1. By way of this petition, the detenu has challenged the order of detention dated 02.7.2012 passed by District Magistrate, Anand under the provisions of subsec (2) of Section 3 of the Gujarat Prevention of AntiSocial Activities Act, 1985 (hereinafter referred to as “PASA Act”).
2. Learned advocate Ms.Mita Panchal appearing for the petitionerdetenu has invited my attention to the order of detention dated 02.7.2012 by which the detenu was arrested and sent to Navsari Jail. The grounds of detaining the accused are that two offences were registered against the detenu under the provisions of Section 3, 11(B),(D), (E) and (F) of the Animal Cruelty Act, 1973 and under Section 5, 6, 8, 11(1) the Gujarat Animal Preservation Act. He is, therefore, a “cruel person” as defined under Section 2(bbb) of the PASA Act.
Learned advocate appearing for the petitioner has submitted that, except the aforesaid offences, there is no material with the detaining authority to detain the petitionerdetenu under the provisions of PASA Act. It is submitted that the order is vitiated because only on the basis of two offences registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated.
3. Learned AGP Mr.Dharmesh Gurjar appearing for the State has opposed this petition.
4. Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of “cruel person” as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs as under: “2(bbb) “cruel person” means a person who either by himself or as member or leader of a gang habitually commits or attempts to commit abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 (Bom.LXXII of 1954)”.
5. It is clear from reading of the definition that the person to be branded as a cruel person has to be either a member or leader of a gang habitually committing or attempting to commit or abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term “habitually” examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring two offences registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitual or repetitively involved in the offences.
6. Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.
7. The petition deserves to be allowed and the same is allowed. The impugned order of detention dated 02.7.2012 passed by respondent No. 2 District Magistrate, Anand detaining detenuAnvarbhai Hashanbhai Qureshi is hereby quashed and set aside. The detenu be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
( A.J. DESAI, J. ) syed/