The writ petition was filed by the petitioner before this court to issue any writ, direction or order for quashing and setting aside the impugned detention order passed by the respondent, detaining authority dated on 25.07.2020 under the Gujarat Prevention of Antisocial Activities Act, 1985 (hereinafter referred to as the ‘PASA Act’ on the basis of a false allegation of being involved in the alleged offence and thereby detained by the respondent authority proves malafide exercise of the power of respondent via order dated 25.07.2020.
Moreover, there was no evidence in support of detenu and also detenu was not provided with a reasonable opportunity to make an effective representation under Article 22(5) of the Constitution of India.
A petitioner is a dangerous person dealing in illegal activity of serious crime with deadly weapons which cause reasonable apprehension of danger and threat to the general public. Thereafter, two offence punishable, to which one set of an offence punishable under section 294(B), 506(2) and 114 of the IPC and Section 135(1) of the Gujarat Police Act(GPA) were registered against him with Bapunagar Police Station and another set punishable under Sections 307, 326, 325, 324, 323, 294(B) and 114 of the IPC and Section 135(1) of GPA. In both these offences, the petitioner was granted regular bail. On the first incident, petitioner and others went to victim house, to which all victims refused to allow to sit in their residential house which angered petitioner and other has given a knife, sword blow on different parts of the body.
Moreover, it was revealed that they were consuming liquor habitually and witnesses have stated of their criminal activities. On another incident, petitioner and others armed with sword, knife and pipe give a heavy blow on the victims causing serious injury to the victims.
The counsel submitted before this Court that there are only two offences registered against the petitioner to which he was granted regular bail and such orders were not challenged by the state. Further, there seems whim and caprices i.e. subjective satisfaction undertook by detaining authority regarding the decision for petitioner.
Moreover, confidentiality was misunderstood by the respondent in the sense that petitioner remained ignored with respect to the statement of a witness. Therefore, such non-application of mind must deserve to be set aside and the right of the petitioner must be maintained irrespective of invocation of the provision of PASA.
The counsel submitted before this court that the petitioner termed as “dangerous person” as the effect of his activity has caused serious impact resulting in public disorder. Moreover, the court may not interfere with the concerned case but it’s the inherent duty of the court to work on the larger good of the society in every case with distinct facts for achieving fair and just procedure for securing justice to all.
The Court after hearing both parties took the reference of Shambhunath Rajbahadur Ramapati Gautam vs. State of Gujarat [Special Civil Application No. 9514 of 2020] on 10.12.2020: which defined clear interpretation of the term Dangerous Person under section 2(C) of PASA Act. It means a person who himself or being a member or leader of a gang for the period of successive three years habitually commits or likely to commit or abet the commission of any offence punishable under IPC.
Further, sub-section 1 of section 3 provides that the State Government on its satisfaction if necessary could detain such person for the purpose of preventing such person from acting in any manner prejudicial to the maintenance of public order by making preparation for engaging in an illegal activity affecting maintenance of public order. Affect in the sense of causing harm, insecurity or danger to the general public to their life, property and public health.
Further, the court referred Amanulla Khan Kudeatalla Khan VS. State of Gujarat, AIR 1999 SC 2197, the apex court observed that detaining authority on being satisfied that detenu belongs to notorious gang dealing with illegal activity of threatening people to death in case of failure to extort money from the people deemed person as ‘dangerous person’ under Section 2(C) of this Act hampering the maintenance of public order.
Therefore, the court held that the necessary step undertaken by the respondent authority was just, fair and reasonable and hence the Court refused to interfere with a detention order. Moreover, in the case of Mustakmiya Jabbarmiya Shaikh v. M. M. Mehta, Commissioner of Police and Others, 1995 (2) GLR 1268, it was observed that the term habit and habitual has not been defined in this act.
According to The Law Lexicon by P. Ramanatha Aiyar, Reprint Edn. (1987), p. 499, ‘habitually’ means constant, customary and addicted to specified habit and the term habitual criminal may be applied to anyone who has been previously convicted of a crime to the sentences and committed to prison more than twice. The word ‘habitually’ means ‘usually’ and ‘generally‘.
In another case Subramanian v. State of Tamil Nadu, (2012) 4 SCC 699, the court observed at what time public order could be disturbed. It can be determined through the tempo of the community, nature of weapons, damage caused to private and public property, threatening and causing insecurity to the general public, all these factors are essential and sufficient for disturbing public order and tranquillity of the locality.
It was well settled that the court does not interfere with the subjective satisfaction of detaining authority except in exceptional circumstances with extremely limited grounds. Therefore, the satisfaction of detaining authority must be given primary importance with certain latitude in exercising discretionary power on a subjective basis.
In this case, Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852, the court held the distinction between law and order and public order, which establish any injury or assault affecting specific person cannot be considered a public disorder
In the case of Arun Ghosh v. State of West Bengal (1970) 1 SCC 98, the Apex Court observed that ‘Public order was said to embrace more of the community than law and order. Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality’.
Thus, it can well be concluded from various case laws that kind of infraction or order governing public order regarding prejudicial to maintenance of public order would determine the extent of interference into matters by the court of law.
The Court concluded that the petitioner and others has caused a nuisance to the general public at large as supported by a statement of witness as merely because someone has asked not to sit at the residential place or speak loudly does not justify the act of petitioners by giving grave blows by deadly weapons to everyone presented there even women.
Hence, the Court was of the opinion that petitioners had caused aggravated prejudice affecting the maintenance of public order resulting in the grave and serious injury with no fault of victims. The non-interference of court upon subjective satisfaction of detaining authority by invoking the provision of PASA Act stands valid and justified.
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