1. By passing the order in Misc.Civil Application No.3398 of 2012, the order dated 26/12/2012 passed in the present petition is recalled. It is clarified that order of detention is not revoked and therefore, the matter is taken up for final hearing on merits.
2. By filing present petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order of detention dated 16/10/2012 passed against the detenue by the respondent No.2 – the Commissioner of Police, Rajkot City, in exercise of power under sub-section (2) of Section 3 of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “PASA Act”). The detenue is branded as “dangerous person”.
Heard learned advocate Mr.Pratik Jasani, for the petitioner and learned AGP Mr.Janak Raval for the respondent No.3.
3. The detenue came to be detained as “dangerous person” on his involvement in the offences being (i) CR No. I – 161 of 2012; (ii) CR No.I-185 of 2012; (iii) CR No.I-270 of 2012 and (iv) CR No.I-313 of 2012 registered before Malaviya Nagar Police Station respectively.
4. It has been submitted by the learned Counsel for the petitioner that the allegations made against the detenue are not correct; that the material collected by the detaining authority and looking to the statement recorded by the detaining authority, it cannot be said that the alleged activities of the petitioner would fall within the purview of “dangerous person”.
5. I have gone through the grounds of detention and considered the arguments advanced by the learned Counsel for the petitioner as well as the learned A.G.P.
6. The Court is of the opinion that there is much substance in the arguments advanced by learned Counsel for the petitioner. The detaining authority has placed reliance on the aforesaid registered offences and statements of witnesses. After recording the subjective satisfaction about the detenue being a dangerous person and with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, the impugned order of detention was passed by the detaining Authority.
7. Except the 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 the point of relying on this point. In view of the ratio laid down by the Hon'ble Supreme Court in the case of (i) DISTRICT COLLECTOR, ANANTHAPUR v/s. V.
LAXMANAN, reported in (2005) 3 SCC 663; (ii) AMANULLA KHAN KUDEATALLA KHAN PATHAN v/s.
STATE OF GUJARAT, reported in AIR 1999 SC 2197; and (iii) MUSTAKMIYA JABBARMIYA SHAIKH v/s. M.M.
MEHTA, reported in (1995) 3 SCC 237 the Court is of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of pubic order. In the case of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI v/s. POLICE COMMISSIONER, Surat, reported in 2001 (1) GLH 393, having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v/s. State of Bihar, reported in AIR 1966 SC 740, this Court held that the cases wherein the detention order are passed on the basis of the statements of such witness fall under the maintenance of “law and order” and not “public Order”.
8. Applying the ratio of the above decisions, it is clear that before passing an order of detention, the detaining authority must come to a definite findings 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 a public order. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.
9. In the result, the petition is allowed. The impugned order of detention dated 16/10/2012 passed by respondent No.2 herein is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith if he is not required to be detained in connection with any other case. Rule is made absolute accordingly.
Direct service is permitted.
sd/-
[A.J.DESAI, J.] *dipti