Allowed

Abhishek @ Bittu Ranjitsinh Rajput v. State of Gujarat

Gujarat HC12 Jun 2018SCA/2212/2018

Case brief

AI extract

What is this about?

This single judge allowed a writ petition filed at the pre-execution stage under Article 226, quashing a preventive detention order. The court held that the alleged minor offences did not disturb public order but merely affected law and order. Consequently, the detention lacked valid grounds under Section 3(2) of the Gujarat PESA Act.

What did the court decide?

The order of detention was quashed and the petitioner was restrained from being detained based on the solitary FIR registered against him.

Abhishek @ Bittu Ranjitsinh Rajput Vs State… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/SCA/2212/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 2212 of 2018

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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 or any order made thereunder ?

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ABHISHEK @ BITTU RANJITSINH RAJPUT Versus

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STATE OF GUJARAT

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Appearance:

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J M TALOTA(7443) for the PETITIONER(s) No. 1 DS AFF.NOT FILED (R)(71) for the RESPONDENT(s) No. 2,3 MS JYOTI BHATT, AGP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH

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Date : 12/06/2018 ORAL JUDGMENT

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1.With the consent of the learned advocates appearing for the respective parties, the present petition is taken up for final hearing today.

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By way of this petition under Article 226 of the Constitution of India, the petitioner prays to issue a writ of mandamus or any

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other appropriate writ, order or direction to
set aside the order of detention, if any,
passed by the detaining authority against the
petitioner under the Gujarat Prevention of
Anti-social Activities Act, 1985 (for short,
the Act) in exercise of powers under Sub-
Section (2) of Section 3 of the Act as being
illegal, null and void, arbitrary, without
jurisdiction and competence suffering from
legal mala fides and violative of Articles
14, 19, 21 and 22 of the Constitution of
India.

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The petitioner apprehends that the petitioner is likely to be detained under the Act on the pretext of F.I.R. being C.R.No.5023 of 2018 with Amraiwadi police station, Ahmedabad for the offences punishable u/ss.65AE, 66(B), 116(1)(B), 81 and 98(2) of the Prohibition Act.

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Learned advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at preexecution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj V/s. State of Maharashtra and another reported in (2008)16 SCC 14 . According to

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C/SCA/2212/2018 JUDGMENT

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him, the Hon'ble Apex Court, considering its
earlier decision in the case of Additional
Secretary to the Government of India and
others V/s. Smt. Alka Subhash Gadia and
another reported in 1992 Supp.(1) SCC 496 and
the objections taken at the pre-execution
stage by the other side therein, on the
identical ground, has held that "we are of
the opinion that the five grounds mentioned
therein on which the Court can set-aside the
detention order at pre execution stage are
only illustrative not exhaustive". Learned
advocate for the petitioner also relied upon
the decision of the Division Bench of this
Court in the case of Mahendrasinh Mangalsinh
Jadeja V/s. State of Gujarat and other
delivered in Letters Patent Appeal No.1495
of 2013 on 24.12.2013. Lastly, he has
submitted that it is an established law that
the detention in case of offence registered
against detenu under the Act, is against the
law. According to him, except aforesaid
offence, there is no material to indicate
that the alleged activity of the petitioner
is affecting or likely to affect adversely to
the maintenance of public order and hence,
the order of detention is illegal and bad in
law.

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Learned A.G.P. for the State, on the other

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C/SCA/2212/2018 JUDGMENT

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hand, submitted that this petition is at pre-
execution stage without surrendering before
challenging the order of detention. Unless
and until the petitioner surrenders, he would
not be entitled to get the order as well as
the grounds thereunder and the petitioner
would not be entitled to copies of the same
by filing the present petition.

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6.Before the petition is taken on merits, it is
necessary to keep in mind the law as
reiterated by the Division Bench of this
Court in the case of Mahendrasinh Mangalsinh
Jadeja (supra) in the matter of petitions
challenging the detention order at pre-
execution stage and, more particularly, para
11 thereof, which reads as under:-

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11. The learned Single Judge has
dismissed the writ petition filed by the
appellant without perusing the order of
detention and the grounds of detention
solely on the premise that as per the
prevailing position of law the writ
petition to challenge the order at pre-
executionstagestageisnot
maintainable and that the authorities
cannot be directed to produce the
detention order and the grounds on the
record of the petition. It is bounden
duty of the Court to call for the order
of detention for its own perusal to
satisfy itself as to the validity of the
detention order. Unless the Court
directs the authorities to produce the
detention order for its perusal, it

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would not be possible for the Court to
test the detention order and come to the
conclusion whether the detention order
stands scrutiny of the norms and the
guiding principles enunciated in the
case of Alka Subhash Gadia (supra) and
Subhash Poptalal Dave (supra). In this
premise, we are of the opinion that the
impugned judgment of the learned Single
Judge cannot be sustained. The matter
needs to be remanded to the learned
Single Judge to decide the petition
afresh after calling for the detention
order and grounds for detention for its
own perusal and to independently decide
whether it is a fit case to quash the
detention order at a pre-detention stage
or not. The appeal, therefore, succeeds
to the aforesaid extent. Interim relief
granted in the writ petition by the
learned Single Judge shall continue till
final disposal of the main writ petition
by the learned Single Judge. In view of
the disposal of main appeal, no order is
required to be passed on the Civil
Application and the same stands disposed
of accordingly. Direct Service is
permitted.

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The 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,

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C/SCA/2212/2018 JUDGMENT

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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 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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No 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

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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 non application
of mind by detaining authority to the vital
question whether it was necessary to
preventively detain the detenue. It is also
fruitful to refer to the decision of the
Honble 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 244 wherein, it is observed by
the Honble 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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In light of the above-mentioned decisions of the Hon'ble Apex Court and as discussed by the Division Bench of this Court in the case

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of Mahendrasinh Mangalsinh Jadeja (supra),
now, it is right time to examine whether in
the facts of this case, the Court should
interfere with the preventive detention order
at the pre-execution stage. It is true that
this petition is filed at a pre-execution
stage. However, from the grounds of
detention, produced for Courts perusal, it
appears that the offence/s, as aforesaid, has
been registered against the petitioner. This

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fact has not been controverted by the
detaining authority. It also appears that on
the basis of the above offence/s, the
detaining authority has come to the
subjective satisfaction that the activities
of the petitioner as "bootlegger" have
disturbed the public order. The preventive
detention order mentions that the petitioner
is a "bootlegger".

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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 laws of the land are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of

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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 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
aforesaid F.I.R/s., the Court is of the
opinion that the activities of the detenue
cannot be said to be 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
? 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

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C/SCA/2212/2018 JUDGMENT

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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
disturbingpublicorder.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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Therefore, it cannot be said that for the aforesaid offence/s registered against the petitioner, the petitioner could be considered to be a bootlegger, whose preventive detention is must for maintenance of public order. So, the Court is of the considered opinion that the petitioner is not a "bootlegger" and his act, as alleged in the detention order cannot disturb maintenance of public order and, therefore, the instant case

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would fall within 3rd and 4th grounds namely
it is passed for wrong purpose or it is
passed on vague, extraneous and irrelevant
grounds mentioned in the case of Alka Gadia
(supra) and, therefore, order of preventive
detention at pre-execution stage calls for
interference of this Court. As 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 deserves to be quashed and set
aside.

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In the result, the petition is hereby allowed since respondents want to detain the petitioner based on solitary offence registered against him. Thereby, now, respondents are restrained from detaining the petitioner based upon solitary offence registered vide F.I.R. being C.R.No.5023 of 2018 with Amraiwadi police station, Ahmedabad. However, it is made clear that such F.I.R. may be considered appropriately for further offence, if any, registered against the petitioner. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(S.G. SHAH, J)

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BINOY B PILLAI

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Abhishek @ Bittu Ranjitsinh Rajput v. State of Gujarat

Case brief

What is this about?

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Abhishek @ Bittu Ranjitsinh Rajput v. State of Gujarat

Case brief

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