The Gujarat High Court on Friday (28th August) set aside an order of detention passed under the 'Gujarat Prevention of Anti-Social Activities Act, 1985' (PDF File of the Act), holding that just because the petitioner was not wearing the mask and when stopped by the police personnel, got furious and entered into an altercation with the police personnel, cannot bring the case of the detenue (the petitioner herein) within the purview of the definition under section 2(c) of the Act of 1985.
It may be noted that Section 2(c) of the Act defines a "dangerous person" to mean a person who either by himself or as a member of the leader of the gang habitually commits or attempt to commit or abets the commission of any of the offences punishable under Chapter XVI or XVII of the Indian Penal Code or any other offences punishable under Chapter V of the Arms Act, 1959.
The Bench of Justice Sangeeta K. Vishen observed,
"it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with the law, inasmuch as the offences alleged in the First Information Report cannot have any bearing on the public order as required under the and other relevant penal laws are sufficient enough to take care of the situation. The allegations levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(c) of the Act of 1985." (emphasis supplied)
The present petition before the Court was directed against the order of detention dated 11.5.2020 passed by the respondent No.1 - detaining authority in the exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as the "Act of 1985") by detaining the petitioner – detenue (one Somabhai Motibhai Vaniya) as defined under section 2 (c) of the Act of 1985.
[NOTE: Section 3 of the 'Gujarat Prevention of Anti-Social Activities Act, 1985' deals with the 'Power to make orders detaining certain persons']
The Court opined that filing of an FIR alone may not be enough to bring the case under the purview of the Act, and observed,
"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 2(c) of the Act,"
Except general statements, the court didn't find any material on record which could show that the detenue was acting in such a manner, which was dangerous to the public order.
The Bench also observed that there should be repeated or continuous act amounting to the offence referred to in the definition (Section 2(c) of the Act).
The Court was of the view that in the present case, a solitary offence is registered against the petitioner and the detaining authority has failed to consider the said aspect.
In view of above, the Court allowed the petition inasmuch as, simpliciter registration of First Information Report by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act. No other relevant and cogent material exists for invoking power under Section 3(2) of the Act.
In the result, the present petition was allowed and the impugned order of detention No.MJC-3/PAKE/17/2020 dated 11.5.2020 passed by the respondent No.1 - detaining authority was thereby quashed and set aside. The detenue was ordered to be set at liberty forthwith if not required in any other case.
It may be noted that the bench of Justice Bhargav D. Karia passed a similar order on Monday (31st August) whereby the order of detention No.MJC3/PAKE/19/2020 dated 11.5.2020 passed by the respondent No.1 - detaining authority was quashed and set aside. The detenue (one Jaydeepbhai Somabhai Vaniya) was ordered to be set at liberty forthwith if not required in any other case.
Notably, the Gujarat government has made a significant decision to amend the PASA Act by expanding its scope to cyber-crime and safeguarding women in the state. On Wednesday (02nd September), the Gujarat Cabinet gave its nod for the issuance of an ordinance to amend the PASA Act.
Significantly, the Gujarat High court on Monday (31st August) welcomed the State Government's decision to extend the application of the Prevention of Anti-Social Activities (PASA) Act, 1985 to cybercriminals, loan sharks and sexual offenders amongst the others.
However, the court cautioned the Government that the exercise will remain futile, if serious amendments are not made in the implementation of the preventive powers provided under the Act.
Case Details (28/08/2020 Order):
Case Title: Somabhai Motibhai Vaniya v. District Magistrate
Case No.: Special Civil Application No. 7291 of 2020
Quorum: Justice Sangeeta k. Vishen
Appearance: Advocate V. B. Malik (for the Petitioner); Assistant Government Pleader Bharat Vyas (for the respondent no. 2)
Click Here To Download Order