1. Heard learned counsel for the parties.
2. This petition is directed against the order of detention dated 05/05/2012 passed by authority functioning under respondent No.1 i.e. Police Commissioner in exercise of powers conferred under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the detenue as a “dangerous person” as defined under Section 2(c) of the Act.
3. Learned counsel for the detenue submits that order of detention impugned in this petition deserves to be quashed and set aside and the ground that registration of one offence by itself cannot bring the case of the detenue within the purview of definition under Section 2(c) of the Act. Further, learned counsel for the detenue submits that illegal activity carried out as alleged cannot have any nexus or bearing with maintenance of public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIR, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of public order.
4. Learned counsel for the detenue, placing reliance on the decisions reported in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) v. State of Gujarat reported in 2000(3) GLR 2696; (ii) Ashokbhai Jivraj @Jivabhai Solanki v. Police Commisioenr, Surat reported in 2000(1) GLH 393; and (iii) Mustakmiya Jabbarmiya Shaikh v. M.M.Mehta, reported in (1995)3 SCC 237, submitted that the case on hand is squarely covered by the ratio laid down in the aforesaid decisions. Learned counsel for the detenue further submits that it is not possible to hold in the facts of the present case that the activities of the detenue with reference to the criminal case/s had affected even tempo of the society, posing a threat to the very existence of the normal and routine life of the people at large or that on the basis of the criminal case, 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.
5. Learned AGP for the respondent-State supported the detention order passed by the authority and submitted that the detenue is a dangerous person and sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue itself indicate that the detenue is in habit of indulging into activities as defined under Section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and the detention order deserves to be upheld by this Court.
6. Having heard learned counsel 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 cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code 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 as a dangerous person within the meaning of Section 2(c) 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, it cannot be said that the detenue is a dangerous person within the meaning of Section 2(c) of the Act. Except general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order. There are number of decisions of this Court as well as the Hon'ble Apex Court on this point. In view of the ratio laid down by the Hon'ble Supreme Court in the cases of (i) Ranubhai Bhikhabhai Bharwad (Vekaria) (supra); (ii) Ashokbhai Jivraj @Jivabhai Solanki (supra); and (iii) Mustakmiya Jabbarmiya Shaikh (supra), the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of “law and order”.
7. The Court is unable to accept the submission canvassed in respect of lack of reasoning, so far as passing of detention order is concerned on account of tendency of bail application, as in case of Rivandeneyta Ricardo Agustin Vs. Government Of The National Capital Territory Of Delhi And Others, reported in 1994 Supp (1) SC 597 and in case of Binod Singh Vs. District Magistrate, Dhanbad, Bihar And Others, reported in AIR 1986 SC 2090 and in case of Amritlal and other, Vs. Union Government through Secretary, Minstry of Finance and Others, reported in AIR 2000 SC 3675, cited by the learned advocate for the petitioner. The likelihood of applying for bail is contended to be no ground for eminent danger and, therefore, in my view in the present case when the factum of application of bail is narrated that factum would change the scenario and would indicate that the application and its tendency for bail would not be altogether no ground or invalid ground for passing detention order, but that alone would not be a justification for detention as the detention authority was under obligation to record its satisfaction qua the person being really dangerous, as define under Section 2(c) of the Gujarat PASA Act and in my view, the Devision Bench decision in case of Ramesh Vandha Modhwadiya Through Brothers, Laxmanbhai Vandhabhai Modhwadiya Vs. State of Gujarat & Ors., reported in 2010 (1) GLR 241, the salutary incident of such a nature would not so qualify detenue to be duped, as dangerous person nor the incident could be termed to be an act of impinged public order. Therefore, the order is required to be quashed and set aside and is accordingly quashed and set aside.
8. In view of the above, I am inclined to allow this petition because simplicitor registration of FIR by itself cannot have any nexus with the breach of maintenance of public order and the authority can have recourse under the Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3(2) of the Act.
9. In the result, the petition is allowed. The order of detention dated 05/05/2012 passed by authority functioning under respondent No.1 i.e. Police Commissioner is quashed and set aside. The detenue, is ordered to be set at liberty forthwith if not required in connection with any other case. Rule is made absolute accordingly. Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj