Allowed

Devendrasinh Ramfulsinh Parihar v. Commissioner of Police

Gujarat HC2 Sept 2014SCA/8808/2014

Case brief

AI extract

What is this about?

The High Court of Gujarat quashed a Preventive Detention Order issued under the Gujarat PASA Act. The Court held that the alleged offences by the petitioner pertained to law and order rather than public order, and the detaining authority had failed to apply its mind to the threat posed and the pending criminal charges.

What did the court decide?

The impugned detention order dated 24/6/2014 was quashed and set aside, and the detenu was ordered to be set at liberty forthwith.

Devendrasinh Ramfulsinh Parihar Vs Commissioner of… — Writ and Judicial Review | Gujarat HC (2014)

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C/SCA/8808/2014 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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SPECIAL CIVIL APPLICATION NO. 8808 of 2014 With

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CIVIL APPLICATION NO. 7021 of 2014 In

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SPECIAL CIVIL APPLICATION NO. 8808 of 2014

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE S.G.SHAH

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?

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5 Whether it is to be circulated to the civil judge ?

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DEVENDRASINH RAMFULSINH PARIHAR....Petitioner(s)

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Versus

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COMMISSIONER OF POLICE & 2....Respondent(s)

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Appearance:

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MR NM KAPADIA, ADVOCATE for the Petitioner(s) No. 1

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MS JD JHAVERI, AGP for the Respondent(s) No. 1 - 3

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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH

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Date : 02/09/2014

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CAV COMMON JUDGMENT

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Page 1 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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Perused the petition, materials supplied
to the detenu, detention order and affidavit-in-
reply filed by the detaining authority and heard
learned advocate Mr. Kapadia for the petitioner
and learned A.G.P. Ms. Jhaveri for the respondent
– State.

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2This petition under Article 226 of the
Constitution of India is directed against the
order of detention dated 24/6/2014 passed by the
respondent authority 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 ”bootlegger” as defined under Section 2(b)
of the Act.

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3Learned advocate for the detenu submits
that order of detention impugned in this petition
deserves to be quashed and set aside on the round
that three offences registered against the detenu
before the Gomatipur Police Station vide
Prohibition C.R. No. 5072, 5075 and 5076 of 2014
for the offences punishable under Sections 66(1)
(b), 65(a)(e), 81, 116(b), etc., of Prohibition
Act is not of such magnitude and intensity as to
have the effect of disturbing the public order so
as to pass an order under Section 3(1) of the
PASA Act. Learned advocate for the petitioner has
further submitted that the detaining authority
has not applied its mind to the vital facts and

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Page 2 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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there was non-application of mind before
recording the order of detention.

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The petitioner has further submitted
that he has been ill-treated and beaten by the
police. Though it may not be the sole ground to
allow this petition, it is certainly a ground to
consider such petition at pre-detention stage.
Therefore, even if we do not endorse the
allegation of the petitioner, he deserves to be
protected.

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4Learned A.G.P. for the respondent –
State supported the detention order passed by the
authority and submitted that sufficient material
and evidence was found during the course of
investigation, which was also supplied to the
detenu, indicating that the detenu is in the
habit of indulging into activities as defined
under Section 2(b) 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. For such submission, the learned A.G.P.
took me through the grounds upon which detaining
authority satisfied to detain the petitioner.

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5Section 2(b) of the Act defines the term
“bootlegger” as under:

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“2(b). “bootlegger” means a person who
distills, manufactures, slurs, transports,

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Page 3 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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imports, exports, sells or distributes any
liquor, intoxicating drug or other intoxicant
in contravention of any provision of the
Bombay Prohibition Act, 1949 (Born. XXV of
1949) and the rules and orders made
thereunder, or of any other law for the time
being in force or who knowingly expends or
applies any money or supplies any animal,
vehicle, vessel or other conveyance or any
receptacle or any other material whatsoever
in furtherance or support of the doing of any
of the things described above by or through
any other person, or who abets in any other
manner the doing of any such thing.”

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6The order of detention is passed on the
basis of what has come to be known as the
subjective satisfaction of the detaining
authority such subjective satisfaction has to be
arrived at on two points. Firstly, on the
veracity of facts imputed to the person to be
detained and secondly, on the prognostication of
the detaining authority that the person concerned
is likely to indulge again in the same kind of
notorious activities. Whereas, normal laws are
primarily concerned with the act of commission of
the offence, the detention laws are concerned
with character of the person who has committed or
is likely to commit an offence. The detaining
authority has, therefore, to be satisfied that
the person sought to be detained is of such a
type that he will continue to violate the laws of
the land if he is not preventively detained. So,
the commission of infraction of law, not done in

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Page 4 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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an organized or systematic manner, may not be
sufficient for the detaining authority to
justifiably come to the conclusion that there is
no alternate but to preventively detain the
petitioner.

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7Having 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/s 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 detenu cannot be said
to be germane for the purpose of bringing the
detenu within the meaning of Section 2(b) 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

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that the whole social apparatus is in peril
disturbing public order at the instance of such
person. In view of the allegations alleged in the
FIR/s the Court is of the opinion that the
activities of the detenu cannot be said to be

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Page 5 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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dangerous to the maintenance of public order and
at the most fall under the maintenance of ”law
and order.” In this connection, it will be
fruitful to refer to a decision of the Supreme
Court in Pushker Mukherjee v/s. State of West
Bengal [AIR 1970 SC 852], where the distinction
between 'law and order' and 'public order' has
been clearly laid down. The Court observed as
follows:

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“Does the expression "public order" take in
every kind of infraction of order or only
some categories thereof?

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It is manifest that every act of assault or
injury to specific persons does not lead to
public disorder. When two people quarrel and
fight and assault each other inside a house
or in a street, it may be said that there is
disorder but not public disorder. Such cases
are dealt with under the powers vested in the
executive authorities under the provisions of
ordinary criminal law but the culprits cannot
be detained on the ground that they were
disturbing public order. The contravention of
any law always affects order but before it
can be said to affect public order, it must
affect the community or the public at large.
In this connection we must draw a line of
demarcation between serious and aggravated
forms of disorder which directly affect the
community or injure the public interest and
the relatively minor breaches of peace of a
purely local significance which primarily
injure specific individuals and only in a
secondary sense public interest. A mere
disturbance of law and order leading to
disorder is thus not necessarily sufficient
for action under the Preventive Detention Act
but a disturbance which will affect public
order comes within the scope of the Act.”

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Page 6 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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8It is generally seen that though some of
the accused are repeatedly detained on different
occasions for different offences, only because of
nondisclosure of proper information and in all
such detention orders, such orders are generally
quashed and set aside by the Court. It is also
seen that because of quashing of previous
detention order, competent authority could not
consider the grounds of detention under such
order which is already quashed as a ground for
detention for subsequent offences by the same
detenu. However, when competent authorities are

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not abiding all other cited cases while passing
the order of detention based upon three offence,
it is surprising to note that at no point of time
they challenged the observation of any Court that
when previous order of detention has been
quashed, it cannot be considered in subsequent
detention. It goes without saying that if a
particular detenu continuous to commit the
similar offence repeatedly, and if he is required
to be detained repeatedly then at-least at some
point of time, the competent authority shall
compile all the information and shall consider it
for fresh detention order as and when necessary
and shall produce all such information before the
Court so as to avoid the quashing of such
detention order. If competent authority fails to
take care of such exercise and when in impugned

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Page 7 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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order of detention all such facts were not
disclosed or considered for passing such order,
the detention order is required to be dealt with
as it is without considering the additional
disclosure in affidavit-in-reply by the
respondents.

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8.1In the present case, it seems that
petitioner has been detained several times but at
present, the detention order under challenge does
not disclose all such facts so as to enable the
petitioner to properly represent his case. Hence,
there is no option but to consider that present
order of detention is solely based upon a three
offences. Therefore, considering the settled
legal position that no person can be detained for
three offences, the Court has no option but to
quash and set aside the order of detention,
irrespective of quantity of LIQUOR found from the
detenu and other material that might have been
found in the affidavit-in-reply.

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circumstances, it would be necessary to observe
that the competent authority is not precluded to
disclose all material facts while detaining the
petitioner if so require for any offence that he
might commit hereinafter. In other words, though
impugned order is quashed and set aside at

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Page 8 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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present, it would not come in way of the
competent authority for quoting such FIR/s and
order of detention, thereby to treat petitioner
as a habitual offender in case of commission of
offence repeatedly.

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8.3No doubt, neither the possibility of
launching of a criminal proceedings nor pendency
of any criminal proceedings is an absolute bar to
an order of preventive detention. But, failure of
the detaining authority to consider the
possibility of either launching or pendency of
criminal proceedings may, in the circumstances of
a case, lead to the conclusions that the the
detaining authority has not applied its mind to
the vital question whether it was necessary to
make an order of preventive detention. Since
there is an allegation that the order of
detention is issued in a mechanical manner
without keeping in mind whether it was necessary
to make such an order when an ordinary criminal
proceedings could well serve the purpose. The
detaining authority must satisfy the court that
the question too was borne in mind before the
order of detention was made. In the case on hand,
the detaining authority failed to satisfy the
court that the detaining authority so bore the
question in mind and, therefore, the court is
justified in drawing the inference that there was

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Page 9 of 11

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C/SCA/8808/2014 CAV JUDGMENT

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no application of mind by detaining authority to
the vital question whether it was necessary to
preventively detain the detenu. It is also
fruitful to refer to the decision of the Hon’ble
Apex Court rendered in the case of Rekha V/s.
State of Tamil Nadu through Secretary to
Government and another reported in (2011)5 SCC
244wherein, it is observed by the Hon’ble Apex
Court that if a person is liable to be tried, or
is actually being tried for a criminal offence
but the ordinary criminal law will not be able to
deal with the situation, then and only then,
preventive detention be taken recourse to.

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9As a result of hearing and perusal of
the record, it appears that the material that was
available with the detaining authority was the
offences registered against the detenu and on
that basis, it cannot be said that the activity
of the detenu has become a threat to the
maintenance of 'public order' and 'public
health'. Mere involvement of the detenu in such
activity may not amount to dangerous activity by
the detenu and mere mention of them, unless
supported by any evidence, cannot be said to be
material germane for the purpose of arriving at
the subjective satisfaction that the activity of
the detenu is prejudicial to the maintenance of
'public order' and 'public health'. For the sake

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Page 10 of 11

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of repetition, the commission of offence does not
exhibit or disclose that the petitioner is doing
infraction of law in an organized or systematic
manner so as to come to the conclusion that there
is no alternate but to preventively detain the
petitioner.

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10In the result, this petition is allowed.
The impugned order of detention dated 24/6/2014
passed by the respondent authority is hereby
quashed and set aside. The detenu is ordered to
be set at liberty forthwith if not required in
any other case. Rule is made absolute
accordingly. Direct service is permitted.

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In view of the above order, the civil
application does not survive and it stands
disposed of accordingly.

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(S.G.SHAH, J.)

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* Pansala

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Devendrasinh Ramfulsinh Parihar v. Commissioner of Police

Case brief

What is this about?

What did the court decide?

Devendrasinh Ramfulsinh Parihar v. Commissioner of Police

Case brief

What is this about?

What did the court decide?

What the court decided

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