This petition challenges enforcement, implementation and execution of the order of detention prepared and sought to be served upon the petitioner by the respondent No.2 under the provisions of Section 3(2) of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereafter referred to as 'PASA Act' for short) by branding the petitioner as a dangerous person.
The brief facts as arising from the petition are that an FIR being C.R.No.I-70 of 2010 with Athwa Lines Police Station dated 16-4-2010 for the offences punishable under Secs.365, 143, 147, 148, 149, 302, 120B, 188 and 114 of IPC has been registered against the petitioner and other accused. The petitioner was arrested on 21-4-2010 and he was released on bail by this Court vide order dated 22-9-2011 passed in Cri.Misc.Appln.No.12676 of 2011. On the basis of registration of said solitary offence, a detention order has been passed by the respondent No.2 on 11-1-2012 against the co-accused namely, Sheikh Mobin @ Mobin Dadhi and he has been branded as a dangerous person. As the petitioner is also a co-accused in the said offence, he is having an apprehension of he also being detained by passing similar type of order by the respondent No.2 by branding him as a dangerous person and hence, this petition is preferred at a pre-execution stage.
An affidavit in reply was filed by the respondent No.2 contending inter alia that order of detention has been passed against the petitioner on 11-1-2012. It is further contended that the petitioner was arrested in connection with the said offence and he was released on bail and since it appeared that the petitioner is continuing his anti-social activities, the authority did not have any other option but to pass the detention order to take preventive action against the petitioner to restrict his anti-social activities and, therefore, detention order passed against the petitioner is legal and proper and hence, at the stage of pre-detention, the Court may not go into the merits of the orders passed by the authorities. It is further contended that prior to this offence, the petitioner was involved in more than 30 other offences of serious nature and he was earlier detained as 'bootleger' and 'dangerous person and, therefore, considering his past conduct and also looking to the fact that the petitioner was carrying on his anti-social activities, order of detention has been passed. It is also contended that the present petition is filed with misconception of facts and law at the pre-execution stage of detention order and hence, the present petition requires to be dismissed.
Heard learned counsel for the petitioner, Mr.D.M.Thakkar for M/s Thakkar Associates and learned Asstt. Government Pleader, Mrs.Krina Calla for the respondents.
Rule.
Learned AGP, Mrs.Krina Calla, waives service of notice of rule for the respondents.
It is submitted by learned counsel, Mr.D.M.Thakkar, for the petitioner 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. It is further submitted that the petitioner has been falsely implicated in a Criminal Case being C.R.No.I-70 of 2010 for the offences punishable under Secs.143, 147, 148, 149, 302, 365, 120B, 188 and 114 of IPC has been registered at Athwa Lines Police Station. It is further submitted that based on the said solitary offence, order of detention is passed. It is further submitted that the petitioner was arrested on 21-4-2010 and he was released on bail vide order dated 22-9-2011 passed in Cri.Misc.Appln.No.12676 of 2011 by this Hon'ble Court and this detention order has been passed much later on 11-1-2012. He has drawn attention of this Court to the affidavits sworn by Sheikh Usman Sheikh Safi, who is the father of the victim and also of Sheikh Rasid Sheikh Safi, who is the uncle of the victim and also the complainant, stating that by misunderstanding the name of the petitioner was mentioned at the time of lodging the complaint. According to him, said affidavits and also aspect of releasing petitioner on bail by this Hon'ble Court has not been considered by the detaining authority while passing the detention order. According to him, the solitary criminal case referred by the detaining authority does not disclose that the petitioner is a habitual person so as to brand him as dangerous person under Sec.3(2) so as to detain the petitioner under Sec.3(1) of the PASA Act. He has relied on the cases of Mahesh Ramjilal Nath Vs. State of Gujarat reported in 1999(2) GLR page 1745 and Ranubhai Bhikhabhai Bharwad (Vekaria) Vs. State of Gujarat reported in 2000(3) GLR page 2696 and submitted that except the so-called registration of solitary criminal case, there is no other material to indicate that the alleged activity of petitioner is affecting or likely to affect adversely the maintenance of public order and hence, the order of detention is illegal and bad in law. It is therefore requested that the order of detention may be quashed and set aside.
Ms.Krina Calla, learned Asstt. Government Pleader has vehemently opposed this petition by submitting that this petition is at the pre-execution stage without surrendering to the order of detention. It is further submitted that it is not true that only a solitary offence has been registered against the petitioner. Accordingly to her, there were more than 30 cases registered against the petitioner and the petitioner has been detained on many earlier occasions by branding him as Bootlegger and dangerous person. She has further submitted that since it appeared to the sponsoring authority that the petitioner has been continuing with his anti-social activities, the proposal was sent to the detaining authority, who, on perusal of the documents placed before him, was satisfied that the petitioner is a habitual in doing such anti-social activities and hence, in order to prevent him from doing further anti-social activities, he is required to be detained and hence, impugned order of detention is just, legal and proper and hence, it is requested that this Hon'ble Court may direct the petitioner to surrender first and then seek grounds of detention. It is further submitted that if the petitioner does not surrender, he would not be entitled to get the order as well as the grounds thereunder.
This Court has gone through the order of detention passed by the respondent No.2 authority along with the relevant papers together with the affidavit filed by the detaining authority as well as the decisions cited by learned advocate for the petitioner. It is clear from the affidavit filed by the detaining authority that there were thirty other serious offences registered the petitioner in past. However, the detaining authority has relied only on the solitary offence registered against the petitioner for passing the detention order. It is to be noted that the petitioner was arrested on 21-4-2010 and he was released on bail on 22-9-2011 and though no untoward incident took place during this period, order of detention has been passed much later on 11-1-2012. Apart from this, it is clear from the affidavits of Sheikh Usman Sheikh Safi and Sheikh Rasid Sheikh Safi that due to misunderstanding, the name of the petitioner was mentioned at the time of lodging the complaint. The These aspects were not considered by the detaining authority. Moreover, the solitary offence does not disclose that he is a habitual dangerous person. There is no other material on record to show that the petitioner is carrying on dangerous activities. It is to be noted 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" and it is very clear that the present case would not fall within the category of threat to "public order".
In the opinion of this Court, the activities of the petitioner can, by no stretch of imagination, 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 and in view of judgment of Mahesh Ramjilal Nath Vs. State of Gujarat reported in 1999(2) GLR page 1745, the impugned order, deserves to be quashed and set aside. In view of the above, when 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, therefore, it deserves to be quashed and set aside.
The petition is allowed. The order of detention prepared and sought to be served upon the petitioner by the respondent No.2 is hereby quashed and set aside. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan Top