YASINBHAI ABBASBHAI NEDERIA v. STATE OF GUJARAT

================================================================ Appearance: MR YV VAGHELA, ADVOCATE for the Petitioner(s) No. 1 MR.BIPIN BHATT, AGP for the Respondent(s) No. 3 RULE SERVED BY DS for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 21/12/2012 C/SCA/16187/2012 JUDGEMENT ORAL JUDGEMENT

By way of this petition, the detenu has challenged the order of detention dated

10.10.2012 passed by respondent No. 2, District Magistrate, Banaskantha under the provisions of sub-sec(2) of Section 3 of the Gujarat Prevention of Anti-Social Activities Act, 1985 (hereinafter referred to as “PASA Act”).

Learned advocate, Mr.Y.V.Vaghela, appearing for the petitioner-detenu has invited my attention to the order of detention dated

10.10.2012 by which the detenu was arrested and sent to Rajkot Jail. The grounds of detaining the accused are that one offence was registered against the petitioner under the provisions of Section 429 and 114 of the IPC and Section 5, 6, 8 and 10 of Prevention of Cruelty to Animal Act, 1954 and Section 11 of the Bombay Cattle Prohibition Act, 1960. He is, therefore, a “cruel person” as defined under Section 2(bbb) of the PASA Act. Learned advocate appearing for the petitioner has submitted that, except this solitary offence, there is no material with the detaining authority to detain the petitioner under the provisions of PASA Act. It is submitted that the order is vitiated because only on the basis of one C/SCA/16187/2012 JUDGEMENT offence registered against the petitioner, and in absence of any other material to show involvement of the petitioner in similar activities, the detaining authority has recorded a subjective satisfaction that the petitioner is a cruel person. The definition of cruel person requires habitual involvement and, therefore, the subjective satisfaction and the consequential order are vitiated.

Learned AGP Mr.Bipin Bhatt appearing for the State has opposed this petition.

Having regard to the contentions raised on behalf of the petitioner, it would be necessary to refer to the definition of “cruel person” as given in Section 2(bbb) of the Gujarat Prevention of Antisocial Activities Act, 1985, which runs as under:- “2(bbb) “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 (Bom.LXXII of 1954)”.

It is clear from reading of the definition that the person to be branded as a cruel person has to be either a member or leader of a gang habitually committing or attempting to commit or C/SCA/16187/2012 JUDGEMENT abetting the commission of offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954. The term “habitually” examined from any angle, literal or legal, would require presence of an element of repetitiveness. In the instant case, barring one offence registered against the petitioner, there was no material before the detaining authority to record a satisfaction that the petitioner is habitual or repetitively involved in the offence.

Under the circumstances, the subjective satisfaction that the petitioner is a cruel person on the basis of which he has been detained is vitiated.

The petition deserves to be allowed and the same is allowed. The impugned order of detention passed by respondent No. 2, District Magistrate, Banaskantha dated 10.10.2012 detaining detenu is hereby quashed and set aside. The detenu be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted. Ashish Tripathi

(A.J.DESAI, J.)