Sca No. 30386 of 2007 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 12/05/2008 ORAL JUDGMENT

The petitioner-detenu has preferred this petition under Article 226 of the Constitution of India for appropriate writ, order or direction for quashing and setting aside the order dated 19.11.2007 passed by the SCA/30386/2007 JUDGMENT District Magistrate, Anand under the provisions of Gujarat Prevention of Anti Social Activities Act, 1985 (for short, 'PASA Act') whereby the petitioner has been detained as a dangerous person. Heard the learned advocate for the petitioner and the learned AGP for the respondents.

From the grounds of detention, it appears that two offences being CR.II-Nos.3349 and 119 2007 under section 379 of the Indian Penal Code were registered against the detenu for indulging in selling/supplying of deadly weapons with Anand Town and Chaklasi police stations. The detaining authority has placed reliance on the aforesaid registered offences and statements of unnamed witnesses. After recording the subjective satisfaction about the petitioner being a dangerous person and with a view to preventing him from acting in a manner prejudicial to the maintenance of public order, the impugned order was passed by the detaining authority.

Except two statements of the anonymous witness, there is no other material on record which shows that the petitioner is acting in such a manner which is dangerous to the public order. There are number of decisions of this court as well as the Hon'ble Apex Court on the point of relying on the statements of unnamed witnesses in detention cases. In the case of Ashokbhai Jivraj @ Jivabhai Solanki v.Police Commissioner, Surat (2001 (1) GLH 393), having considered the decision of the Hon'ble Apex Court in the case of Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740), this court held that SCA/30386/2007 JUDGMENT the cases wherein the detention order passed on the basis of the statements of the witnesses falls under the maintenance of “law and order” and not “public order”.

Applying the ratio of the above decisions, it is clear that three incidents of thefts of motor cycles and registration of offences under sections 379 and 114 of IPC were stray and unorganised crimes. It is also clear that before passing an order of detention of a detenu, the detaining authority must come to a definite finding that there is threat to the 'public order' and it is very clear that the present case would not fall within the category of threat to a public order. In that view of the matter, when the order of detention has been passed by the detaining authority without having adequate grounds for passing the said order, cannot be sustained and, therefore, it deserves to be quashed and set aside.

In the result, this Special Civil Application is allowed. The impugned order of detention dated

19.11.2007 passed by the District Magistrate, Anand is hereby quashed and set aside. The detenu is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.

[M.D. SHAH, J.]