The Ahmedabad Bench of the Gujarat High Court has held that a person cannot be validly preventively detained as a “cruel person” under Section 2(bbb) of the Gujarat Prevention of Anti-social Activities Act, 1985 unless the material on record supports the statutory definition, including habituality within the scope of the provision.
The Court emphasised that preventive detention cannot be sustained where the alleged acts disclose only a matter of law and order and there is no sufficient material to show that the activities affected or were likely to affect adversely the maintenance of public order. The High Court therefore quashed the detention order, and directed that the detenue be set at liberty forthwith if not required in any other case.
The Division Bench comprising Justice Ilesh J. Vora and Justice R. T. Vachhani reproduced the definition of “cruel person” in Section 2(bbb), namely a person who, either by himself or as a member or leader of a gang, habitually commits or attempts to commit or abets the commission of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954.
The Bench held that there was no material before the detaining authority to establish that the applicant had been convicted of an offence punishable under Section 8 of the Bombay Animal Preservation Act, 1954 within a period of three years from the date of such conviction and had thereafter habitually committed, attempted to commit, or abetted such offences; therefore, the alleged activities did not fall within the definition of “cruel person.”
The Bench further held that, on the basis of the single criminal case relied upon, the authority had wrongly arrived at subjective satisfaction that the detenue was acting in a manner prejudicial to the maintenance of public order. It observed that the offence in question did not have any bearing on the maintenance of public order, and at best related to law and order.
The Bench also reiterated that every infraction of law or disturbance of order does not amount to disturbance of “public order”; to attract preventive detention, the act must affect the community or the public at large, and not merely constitute a local or individual breach dealt with under ordinary criminal law. Further, the Bench found that the material on record was insufficient to show that the detenue’s alleged activities had affected or were likely to affect adversely the maintenance of public order, and therefore the subjective satisfaction of the detaining authority was not legal or valid.
Briefly, the petitioner challenged a preventive detention order passed by the District Magistrate, detaining him as a “cruel person” under Section 2(bbb) of the Gujarat Prevention of Anti-social Activities Act, 1985 (PASA). The detention order was based on one criminal case registered at Dwarka Police Station, for offences under Sections 8(2), 8(4) and 10 of the Gujarat Animal Preservation Act and Section 325 of the B.N.S.
The State argued that the detenue was a habitual offender and that his activities affected society at large, and therefore the Detaining Authority had passed the order to prevent him from acting in a manner prejudicial to the maintenance of public order in Devbhumi Dwarka.
Appearances:
Kuldeep D Vaidya, for the Applicant
L B Dabhi, APP, for the Respondent
