Sca No. 11430 of 2012 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 05/09/2012 ORAL JUDGMENT

This petition is directed against the order of detention dated 15/05/2012 passed by the authority functioning under respondent No.2 i.e. Police Commissioner – respondent no.1 herein, in exercise of SCA/11430/2012 JUDGMENT powers conferred under Section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (in short 'the Act') by detaining the detenue as a “Cruel person” as defined under Section 2(bbb) of the Act.

Learned advocate for the detenue submits that the registered case under the Prevention of Cruelty to Animals Act, 1960 would not indicate anything to support disturbance to public order nor have the activities of the detenue affected adversely the maintenance of public order and, therefore, the order of detention passed by the detaining authority cannot be sustained in law and is required to be quashed and set aside.

Learned AGP has opposed the petition and supported the order of detention in letter and spirit.

Having heard the learned counsel for the parties, on perusal of record, considering the definition of 'cruel person', “means a person who either by himself or as member or leader of a gang habitually commits or attempts to commit, abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954” contained in Section 2(bbb) of the PASA Act and the law laid down by the Apex Court in the case of Gopalanachari Vs. State of Kerala, reported in AIR 1981 SC 674, where the Apex Court considered and reiterated the law on personal liberty vis-a-vis rule of law and procedure contemplated in Article 21 of the Constitution of India which means fair and not formal procedure and Article 22 which specifically spells out the procedural safeguards for preventive punitive detentions and a law providing for such detention should conform to Article 22 of the Constitution of India, while referring to the decisions of the Apex Court in the case of Maneka Gandhi reported in [1978] 1 SCC 248 and in the case of Hoskot reported in (1978) 3 SCC 544, and as held by the SCA/11430/2012 JUDGMENT learned Single Judge of this Court vide Oral Judgment dated 21.2.2005, in Special Civil Application No. 15105 of 2004 [Iliyas Mohammad Hi Vs. Commissioner of Police], and keeping in mind the object of detention law being prevention and not punishment, this Court is of the opinion that the activities of the detenue cannot be said to be adversely affecting the maintenance of public order and at the most fall under the maintenance of 'law and order'. Hence, the subjective satisfaction arrived at by the detaining authority is vitiated.

The petitioner is dubbed to be “cruel person” on account of registration of one offence, wherein it is alleged that 2,500/- kilo mutton of Bovine was recovered. The Court is of the considered view that looking to the attendant circumstances and narration in the order of detention at the most, this appears to be a question pertaining to law and order but not certainly the question pertaining to public order. But, the narration indicate the attributes or character, which are sought to be imputed to the applicant/prisoner so as to characterize him as cruel person.