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[PASA Amendment] 'A Welcoming Step But Effective Implementation And Execution Is A Must', Gujarat HC Gives SuggestionsTo Prevent The Misuse Of The Act [Read Judgment]

Sparsh Upadhyay
7 Sep 2020 5:05 AM GMT
[PASA Amendment] A Welcoming Step But Effective Implementation And Execution Is A Must, Gujarat HC Gives SuggestionsTo Prevent The Misuse Of The Act [Read Judgment]
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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.

A Bench comprising Chief Justice Vikram Nath and Justice J.B.Pardiwala remarked,

"We are constrained to observe that ordinarily, suggestions made by the High Court are not paid heed as they are not in the form of directions. However, we would like to remind the State Government that the High Court would very rarely make suggestions and if in a particular case, any suggestions are made, they are always in larger public interest" (emphasis supplied)

Background of the present case

The Court was hearing an appeal under Clause 15 of the Letters Patent which was filed at the instance of the original writ applicant (the detenue) and was directed against the Judgment and order passed by a learned Single Judge of the High Court dated 4th August 2020 in the Special Civil Application No.8091 of 2020.

The Single Judge had rejected the writ application affirming the order of preventive detention dated 7th April 2020 passed against the appellant herein under Section 3 (2) of the Gujarat Prevention of Anti-social Activities Act, 1985 [for short, "the Act, 1985"] branding the appellant as a "dangerous person", as defined under Section 2(c) of the Act, 1985.

[NOTE: Section 2(c) of the Act defines a "dangerous person" to mean a person who commits/ attempts to commit/ abets in the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.]

Being dissatisfied with the judgement and order passed by the learned Single Judge referred to above, the appellant (detenue) was hereby before this Court with the present appeal.

Court's Observation

The Court was of the view that merely because a person is 'dangerous person' he cannot be preventively detained under the PASA Act, unless as laid down in sub-section (4) of Section 3 of the PASA Act, his/her activities as a 'dangerous person' affected adversely or are likely to affect adversely the maintenance of public order.

Notably, by placing reliance on the two F.I.Rs filed and the statements of the witnesses, the Detaining Authority had reached to the subjective satisfaction that the act of the detenu "created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of the public order, which affected the even the tempo of life of the community."

To this the court said,

"In our view, the two F.I.Rs. and the statements narrated by the witnesses are not relevant for sustaining the order of detention for the purpose of preventing the petitioner from acting in a manner prejudicial to the maintenance of the public order."

Further, the Court held,

"Prima facie, it appears on a plain reading of the impugned judgement and order passed by the learned Single Judge is that what weighed with the learned Single Judge in rejecting the writ application is the fact that the appellant used a lethal weapon like a knife for the purpose of administering threats to the complainant and the gathering of the public at the place where such threats were administered."

In such circumstances referred to above, the court was of the view that the order of detention passed by the detaining authority was not sustainable in law.

In the result, this appeal succeeded and was thereby allowed. The impugned judgement and order passed by the learned Single Judge was thereby set aside. The detenu was ordered to be released forthwith.

Suggestions to the Gujarat Government

It may be noted that 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.

The Court acknowledged the fact that the State Government was taking one step ahead as it had decided to extend the application of the Act, 1985 to cyber criminals, loan sharks and sexual offenders amongst the others.

In this context, the court said,

"We are informed that an ordinance in this regard to amend the PASA Act, 1985 is likely to be proposed in the cabinet meeting, which may be conveyed in the near future. While it is a welcome step on the part of the State Government, but unless and until the defects pointed out in the aforesaid observations are not duly considered and deliberated, no amount of amendments will serve the purpose."

The Court reminded the State Government of the observations made by one of the judges in the present matter (J.B. Pardiwala, J.) in the Special Civil Application No.536 of 2015 decided on 27th January 2015.

In the said Judgment of 2015, the court had noted,

"While exercising the power of confirmation/approval of the order of detention, in accordance with sub-section (3) of Section 3 of the said Act, the State Government owes a duty to apply its mind to the order of detention. The stage of approval should not be treated as an empty formality. The Government owes a duty to see whether the order of detention passed by the Detaining Authority is in accordance with the law, more particularly in conformity with the judicial pronouncements of the Supreme Court and the High Court of Gujarat." (emphasis supplied)

Further, the court had opined,

"The confirmation or the approval to the orders of detention in accordance with sub-section (3) of Section 3 of the PASA Act is an additional safeguard introduced by the statute, and therefore, the power of grant of approval cannot be mechanically exercised in a casual manner. The Government must examine whether the order is lawful and when called upon by the Court of law to show its application of mind, there should be something on record for the same." (emphasis supplied)

Lastly, the Court in its 2015 verdict had remarked,

"I am conscious of my powers under Article 226 of the Constitution of India. It is not permissible for me to legislate. I cannot issue a writ of mandamus to amend the Act and introduce a proviso as referred to above. That is absolutely for the State Government to consider if it deems fit. However, I may only say that the State Government should frame appropriate guidelines for approval of the orders of detention by the State Government under sub-section (3) of Section 3. If appropriate guidelines are framed in accordance with the law, probably that would be more helpful in ensuring that the order of detention is in accordance with the law." (emphasis supplied)

In such circumstances, in the present matter, the court once again requested the State Government to seriously study the observations and deliberate upon the same for effective implementation and execution of the provisions of the Act and at the same time also for the purpose of preventing the misuse of the provisions of the Act, 1985.

Case Details:

CaseTitle: Vijay alias Ballu Bharatbhai Ramanbhai Patni (kaptiywala) v. State of Gujarat

Case No.: r/Letters Patent Appeal no. 454 of 2020 in r/Special Civil Application no. 8091 of 2020

Quorum: Chief Justice Vikram Nath and Justice J.B.Pardiwala

Click Here to Download Judgment

[Read Judgment]



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