In a significant ruling, the Gujarat High Court has nullified the preventive detention order in a case impacting public order. This decision marks a crucial development in ensuring the protection of individual rights and upholding legal standards. Stay tuned for insights into the case involving public order concerns in Gujarat.
Facts
- The petitioner was released from jail on 09.11.2023.
- The order of detention under the PASA Act was passed on 10.11.2023.
- The petitioner has filed a petition to quash the order of detention and be set at liberty.
Arguments
- Petitioner has been detained due to registration of two FIRs against him for theft
- Petitioner has been released on bail for both offences
- Petitioner’s activities may disrupt law and order but not breach public order
- Authority could have chosen to cancel bail instead of passing detention order
- The detaining authority’s subjective satisfaction would be invalidated.
- The alleged illegal activity of the petitioner-detenue is claimed to lead to disturbance of public order.
- The detaining authority’s order of detention is deemed appropriate.
- The detaining authority failed to establish that the detenue’s actions affect public order.
- The registration of two theft cases against the detenue does not directly impact public order.
Analysis
- Subjective satisfaction would stand vitiating as per recent Supreme Court decision in Shaik Nazeen v. State of Telangana and Ors.
- The State should seek cancellation of bail or move an appeal to the Higher Court if the detenu is a menace, instead of preventive detention.
- Registration of FIRs alone does not relate to breach of ‘public order’ for invoking power under section 3(2) of the Act.
- Cases of disturbance of public order should be handled under ordinary criminal law, not preventive detention laws.
- Contravention of any law affects order but to affect public order, it must affect the community or the public at large.
- A line of demarcation must be drawn between serious disorders affecting the community and minor breaches of peace primarily harming individuals.
- The decision in Pushker Mukherjee v. State of West Bengal distinguishes between ‘law and order’ and ‘public order’.
- Acts like two individuals quarreling and fighting do not constitute public disorder.
- The detenue was released from jail on 09.11.2023
- The impugned order of detention was passed on 10.11.2023 immediately after the detenue’s release
- Mere disturbance of law and order is not sufficient for action under the Preventive Detention Act; it must affect public order
- Subjective satisfaction by the detaining authority does not appear to have been achieved before the order of detention
- Cancellation of bail could have been considered but was not, leading to the immediate passing of the detention order
Decision
- The petition has been allowed and the impugned order of detention has been quashed and set aside.
- The detenue is ordered to be set at liberty forthwith, unless required in connection with any other case.
- The order of detention dated 10.11.2023 has been declared null and void.
Case Title: SAMIR @ SAMIR VARI S/O SADIK SHAIKH Vs. COMMISSIONER OF POLICE CITY OF SURAT
Case Number: R/SCA/20808/2023
