Petitioner challenged detention order under Gujarat PASA Act claiming he was not a 'cruel person' due to lack of habitual involvement. Court held that definition requires habitual repetition and quashed detention order based on single offence.
Order of detention dated 25.03.2014 quashed; detenue set at liberty forthwith; Rule made absolute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/6776/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6776 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
================================================================
================================================================
SIDIK MAMADBHAI MOVAR MIYANA
Versus
STATE OF GUJARAT & 2
================================================================
Appearance:
MS JAYSHREE C BHATT, ADVOCATE for the Petitioner MR BIPIN BHATT AGP for the Respondents
================================================================
CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 18/09/2014
ORAL JUDGMENT
Page 1 of 3
C/SCA/6776/2014 JUDGMENT
[1] By way of this petition, the detenue has challenged the order of detention dated 25.03.2014 passed by concerned authority herein under the provisions of sub-sec(2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA Act”).
[2] Learned advocate, appearing for the petitioner detenue has invited my attention to the order of detention dated 25.03.2014 , by which, the detenue was arrested and sent to Bhavnagar District Jail. The ground of detaining the accused is that one offence was registered against the petitioner under the provisions of section 114 etc. of the Indian Penal Code; sections 5,6, 8 and 10 of the Prevention of Cruelty to Animal Act, 1954; section 11 DL of the Bombay Cattle Prohibition Act, 1960. 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 this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of the PASA Act. It is submitted that the order is vitiated because only on the basis of one offence 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.
[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:-
Page 2 of 3
C/SCA/6776/2014 JUDGMENT
“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 one offence 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 offence.
[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] In view of the above facts and circumstances of the case, the petition is allowed. The order of detention dated 25.03.2014 passed by the respondent - authority is quashed and set aside. The detenu 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.
(A.J.DESAI, J.)
vijay
Page 3 of 3
2 issues framed by the court
Whether subjective satisfaction to brand petitioner as 'cruel person' and detain under PASA Act is valid when no evidence shows habitual involvement.
Whether the detaining authority failed to record necessary satisfaction of repetitiveness regarding offences punishable under Section 8 of Bombay Animal Preservation Act.
3 provisions across 2 enactments
Sidik Mamadbhai Movar Miyana
State of Gujarat
A.J. Desai
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
