CHIMANBHAI SHANKERBHAI PARMAR v. COMMISSIONER OF POLICE, VADODARA CITY

CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 27/04/2005 ORAL JUDGEMENT

1.(cid:9)This Special Civil Application under Article 226 of the Constitution of India has been filed by the petitioner challenging his detention in pursuance of the order passed against him by Police Commissioner, Baroda City, on 24th of February, 2005, in exercise of powers conferred upon him under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (PASA Act for short). The petitioner is under detention as dangerous person from 24th of February, 2005 in pursuance of the above order.

2.(cid:9)The grounds of detention as placed on record reveal that the detaining authority took into consideration two types of materials to arrive at the subjective satisfaction. Firstly, the detaining authority took into consideration five cases registered against the petitioner for the offences punishable under Sec. 379 of the Indian Penal Code for theft, and secondly the detaining authority took into consideration two in-camera statements of witnesses, as recorded by the sponsoring authority on 01st of February, 2005 and verified by the detaining authority on 23rd of February,

2005. The identity of the witnesses is not disclosed by the detaining authority, claiming privilege under Section 9(2) of the PASA Act.

3.(cid:9)Out of five crimes registered against the petitioner, first three were registered before Fatehganj Police Station, Baroda, on 5th of January, 2005, 13th of January, 2005 and again on 13th of January, 2005. In first case, the petitioner was involved in theft of one TVS Scooty vehicle, in second case the petitioner was involved in theft of one bag and cheque book and in third case the petitioner was involved in theft of RC book licence, measure tape, calculator, etc. The fourth crime was registered against the petitioner before J.P. Road Police Station on 13th of January, 2005, wherein the petitioner was involved in theft of one cheque book and other papers and one sample bag. The fifth crime was registered against the petitioner before Sayajiganj Police Station on 15th of January, 2005, wherein the petitioner was involved in theft of one purse, railway ticket and cash amount of Rs.350/-. The detaining authority considered exhaustively and thoroughly the investigation papers in all the five cases registered against the petitioner and came to the conclusion that the petitioner was a habitual offender of committing the offences of theft.

4.(cid:9)Out of two in-camera statements, the first witnesses referred to an incident occurred of 2nd of January, 2005. At about 11.00 a.m. the witness was passing through Chanakyapurai Society on his scooter and he was stopped by petitioner and his accomplice. The petitioner stated to the witness that the witness was keeping watch on the activities of the petitioner and was providing information to the police. The witness was thrown of the scooter and petitioner administered three slaps to the witness. The witness stated that he never provided any information to the police. Thereupon, the petitioner was more excited and he and his accomplice started beating the witness. Therefore, the witness raised shouts for help which attracted a crowd. On noticing the crowd being gathered, petitioner and his accomplices rushed towards the crowd with open knife, so people started running helter - skelter. The traffic in the area was disturbed. Routine life was also disrupted, and fear was spread. The public order was disturbed. The second witness referred to an incident of 8th of January, 2005. At about 6.00 p.m. the witness parked his scooter in parking area of Arpan Complex near Fatehganj Main Road Delux Cross Roads. After parking is scooter, the witness went in the complex for his work. While he was returning from the complex he noticed that the petitioner was tampering with the scooter by inserting a key in the dicky of the scooter. So, the petitioner was accosted by the witness and stated that why the petitioner was opening the dicky of his scooter. Thereupon, the petitioner and his accomplice were got excited and started beating the witness. The witness raised shouts for the help which attracted the crowd. On noticing a crowd being gathered, the petitioner and his accomplice took out a knife and rushed towards the crowd with open knife. So people started running helter skelter and traffic was disturbed. The routine life in the area was disrupted and public order was disturbed.

5.(cid:9)Relying upon the above material, the detaining authority concluded that the petitioner was engaged in anti-social and illegal activities of committing thefts and harassing innocent citizens. In view of the detaining authority, the petitioner was a dangerous person within the meaning of the PASA Act. The detaining authority also concluded that the dangerous activities of the petitioner were prejudicial to the maintenance of public order and were required to be prevented forthwith. After considering the other remedies available against the petitioner in general law, the detaining authority reached to the subjective satisfaction that there was no other alternative except to detain the petitioner under the PASA Act. The detaining authority therefore passed the order of detention, as aforesaid, which is under challenge in this petition.

6.(cid:9)Learned Advocate Ms. Bharti Rana for learned Advocate Mr. A.S. Dave for the petitioner and learned AGP Ms.Hansa B Punani for the respondents were heard at length. The affidavit-in-reply as field by the detaining authority as placed on record is also taken into consideration.

7.(cid:9)Out of various grounds urged on behalf of the petitioner and opposed and controverted by learned AGP, it appears that this petition can be examined and disposed of only on the issue that whether there was credible and cogent material placed before the detaining authority to come to the conclusion that by the activities of the petitioner, the public order was disturbed.

8.(cid:9)To reach to the subjective satisfaction that the dangerous activities of the petitioner were prejudicial to the maintenance of public order, the detaining authority must rely upon credible and cogent material indicating that the activities of the detenu directly or indirectly were causing or were likely to cause harm, danger or alarm or feeling of insecurity among the general public or any section thereof or a grave or widespread danger to life, property or the public health. While undertaking this exercise, the detaining authority has to draw a clear line between the cases falling within the category of breach of law and order and the cases falling within the category of breach of public order.

9.(cid:9)Referring to the five criminal cases filed against the petitioner under the Indian Penal Code for committing theft and going through the investigation papers as placed on record, it is found that those five cases came to be filed against the detenu because he was found during investigation to have committed offences of theft. The act which is alleged in the criminal cases is offence under the Penal Statute of the country. However, merely filing cases under the Penal statute of the country, would not result in a conclusion that the activities of the petitioner were disturbing the public order. At the most, the petitioner might have committed breach of the provisions of law, for which the petitioner may be tried and punished if found guilty, but surely the act constituting the offence cannot be said to have affected the even tempo of the life of the community nor the activities revealed through the investigating papers indicate that in the activities alleged through these cases, society at large or section of the society or community or particular community was involved. Therefore, these cases may be instances of breach of law and order, but cannot be branded as activities disturbing the public order.

10.(cid:9)Further while referring to the in-camera statements, as recorded by the sponsoring authority and verified by the detaining authority, it must be borne in mind that while reaching to the subjective satisfaction about the alleged activities of the petitioner, it would be necessary for the detaining authority to consider fall out, reach and impact of the activities of the petitioner and thereafter to come to the conclusion that such activities were capable of disturbing the public order. Two incidents, as narrated through in-camera statements, reveal individual disputes than to involve society at large or even disturbing the even tempo of the life of the community. The potentiality of the act alleged through in-camera statements, even from the bare reading of them, are not capable of disturbing the even tempo of life of the community or society at large or section of the society. No widespread danger or harm to the society could be inferred from the statements of the witnesses. Therefore, even after taking them on their face value, those incidents, may be instances of disturbing law and order, which can be taken care of by general law and by no stretch of reasoning, such activities can be branded to be disturbing the public order.

11.(cid:9)In the matter of ASHOKBHAI JIVRAJ @ JIVABHAI SOLANKI vs. POLICE COMMISSIONER, SURAT and Ors. as reported in 2000 (1) GLH 393. The Division Bench of this Court after considering many decisions of the Apex Court, observed in paras 20 and 21 as under : "20(cid:9)The Division Bench then considered the law laid down by the Apex Court in Piyush Kantilal v. Commissioner of Police, Ahmedabad City, AIR 1989 SC 491 and Two. Devaki vs. State of Tamil Nadu, AIR 1990 SC 1086. In Piyush Kantilal, similar circumstances were before the detaining authority and it was alleged that detention of the detenu was necessary in order to prevent activities of the detenu in maintenance of public order. Similarly in Two. Devaki, panic amongst people in the hall in which the incident took place and in nearby vicinity was highlighted. It was also alleged that people were scared and had run helter-skelter. In spite of such allegations, the Supreme Court held that they were not cases of maintenance of public order and hence, no action of preventive detention was uncalled for.

21.(cid:9)The Division Bench, following the above cases, observed that in the opinion of the Supreme Court, the selective phrases in the statements would not take out the case from maintenance of law and order to that of maintenance of public order and as power of detention, could not be used for maintenance of law and order, but only for public order, the order of detention made in such circumstances could not be upheld. (cid:9)Again in Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police and Others, 1995 (2) GLR 1268 (Sc), the Supreme Court considered the relevant decisions on point including the decisions in Arun Ghosh v. State of West Bengal, 1979 (1) SCC 98 and held that stray incidents would not affect "public order" and order of detention cannot be passed in such cases. "

12.(cid:9)The present set of facts are squarely covered by the above decision of this Court in the case of Ashokbhai Jivraj @ Jivabhai Solanki (supra) and therefore the subjective satisfaction arrived at by the detaining authority in respect of disturbance of public order by the alleged activities of the petitioner cannot be said to be legal, valid and in accordance with law. The order under challenge, therefore, is required to be quashed and set aside on this ground alone.