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Omprakash Sardarilal Sharma Vs. State of Gujarat and Ors. - (High Court of Gujarat) (07 Dec 2017)

Every act of assault or injury to specific persons does not lead to public disorder



By filing instant petition under Article 226 of the Constitution of India, the Petitioner prays to issue a writ of mandamus or any other appropriate writ, order or direction to set aside the order of detention, passed by the detaining authority against Petitioner under the Gujarat Prevention of Anti-social Activities Act, 1985 in exercise of powers under Sub-section (2) of Section 3 of the Act as being illegal. The Petitioner apprehends that, the Petitioner is likely to be detained under the Act on the pretext of F.I.R. registered with Bardoli police station for the offence punishable under Section 65AE, 81 etc. of the Gujarat Prohibition Act, 1949.

Neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that, the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Since, there is an allegation that, the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the Court that, the question too was borne in mind before the order of detention was made. In the case on hand, the detaining authority failed to satisfy the Court that, the detaining authority so bore the question in mind and, therefore, the Court is justified in drawing the inference that, there was non-application of mind by detaining authority to the vital question whether it was necessary to preventively detain the detenu. The Apex Court in case of Rekha v. State of Tamil Nadu through Secretary to Government and another observed that, if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken recourse to.

Present petition is filed at a pre-execution stage. However, from the grounds of detention, produced for Courts perusal, it appears that, the offence/s, as aforesaid, has been registered against the Petitioner. This fact has not been controverted by the detaining authority. It also appears that, on the basis of the above offence/s, the detaining authority has come to the subjective satisfaction that the activities of the Petitioner as "bootlegger" have disturbed the public order. The preventive detention order mentions that, the Petitioner is a "bootlegger".

It appears that, the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law as the offences alleged in the FIR/s cannot have any bearing on the public order since the laws of the land are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the meaning of Section 2(b) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person. In view of the allegations alleged in the aforesaid F.I.R/s., the Court is of the opinion that, the activities of the detenu cannot be said to be dangerous to the maintenance of public order and at the most, fall under the maintenance of law and order.

Supreme Court in Pushker Mukherjee v. State of West Bengal, observed that, 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. 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.

Though, there are in all eight offences registered against the Petitioner, Petitioner has been acquitted at-least in two cases and out of remaining cases, at-least for three cases at the relevant time in the year 2008, Petitioner was detained in the year 2008. However, such order of detention was quashed. At present, three FIRs of different years i.e. 2010, 2015 and 2017 only, therefore, though there are multiple FIRs against the Petitioner prima-facie, it would be difficult to conclude that, he is habitual offender. Though order of detention can be passed upon single FIR also, as per settled legal position, in the formula of different pronouncements of Supreme Court of India, generally, there should not be an order of detention in case of traced offences since, it would not amount to disturbance of law and order.

Therefore, it cannot be said that, for offence/s registered against the Petitioner, the Petitioner could be considered to be a bootlegger, whose preventive detention is must for maintenance of public order. The Court is of the considered opinion that, the Petitioner is not a "bootlegger" and his act, as alleged in the detention order cannot disturb maintenance of public order and, therefore, the instant case would fall within 3rd and 4th grounds namely it is passed for wrong purpose or it is passed on vague, extraneous and irrelevant grounds mentioned in the case of Alka Gadia and, therefore, order of preventive detention at pre-execution stage calls for interference of this Court. As the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and is set aside.

The petition is allowed since Respondents want to detain the Petitioner based on solitary offence registered against him. Thereby, now, respondents are restrained from detaining the petitioner based upon solitary offence registered vide F.I.R. being Prohibition C.R. No. 5354 of 2017 with Bardoli police station.

Relevant : Rekha v. State of Tamil Nadu through Secretary to Government and another : (2011)5 SCC 244; MANU/SC/0366/2011, Pushker Mukherjee v. State of West Bengal : AIR 1970 SC 852; MANU/SC/0027/1968


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