1. This petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served on the petitioner by the respondent Nos.2 and 3 under the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as 'the PASA' for short).
2. The brief facts as arising from the petition are that an FIR was filed by one Shri Noorbhai Nathubhai Goghari registered as C.R.No.I-97 of 2011 dated 15-7-2011 for the offences punishable under Secs.143, 147, 148, 149, 323 and 326 of IPC and also under Sec.135(1) of B.P.Act and Sec.25(1)(b) of Arms Act against the petitioners and other 25 persons before Karanj Police Station inter alia alleging that when he came to attend the court proceedings pending against him and others in the Court of City Sessions Judge, Ahmedabad City, Ahmedabad, on 30-6-2011, he had a quarrel and scuffle in the court compound with petitioner No.1-Ramzan and said Ramzan threatened to kill him, however, nothing happened as the dispute was resolved. It was further alleged that on the next date i.e. on 15-7-2011 when he was returning after attending the court proceedings along with his brother Abdulbhai Nathubhai Goghari and six other persons, petitioner No.1-Ramzan and petitioner No.2-Yusuf Gandhi armed with revolver were heading against him and, therefore, advocates present there took Noorbhai in STD booth. It was alleged that petitioner No.2 Yusuf Gandhi, who was armed with iron phant, gave blows to his brother on his left eye and other accused persons gave kick and fist blows to the persons present with him. In pursuance of registration of FIR, petitioners were arrested. It is stated that except the petitioner Nos.3,10 and 11, other petitioners were enlarged on bail either by the Sessions Court or by this Court. Since the petitioners apprehend that order of detention is likely to pass against them by the respondent No. 2 or respondent No.3, this petition is preferred.
3. An affidavit-in-reply has been filed by respondent No.2, Commissioner of Police, Ahmedabad, inter alia contending that the petition filed by the petitioners was not maintainable at law. The present petition was filed with misconception of facts and law at the pre-execution stage of detention order. It is also contended that order of detention has been passed against petitioner Nos.1,2,4,5,6,7,8,11, 12 and 13 on 5-10-2011 branding them as 'dangerous persons' under the provisions of Sec.2(c) of PASA Act, however, they could not be detained as order of detention could not be served. It is also contended that they are required to surrender before challenging the order of detention which is yet not served on them. It is further contended that since the detaining authority was subjectively satisfied after taking into consideration all the relevant materials placed before it and the statements of two secrete witnesses against them that their activities were prejudicial to the maintenance of public order, order of detention was passed against them on 5-10-2011. The efforts made to serve at the place of residence, business and other possible places, also came to be futile and since the they are evading the service and execution of the detention order passed under PASA Act and not a law abiding citizen, the present petition at a pre-execution stage is not tenable in law. It is specifically contended that against petitioner Nos.3,9 and 10, no detention order has been passed till date and no proposal is pending as on date. It is further contended that other petitioners will have the grounds of detention after the detention order is effected. However, they cannot compel the authorities to disclose the grounds of detention before it is executed without surrendering to the authorities. It is further contended that interfering with the order at this stage without they surrendering to the authorities would defeat the very purpose of the PASA Act. It was, therefore, submitted that the petition was liable to be dismissed, particularly when the detenu absconded and the order of detention along with grounds of detention and other documents could not be personally served and could not be executed.
4. It may be noted that this Court (Coram: Z.K.Saiyed, J.) vide order dated 25-11-2011 granted ad-interim lief in terms of prayer para 7(B).
5. Heard learned Senior Counsel, N.D.Nanavaty for Mr.Mitesh R.Amin for the petitioners and learned Asstt. Government Pleader, Ms.Krina Calla for the respondents.
6. Rule. Learned AGP, Mrs.Krina Calla, waives service of notice of rule for the respondents.
7. Learned Senior Counsel, Mr.N.D.Nanavaty, for the petitioners has submitted that the petition in the present format is maintainable and tenable both on facts as well as on law to substantively challenge the order of detention at a pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Dipak Bajaj V s. State of Maharashtra reported in (2008) 16 SCC page 14. According to him, the Hon'ble Apex Court considering its earlier decision in Alka Gadia's case and the objections taken at the pre-execution stage by the otherside on identical grounds has held that “we are of the opinion that the five grounds mentioned therein on which Court can set aside the detention order at pre- execution stage are only illustrative and not exhaustive.” He has also relied on a decision of a Division Bench of this Court (Coram: Hon'ble the Chief Justice and Hon'ble Mr.Justice J.B.Pardiwala) in the case of Artiben, W/o Nandubhai Jayantibhai Sujnani Vs. Commissioner of Police delivered in Letters Patent Appeal No.2732 of 2010 on 28-3-2011. According to him, there is no material to indicate that the alleged activity of petitioners is affecting or likely to affect adversely the maintenance of public order and hence, the order of detention is illegal and bad in law.
8. Ms.Krina Calla, learned Asstt. Government Pleader, on the other hand, has submitted that this petition is at the pre-execution stage without surrendering to the order of detention. Unless and until the petitioners surrender, they would not be entitled to get the order as well as the grounds thereunder and the petitioners would not be entitled to copies of the same by filing the present petition. It is further submitted that it is for the Hon'ble Court to peruse the documents but the petitioners cannot insist the Hon'ble Court to place all the relevant materials relied upon by the detaining authority in passing the order of detention.
9. It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, it appears that a solitary case being C.R.No.I-97 of 2011 dated 15-7-2011 for the offences punishable under Secs.143, 147, 148, 149, 323 and 326 of IPC, Sec.135(1) of B.P.Act and Sec.25(1)(b) of Arms Act has been registered against the petitioners and other 25 persons before Karanj Police Station. It appears that on the basis of said solitary case, the respondent No.2 has come to the subjective satisfaction that the activities of the petitioners amounted to disturbing the public order.
10. It is to be noted that there are allegations only against the accused petitioner No.1-Ramzan and petitioner No.2- Yusuf Gandhi that they were armed with revolver while Yusuf Gandhi was also having iron phant on his other hand and he gave blows with it on the left side eye of brother of the complainant when the complainant Noorbhai, his brother and other persons were returning after attending the court case in the compound of City Sessions Court, Ahmedabad, on 15-7-2011. As far as petitioner Nos.1 and 2 are concerned, there are evidence of secret witnesses wherein it is found that they are carrying on activities of such a nature which spread fear in the mind of the people. It is thus found that they were doing dangerous activities and, therefore, in the opinion of this Court, considering the statement of secret witnesses and other witnesses, prima facie, it is found that their activities are dangerous to the public and therefore, they are required to be detained. Hence, question does not arise to interfere with the detention order passed against petitioner Nos.1 and 2.
11. As far as petitioner Nos.3,9,10 are concerned, it is specifically stated in paragraph No.13 of the affidavit-in- reply filed on behalf of respondent No.2 that no proposal is pending with him for passing the order of detention against petitioner Nos.3,9 and 10. In view of the above, this petition qua the petitioner Nos.3,9 and 10 is premature.
12. The allegation against other accused was that they gave fist and kick blows to other persons who were there with the complainant. It is to be noted that apart from the fact that a solitary offence is registered against them, no other materials are there on record against them and hence, the subjective satisfaction arrived at by the detaining authority against these petitioners is said to have been vitiated and, therefore, order of detention passed against those petitioners require to be quashed and set aside and petition qua those petitioners can be allowed.
13. This Court, in the case of Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat [(2001) (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), held that the cases wherein the detention order passed on the basis of the statements of the witnesses fall under the maintenance of “law and order” and not “public order”.
14. Applying the ratio of the above decisions, it is clear that before passing an order of detention of a detenu, the detaining authority must come to a definite finding that there is threat to the “public order” qua petitioner Nos.4,5,6,7,8,11, 12 and 13 and it is very clear that their case would not fall within the category of threat to “public order”. In the opinion of this Court, the activities of these petitioners can, by no stretch of imagination, can be said to be disturbing the public order. Therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non- application of mind qua these petitioners and the impugned order deserves to be quashed and set aside qua petitioner Nos.4,5,6,7,8,11, 12 and 13. In view of the above, when the order of detention has been passed by the detaining authority against petitioner Nos.4,5,6,7,8,11, 12 and 13 without having adequate grounds for passing the said order, it cannot be sustained against them and, therefore, it deserves to be quashed and set aside qua them.
15. Thus, the petition is allowed qua petitioner Nos.4,5,6,7,8,11, 12 and 13. The impugned order dated 5-10-2011 passed by the Police Commissioner, Ahmedabad City, against the petitioner Nos.4,5,6,7,8,11, 12 and 13 is hereby quashed and set aside. Rule is made absolute qua petitioner Nos.4,5,6,7,8,11, 12 and 13.
16. This petition is rejected qua petitioner Nos.1 and 2. Rule qua them is discharged. Ad-interim relief granted earlier stands vacated qua them.
17. This petition qua petitioner Nos.3,9 and 10 stands disposed of as being premature. Rule accordingly. Ad- interim relief granted qua them stands vacated. Direct service is permitted.
[M.D.SHAH,J.] radhan