detaining authority\nin exercise of powers conferred undersection 3(2)of the\nGujarat Prevention of Anti Social Activities Act, 1985 (for short\n"the Act") by detaining the petitioner - detenue as defined\nundersection 2(c)of the Act.Page 1 of 4Downloaded on : Sat Feb 08 02:29:23 IST 2020C/SCA/21487/2019                                        JUDGMENT3.    Learned advocate for the detenue submits that the order\nof detention impugned in this petition deserves to be quashed\nand set aside on the ground of registration of offences under\nSections 307, 337, etc. of theIndian Penal Codeand Section\n135 of the GP Act andSection 120(2)of the Prohibition Act by\nitself cannot bring the case of the detenue within the purview\nof definition undersection 2(c)of the Act.                  Further, learned\nadvocate for the detenue submits that illegal activity likely to\nbe carried out or alleged to have been carried out, as alleged,\ncannot have any nexus or bearing with the maintenance of\npublic order and at the most, it can be said to be breach of law\nand      order.         Further,   except         statement    of    witnesses,\nregistration of above FIR/s and Panchnama drawn in pursuance\nof the investigation, no other relevant and cogent material is\non record connecting alleged anti-social activity of the detenue\nwith breach of public order.                  Learned advocate for the\npetitioner further submits that it is not possible to hold on the\nbasis of the facts of the present case that activity of the\ndetenue with respect to the criminal cases had affected even\ntempo of the society causing threat to the very existence of\nnormal and routine life of people at large or that on the basis\nof criminal cases, the detenue had put the entire social\napparatus in disorder, making it difficult for whole system to\nexist as a system governed by rule of law by disturbing public\norder.4.    Learned AGP for the respondent State supported the\ndetention order passed by the authority and submitted that\nsufficient material and evidence was found during the course\nof investigation, which was also supplied to the detenue\nindicate that detenue is in habit of indulging into the activity as\ndefined undersection 2(c)of the Act and considering the factsPage 2 of 4Downloaded on : Sat Feb 08 02:29:23 IST 2020C/SCA/21487/2019                                   JUDGMENT\n\n\n\n\nof the case, the detaining authority has rightly passed the\norder of detention and detention order deserves to be upheld\nby this Court.5.   Having heard learned advocates for the parties and\nconsidering the facts and circumstances of the case, it appears\nthat the subjective satisfaction arrived at by the detaining\nauthority cannot be said to be legal, valid and in accordance\nwith law, inasmuch as the offences alleged in the FIR/s cannot\nhave any baring on the public order as required under the Act\nand other relevant penal laws are sufficient enough to take\ncare of the situation and that the allegations as have been\nlevelled against the detenue cannot be said to be germane for\nthe purpose of bringing the detenue within the meaning ofsection 2(c)of the Act. Unless and until, the material is there\nto make out a case that the person has become a threat and\nmenace to the Society so as to disturb the whole tempo of the\nsociety and that all social apparatus is in peril disturbing public\norder at the instance of such person, it cannot be said that the\ndetenue is a person within the meaning ofsection 2(c)of the\nAct. Except general statements, there is no material on record\nwhich shows that the detenue is acting in such a manner,\nwhich is dangerous to the public order. In this connection, it\nwill be fruitful to refer to a decision of the Supreme Court in\nPushker Mukherjee v/s. State of West Bengal [AIR 1970\nSC 852], where the distinction between 'law and order' and\n'public order' has been clearly laid down. The Court observed\nas follows :"Does the expression "public order" take in every kind of\n             infraction of order or only some categories thereof ? It is\n             manifest that every act of assault or injury to specific\n             persons does not lead to public disorder. When two\n             people quarrel and fight and assault each other inside aPage 3 of 4Downloaded on : Sat Feb 08 02:29:23 IST 2020C/SCA/21487/2019                                    JUDGMENT\n\n\n\n             house or in a street, it may be said that there is disorder\n             but not public disorder. Such cases are dealt with under\n             the powers vested in the executive authorities under the\n             provisions of ordinary criminal law but the culprits\n             cannot be detained on the ground that they were\n             disturbing public order. The contravention of any law\n             always affects order but before it can be said to affect\n             public order, it must affect the community or the public\n             at large. In this connection we must draw a line of\n             demarcation between serious and aggravated forms of\n             disorder which directly affect the community or injure\n             the public interest and the relatively minor breaches of\n             peace of a purely local significance which primarily\n             injure specific individuals and only in a secondary sense\n             public interest. A mere disturbance of law and order\n             leading to disorder is thus not necessarily sufficient for\n             action under thePreventive Detention Actbut a\n             disturbance which will affect public order comes within\n             the scope of the Act."6.    In view of above, I am inclined to allow this petition,\nbecause simplicitor registration of FIR/s by itself cannot have\nany nexus with the breach of maintenance of public order and\nthe authority cannot have recourse under the Act and no other\nrelevant and cogent material exists for invoking power undersection 3(2)of the Act. In the result, the present petition is\nhereby allowed and the impugned order of detention No.\nPCB/PASA/DTN/232/2019          dated      8.7.2019   passed         by      the\nrespondent - detaining authority is hereby quashed and set\naside. The detenue is ordered to be set at liberty forthwith if\nnot required in any other case.7.    Rule is made absolute accordingly. Direct service is\npermitted.(S.H.VORA, J)\nALIPage 4 of 4Downloaded on : Sat Feb 08 02:29:23 IST 2020