Petitioner challenged a detention order under the Gujarat Prevention of Anti-Social Activities Act, arguing mere registration of FIRs did not establish a threat to public order.
Detention order dated 03.01.2018 quashed; petitioner set at liberty forthwith.
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C/SCA/690/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 690 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G. SHAH
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BHAVINKUMAR @ PINTO RAMESHBHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
HL PATEL ADVOCATES(2034) for the PETITIONER(s) No. 1 MR.NIRAJ ASHAR, AGP for the RESPONDENT(s) No. 1 GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 7 RULE SERVED BY DS(65) for the RESPONDENT(s) No. 1,2,3,4,5,6
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 10/04/2018
ORAL JUDGMENT
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short the Act] by detaining the detenue as a dangerous person as defined under section 2[c] of the Act.
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of the society, posing a threat to the very existence of the normal and routine life of the people at large or that on the basis of the criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by the rule of law by disturbing the public order.
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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, it cannot be said that the detenue is a dangerous person within the meaning of Section 2[c] of the Act. Except 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. In view of the ratio laid down by the Honble Supreme Court in the cases of [i] Ranubhai Bhikhabhai Bharwad [supra], [ii] Ashokbhai Jivraj @ Jivabhai Solanki [supra] and [iii] Mustakmiya Jabbarmiya Shaikh [supra], 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. Further, there are serious allegations against the petitioner. On perusal of the jail record it seems that police has not taken proper care in investigating offences and petitioner was arrested only on presumption and therefore I to not see any reason to detain the petitioner by confirming the detention order. However, it is made clear that this order will not influence the trial in any manner.
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the Act.
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time they have 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 detenue continues 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 up such exercise and when in impugned 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.
8.1 In 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 three offences. Therefore, considering the settled legal position that no person can be detained for three offences.
8.2 In view of above facts and circumstances, it would be necessary to observe that the competent authority is not precluded from disclosing all material facts while detaining the petitioner if so required for any offence
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that he might commit hereinafter. In other words, though impugned order is quashed and set aside at present, it would not come in way of the competent authority for quoting such FIR and order of detention, thereby to treat petitioner as a habitual offender in case of commission of offence repeatedly.
8.3 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 of 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 as to 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 no application of mind by detaining authority to the vital question of 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
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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 can be taken recourse to.
(S.G. SHAH, J)
VARSHA DESAI
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2 issues framed by the court
Whether registration of FIRs alone establishes that a detainee is a dangerous person under the Prevention of Anti-Social Activities Act.
Whether the detaining authority applied its mind to the necessity of preventive detention when ordinary criminal proceedings could suffice.
Colour shows how this judgement treated each authority
Ranubhai Bhikhabhai Bharwad [Vekaria] v. State of GujaratRelied on¶27
Ranubhai Bhikhabhai Bharwad [Vekaria] v. State of Gujarat
Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, SuratRelied on¶27
Ashokbhai Jivraj @ Jivabhai Solanki v. Police Commissioner, Surat
Mustakmiya Jabbarmiya Shaikh v. M.M. MehtaRelied on¶27
Mustakmiya Jabbarmiya Shaikh v. M.M. Mehta
Rekha V/s. State of Tamil Nadu through Secretary to Government and anotherReferred¶50
Rekha V/s. State of Tamil Nadu through Secretary to Government and another
1 provisions across 1 enactments
Bhavinkumar Pinto Rameshbhai Parmar
State of Gujarat
S.G. Shah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
