Gujarat High CourtSarvar @ Kadva Abdul Kalim ... vs Commissioner Of Police, ... on 28 April, 2023Bench: A.S. SupehiaC/SCA/6082/2023                             JUDGMENT DATED: 28/04/2023\n\n\n\n\n             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n               R/SPECIAL CIVIL APPLICATION NO. 6082 of 2023\n\n\nFOR APPROVAL AND SIGNATURE:\n\n\nHONOURABLE MR. JUSTICE A.S. SUPEHIA\n\nand\nHONOURABLE MR. JUSTICE DIVYESH A. JOSHI\n\n==========================================================\n\n1     Whether Reporters of Local Papers may be allowed\n      to see the judgment ?\n\n2     To be referred to the Reporter or not ?\n\n3     Whether their Lordships wish to see the fair copy\n      of the judgment ?\n\n4     Whether this case involves a substantial question\n      of law as to the interpretation of the Constitution\n      of India or any order made thereunder ?\n\n==========================================================\n    SARVAR @ KADVA ABDUL KALIM BHADBHUJA (BHURJI) THROUGH\n              BHURJI MARJINBANU MOHMAD SARVAR\n                            Versus\n           COMMISSIONER OF POLICE, AHMEDABAD CITY\n==========================================================\nAppearance:\nVAIBHAVI D RAVAL(8466) for the Petitioner(s) No. 1\nDS AFF.NOT FILED (R) for the Respondent(s) No. 1,3\nMR.JAY MEHTA AGP for the Respondent(s) No. 2\n==========================================================\n\n    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA\n          and\n          HONOURABLE MR. JUSTICE DIVYESH A. JOSHI\n\n                             Date : 28/04/2023\n\n                     ORAL JUDGMENT(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)Page 1 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                 JUDGMENT DATED: 28/04/20231.      Heard the learned advocates appearing for the respective parties.2.      The present petition is directed against the order of detention dated\n21.03.2023 passed by the respondent - detaining authority in exercise of\npowers conferred under section 3(1) of the Gujarat Prevention of Anti Social\nActivities Act, 1985 (for short "the Act") by detaining the petitioner-\ndetenue as defined under section 2(c) of the Act.3.      Learned advocate for the detenue submitted that the impugned order\nof detention of the detenue requires to be quashed and set aside because the\ndetaining authority has passed order of detention solely on the ground of\nregistration of two FIRs, first for the offences underSections 392,397&114of the Indian Penal Code and Section 135(1) of the G.P.Act and\nanother for the offences underSections 324,294(b),114of the IPC and\n135(1) of the G.P.Act respectively by itself cannot bring the case of the\ndetenue within the purview of definition under section 2(c) of the Act.\nLearned advocate for the petitioner further submitted that illegal activity\nlikely to be carried out or alleged to have been carried out, as alleged, cannot\nhave any nexus or bearing with the maintenance of public order and at the\nmost, it can be said to be breach of law and order. Further, except statement\nof witnesses, registration of above FIR/s, no other relevant and cogent\nmaterial is on record connecting alleged anti-social activity of the detenue\nwould not fall under the category of breach of public order. Learned\nadvocate further submitted that it is not possible to hold, on the basis of the\nfacts of the present case, that activity of the detenue with respect to the\ncriminal cases had affected and disturbed the social fabric of society,\neventually which would become threat to the very existence of normal and\nroutine life of people at large or that on the basis of registration of criminal\ncases, the detenue had put the entire social apparatus in disorder, making it\ndifficult for whole system to exist as a system governed by rule of law byPage 2 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                 JUDGMENT DATED: 28/04/2023\n\n\n\n\ndisturbing public order. It is also submitted that the detaining authority has\nalso not applied its mind to the fact that the petitioner is released on bail in\nall offences.4.      Learned AGP for the respondent-State supported the detention order\npassed by the authority and submitted that sufficient material and evidences\nwere found during the course of investigation, which was also supplied to\nthe detenue indicate that detenue is in habit of indulging into the activity as\ndefined under section 2(c) of the Act and considering the facts of the case,\nthe detaining authority has rightly passed the order of detention and\ndetention order deserves to be upheld by this Court.5.      Having heard the learned advocates for the parties and considering\nthe documents and material available on record of the case, prima facie, it is\nfound that the subjective satisfaction arrived at by the detaining authority\ncannot be said to be legal, valid and in accordance with law, inasmuch as the\noffences alleged in the FIR/s cannot have any bearing on the public order as\nrequired under the Act and other relevant penal laws are sufficient enough to\ntake care of the situation and that the allegations levelled against the detenue\ncannot be said to be germane for the purpose of bringing the detenue within\nthe realm of meaning of section 2(c) of the Act. Unless and until, the\nmaterial is there to 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 society and\nthat all social apparatus goes in peril disturbing public order at the instance\nof such person, in that circumstances, it cannot be said that the detenue is a\nperson which would fall within the meaning of section 2(c) of the Act.\nExcept general statements, there is no material on record which shows that\nthe detenue is acting in such a manner, which would become dangerous to\nthe public order.Page 3 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                           JUDGMENT DATED: 28/04/20236.       At this juncture, we would like to put reliance upon certain case laws\nof the Apex Court, wherein the Apex Court has crystalized the position of\nlaw in a very crystal manner.6.1      In the case ofSushanta Kumar Banik v. State of Tripura, AIR 2022\nS.C. 4715 before Apex Court, the fact of the accused/detenue being released\non bail for the offences under theNDPS Act, 1985 was suppressed and\nhence, the Apex Court has held that such vital fact could not have been\nwithheld by the sponsoring authority before the detaining authority. In the\npresent case, though the detaining authority was aware of the fact that the\ndetenue is released on bail in all these offences, the order does not anyway\ncontain that the detaining authority has applied its mind to the afore-noted\nfacts. The Apex Court has observed as under in aforesaid judgment:"22. As noted above, in the case on hand, in both the cases relied upon by the\n         detaining authority for the purpose of preventively detaining the appellant herein, the\n         appellant was already ordered to be released on bail by the concerned Special\n         Court. Indisputably, we do not find any reference of this fact in the proposal\n         forwarded by the Superintendent of Police, West Tripura District while requesting to\n         process the order of detention. The reason for laying much stress on this aspect of\n         the matter is the fact that the appellant though arrested in connection with the\n         offence under theNDPS Act, 1985, the Special Court, Tripura thought fit to release\n         the appellant on bail despite the rigours ofSection 37of the NDPS Act, 1985.Section\n         37the NDPS Act, 1985 reads thus:"Section 37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained inthe Codeof Criminal\n         Procedure, 1973 (2 of 1974)--(a) every offence punishable under this Act shall be cognizable;(b) no person accused of an offence punishable for offences undersection 19orsection 24orsection 27Aand also for offences involving commercial quantity shall\n         be released on bail or on his own bond unless--(i) the Public Prosecutor has been given an opportunity to oppose the application for\n         such release, andPage 4 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                            JUDGMENT DATED: 28/04/2023(ii) where the Public Prosecutor opposes the application, the court is satisfied that\n         there are reasonable grounds for believing that he is not guilty of such offence and\n         that he is not likely to commit any offence while on bail.(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in\n         addition to the limitations underthe Codeof Criminal Procedure, 1973 (2 of 1974) or\n         any other law for the time being in force, on granting of bail."23. A plain reading of the aforesaid provision would indicate that the accused\n         arrested under theNDPS Act, 1985 can be ordered to be released on bail only if the\n         Court is satisfied that there are reasonable grounds for believing that the accused is\n         not guilty of such offence and that he is not likely to commit any offence while on bail.\n         If the appellant herein was ordered to be released on bail despite the rigours ofSection 37the NDPS Act, 1985, then the same is suggestive that the Court concerned\n         might not have found any prima facie case against him. Had this fact been brought to\n         the notice of the detaining authority, then it would have influenced the mind of the\n         detaining authority one way or the other on the question whether or not to make an\n         order of detention. The State never thought to even challenge the bail orders passed\n         by the special court releasing the appellant on bail.24.In Asha Devi v. Additional Chief Secretary to the Government of Gujarat and Anr.,\n        1979 Crl LJ 203, this Court pointed out that:"... if material or vital facts which would influence the minds of the detaining\n                 authority one way or the other on the question whether or not to make the\n                 detention order, are not placed before or are not considered by the detaining\n                 authority it would vitiate its subjective satisfaction rendering the detention\n                 order illegal."25.     ...........26. From the above decisions, it emerges that the requisite subjective satisfaction, the\n         formation of which is a condition precedent to passing of a detention order will get\n         vitiated if material or vital facts which would have bearing on the issue and weighed\n         the satisfaction of the detaining authority one way or the other and influence his\n         mind are either withheld or suppressed by the sponsoring authority or ignored and\n         not considered by the detaining authority before issuing the detention order.27. It is clear to our mind that in the case on hand at the time when the detaining\n         authority passed the detention order, this vital fact, namely, that the appellant detenu\n         had been released on bail by the Special Court, Tripura despite the rigours ofSection 37of the NDPS Act, 1985, had not been brought to the notice and on the\n         other hand, this fact was withheld and the detaining authority was given to\n         understand that the trial of those criminal cases was pending."6.2      In the case ofVijay Narain v. State of Bihar, 1984 (3) S.C.C. 14, the\nApex Court asserted that when a person is enlarged on bail by a competentPage 5 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                          JUDGMENT DATED: 28/04/2023\n\n\n\n\nCourt, great caution should be exercised in scrutinizing the validity of an\norder of preventive detention order which is based on the same charge,\nwhich is to be tried by the criminal Court. It is also noticed by this Court\nthat the order does not refer to any application for cancellation of bail\nhaving been filed by the State authorities.6.3      In a recent decision of the Hon'ble Supreme Court in the case of\nShaik Nazeen vs. State of Telanga andOrs. and Syed Sabeena vs. State of\nTelangana and Ors. rendered in Criminal Appeal No.908 of 2022 (@ SLP\n(Crl.) No.4260 of 2022 and Criminal Appeal No.909 of 2022 (@ SLP (Crl.)\nNo.4283 of 2022 dated 22.06.2022, the Hon'ble Supreme Court has made\nfollowing observations in paragraph Nos.17 and 18. The excerpts of\nparagraph Nos.17 and 18 are as under :-"17. In any case, the State is not without a remedy, as in case the detenu is much a\n         menace to the society as is being alleged, then the prosecution should seek for the\n         cancellation of his bail and/or move an appeal to the Higher Court. But definitely\n         seeking shelter under the preventive detention law is not the proper remedy under the\n         facts and circumstances of the case.18. In fact, in a recent decision of this Court, the Court had to make an observation\n         regarding the routine and unjustified use of the Preventive Detention Law in the State\n         of Telangana. This has been done in the case of Mallada K. Sri Ram Vs. The State of\n         Telangana & Ors. 2022 6 SCALE 50, it was stated as under: "17.It is also relevant to\n         note, that in the last five years, this Court has quashed over five detention orders\n         under the Telangana Act of 1986 for inter alia incorrectly applying the standard for\n         maintenance of public order and relying on stale materials while passing the orders\n         of detention. At least ten detention orders under the Telangana Act of 1986 have been\n         set aside by the High Court of Telangana in the last one year itself. These numbers\n         evince a callous exercise of the exceptional power of preventive detention by the\n         detaining authorities and the respondent-state. We direct the respondents to take\n         stock of challenges to detention orders pending before the Advisory Board, High\n         Court and Supreme Court and evaluate the fairness of the detention order against\n         lawful standards."6.4      The distinction between a disturbance to "law and order" and a\ndisturbance to public order has been clearly settled by a Constitution Bench\ninRam Manohar Lohia vs. State of Bihar, AIR 1966 SC 740. The Court has\nheld that every disorder does not meet the threshold of a disturbance toPage 6 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                            JUDGMENT DATED: 28/04/2023\n\n\n\n\npublic order, unless it affects the community at large. The Constitution\nBench held:"51. We have here a case of detention under Rule 30 of the Defence of India Rules\n         which permits apprehension and detention of a person likely to act in a manner\n         prejudicial to the maintenance of public order. It follows that if such a person is not\n         detained public disorder is the apprehended result. Disorder is no doubt prevented\n         by the maintenance of law and order also but disorder is a broad spectrum which\n         includes at one end small disturbances and at the other the most serious and\n         cataclysmic happenings. Does the expression "public order" take in every kind of\n         disorders or only some of them? The answer to this serves to distinguish "public\n         order" from "law and order" because the latter undoubtedly takes in all of them.\n         Public order if disturbed, must lead to public disorder. Every breach of the peace\n         does not lead to public disorder. When two drunkards quarrel and fight there is\n         disorder but not public disorder. They can be dealt with under the powers to\n         maintain law and order but cannot be detained on the ground that they were\n         disturbing public order. Suppose that the two fighters were of rival communities and\n         one of them tried to raise communal passions. The problem is still one of law and\n         order but it raises the apprehension of public disorder. Other examples can be\n         imagined. The contravention of law always affects order but before if can be said to\n         affect public order, it must affect the community or the public at large. A mere\n         disturbance of law and order leading to disorder is thus not necessarily sufficient for\n         action under the Defence of India Act but disturbances which subvert the public\n         order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to\n         prevent subversion of public order but not in aid of maintenance of law and order\n         under ordinary circumstances.52. It will thus appear that just as "public order" in the rulings of this Court (earlier\n         cited) was said to comprehend disorders of less gravity than those affecting "security\n         of State", "law and order" also comprehends disorders of less gravity than those\n         affecting "public order". One has to imagine three concentric circles. Law and order\n         represents the largest circle within which is the next circle representing public order\n         and the smallest circle represents security of State. It is then easy to see that an act\n         may affect law and order but not public order just as an act may affect public order\n         but not security of the State. By using the expression "maintenance of law and\n         order" the District Magistrate was widening his own field of action and was adding\n         a clause to the Defence of India Rules."(emphasis supplied)\n6.5      In the case ofMallada K Sri Ram vs. State of Telangana, 2022 (6)\nScale 50, the Apex Court has observed as under:-"15 A mere apprehension of a breach of law and order is not sufficient to meet the\n          standard of adversely affecting the "maintenance of public order". In this case, the\n          apprehension of a disturbance to public order owing to a crime that was reported\n          over seven months prior to the detention order has no basis in fact. The\n          apprehension of an adverse impact to public order is a mere surmise of the\n          detaining authority, especially when there have been no reports of unrest since\n          detenu was released on bail on 8 January 2021 and detained with effect from 26Page 7 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                            JUDGMENT DATED: 28/04/2023\n\n\n\n\n          June 2021. The nature of the allegations against the detenu are grave. However, the\n          personal liberty of an accused cannot be sacrificed on the altar of preventive\n          detention merely because a person is implicated in a criminal proceeding. The\n          powers of preventive detention are exceptional and even draconian. Tracing their\n          origin to the colonial era, they have been continued with strict constitutional\n          safeguards against abuse.Article 22of the Constitution was specifically inserted\n          and extensively debated in the Constituent Assembly to ensure that the exceptional\n          powers of preventive detention do not devolve into a draconian and arbitrary\n          exercise of state authority. The case at hand is a clear example of non-application of\n          mind to material circumstances having a bearing on the subjective satisfaction of\n          the detaining authority. The two FIRs which were registered against the detenu are\n          capable of being dealt by the ordinary course of criminal law ."6.6      It will be fruitful to refer to a decision of the Supreme Court inPushker Mukherjee vs. State of West Bengal, AIR 1970 S.C. 852, where the\ndistinction between 'law and order' and 'public order' has been clearly laid\ndown. The Court observed as follows :-"Does the expression "public order" take in every kind of infraction of order or only\n       some categories thereof ? It is manifest that every act of assault or injury to specific\n       persons does not lead to public disorder. When two people quarrel and fight and\n       assault each other inside a house or in a street, it may be said that there is disorder but\n       not public disorder. Such cases are dealt with under the powers vested in the executive\n       authorities under the provisions of ordinary criminal law but the culprits cannot be\n       detained on the ground that they were disturbing public order. The contravention of\n       any law always affects order but before it can be said to affect public order, it must\n       affect the community or the public at large. In this connection we must draw a line of\n       demarcation between serious and aggravated forms of disorder which directly affect\n       the community or injure the public interest and the relatively minor breaches of peace\n       of a purely local significance which primarily injure specific individuals and only in a\n       secondary sense public interest. A mere disturbance of law and order leading to\n       disorder is thus not necessarily sufficient for action under the Preventive Detention Act\n       but a disturbance which will affect public order comes within the scope of the Act ."7.     Same fact situation exists in the State and number of detention orders\nunder PASA are passed day in and day out, relying on stale material and\nwithout drawing distinction between "law and order" problem and "public\norder" problem as mentioned under the PASA Act.8. In case of K.Nageswara Naidu Versus Collector And District MagistratePage 8 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                           JUDGMENT DATED: 28/04/2023\n\n\n\n\nKadapa, 2012 (13) SCC 585, the Apex Court has reiterated thus:"4. After the aforesaid decision, the same issue again came up for consideration\n     before a two-Judge Bench of this Court inMunagala Yadamma v. State of Andhra\n     Pradesh and Ors., (2012) 2 SCC 386, where a similar order had been passed under the\n     1986 Act. In the said case, the detention order had been passed in regard to the detenu,\n     who had been indulging in illicit distillation of liquor and the same submission was\n     advanced on behalf of the State, that recourse to ordinary law would involve more time\n     and would not be an effective deterrent in preventing a person from indulging in\n     prejudicial activities. In the said decision while considering the decision, both in\n     Rekha's case (supra) and Reddeiah 's ease (supra) and also in Yumman Ongbi Lemhi\n     Leima's case (supra), it was held that the personal liberty of an individual is the most\n     precious and prised right guaranteed under the Constitution in Part III thereof. It was\n     observed that the State has been granted the power to curb such rights under criminal\n     laws and also under the laws of preventive detention, which, therefore, are required to\n     be exercised with due caution, as well as upon a proper appreciation of the facts as to\n     whether such acts are in any way prejudicial to the interest and the security of the\n     State and its citizens, or seek to disturb public law and order, warranting the issuance\n     of such an order. It was also observed that no doubt the offences alleged to have been\n     committed by the Appellant are such as to attract punishment under the Andhra\n     Pradesh Prohibition Act. but such punishment would have to be awarded under the\n     said laws and taking recourse to preventive detention laws would not be warranted. It\n     had been emphasised that preventive detention involves detaining of a person without\n     trial in order to prevent him/ her from committing certain types of offences, but such\n     detention cannot be made a substitute for the ordinary law and absolve the\n     investigating authorities of their normal functions of investigating crimes, which the\n     detenu may have committed. It had also been observed that after all, preventive\n     detention. in most cases, is for a year only and cannot be used as an instrument to keep\n     a person in perpetual custody without trial."9. Thus, the Supreme Court has emphasized that preventive detention\ninvolves detaining of a person without trial in order to prevent him/ her from\ncommitting certain types of offences, but such detention cannot be made a\nsubstitute for the ordinary law and absolve the investigating authorities of\ntheir normal functions of investigating crimes, which the detenue may have\ncommitted. It had also been observed that after all, preventive detention. In\nmost cases, is for a year only and cannot be used as an instrument to keep a\nperson in perpetual custody without trial.10. It appears that the state authorities tend to forget the aforementioned\nsettled proposition of law and orders are being passed being oblivious of the\nfact that the freedom of human being is supreme and the same cannot bePage 9 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                JUDGMENT DATED: 28/04/2023\n\n\n\n\ncurtailed or restricted unless the detention is extremely necessary and the\nactivities of the detenue affects the "public order". It is also noticed by this\nCourt that the state authorities are absolutely oblivious of the expression\nbetween the "law and order" and "public order". In numerous decisions, the\nSupreme Court and the High Court has reiterated and explained the\ndifference between the two expressions, however, from the orders of\ndetentions, it is noticed that no attention is being paid by the detaining\nauthorities on such vital aspect. While passing the detention orders, the\nauthorities have to be mindful of the characteristic ofArticle 21and22of\nthe Constitution of India.Article 22cannot be read in isolation but must be\nread as an exception toArticle 21, and such exception can apply only in rare\nand exceptional cases. The Apex Court and this Court time and again have\narticulated that the personal liberty protected underArticle 21is so\nsacrosanct and so high in the scale of constitutional values that it is the\nobligation of the detaining authority to show that the impugned detention is\nmeticulously accords with the procedure established by law. We have also\ncome across cases that in a single case of prohibition, the provisions of\nPASA are invoked and the order of detentions are not executed and the\nprovisions of PASA are invoked even after such detenue have been granted\nbail. Thus, it appears that, in numerous cases such orders are executed in\norder to frustrate the orders of bail11. Thus, it is high time that the State Authorities should introspect their\naction of passing detention order in a casual manner since this Court is\nconfronted with the orders of detention, which do not stand the test of\nsettled legal proposition of law.12.      In view of above, we are inclined to allow this petition, because\nsimplicitor registration of FIR/s by itself cannot have any nexus with thePage 10 of 11Downloaded on : Mon May 01 20:41:34 IST 2023C/SCA/6082/2023                                 JUDGMENT DATED: 28/04/2023\n\n\n\n\nbreach of maintenance of public order and the authority cannot have\nrecourse under the Act and no other relevant and cogent material exists for\ninvoking power undersection 3(1)of the Act. It is not in dispute that first\nFIR registered at Bapunagar on 12.02.2023 for the offence punishable\nunderSections 392,397,114of the IPC as well as 135(1) of the G.P.Act.\nThe parties have already compromised and the petitioner is released on bail\nby the trial Court. So far as second FIR is concerned, the petitioner is also\nreleased on bail. The dispute appears to be private in nature. In the result,\nthe present petition is hereby allowed and the impugned order of detention\ndated 21.03.2023 by the respondent - detaining authority is hereby quashed\nand set aside. The detenue is ordered to be set at liberty forthwith if not\nrequired in any other case. Rule is made absolute accordingly. Direct service\nis permitted.(A. S. SUPEHIA, J)\n\n\n\n                                                      (DIVYESH A. JOSHI,J)\nMANOJPage 11 of 11Downloaded on : Mon May 01 20:41:34 IST 2023