In a significant legal victory, the Gujarat High Court has issued a judgment on the detention order under the Gujarat Prevention of Anti-social Activities Act. The case involved Mohammed Aabid Bardoliwala challenging the legality of the order passed by the Police Commissioner of Surat. The court’s decision brings clarity on the distinction between ‘law and order’ and ‘public order’ in preventive detention cases. Stay tuned for more details on this landmark ruling.
Facts
- The petitioner, Mohammed Aabid Bardoliwala, challenged the legality of the detention order dated 21.12.2023
- The detention order prevented Mohammed Aabid Bardoliwala from being free as he was classified as a ‘dangerous person’ under the Gujarat Prevention of Anti-social Activities Act, 1985
- The order was passed by the Police Commissioner of Surat
- The petitioner sought to prove the order as invalid and unlawful
Issue
- The issue at hand is the legality of the detention order passed by the Detaining Authority under the Act of 1985.
- The key question is whether this detention order complies with the provisions of the law.
- The order in question has already been executed on the applicant.
- The focus is on determining whether the Detaining Authority had the legal basis to issue the detention order.
Arguments
- The Detaining Authority passed the order to prevent the detenue from acting in a manner prejudicial to public order in Surat.
- The registration of the offence did not affect public order as per the law.
- The detenue’s activities were seen as prejudicial to law and order, not public order.
- The State Counsel argued that the detenue’s habitual offending affected society at large.
- The Court heard arguments from both the detenue’s advocate and the State’s counsel.
Analysis
- Activity of being a bootlegger alone is not sufficient for preventive detention under the Act unless it affects public order.
- The detaining authority wrongly concluded activities as ‘prejudicial to the maintenance of public order’ based on two criminal cases.
- The offences committed by the petitioner did not disturb the even tempo of community life, as observed from the granted bails.
- A distinction is made between minor breaches of peace and serious disorder affecting public interest under the Preventive Detention Act.
- In this case, the authority failed to prove that the petitioner’s activities impact public order negatively.
- The mentioned criminal cases do not relate to the maintenance of public order according to the court’s analysis.
- Distinction between ‘law and order’ and ‘public order’ defined in Pushkar Mukherjee v. State of West Bengal.
- Reference to the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad, 1989 Supp (1) SCC 322 where detention order was based on prohibition offences.
- Court held that mere disturbance of law and order is not sufficient for action under preventive detention Act.
- Not every act of assault or injury leads to public disorder, as explained by Ramaswami, J. in the case.
- Assaults between individuals do not constitute public disorder and are dealt with under ordinary criminal law.
- Culprits cannot be detained solely on the grounds of such individual quarrels or fights.
- Material on record not sufficient to show alleged activities of detenue affecting public order
- Subjective satisfaction of detaining authority deemed illegal and invalid
- Offences alleged not creating insecurity, panic or terror among public
- Order of detention not upheld as it does not pertain to maintenance of public order
Decision
- The rule has been made absolute
- Direct service is permitted for the order dated 21.12.2023 passed by the respondent authority
- The order impugned is quashed
- The detenue is to be set at liberty forthwith unless required in another case
- The petition is allowed
Case Title: MOHAMMED AABID S/O MOHAMMED UMER BARDOLIWALA THROUGH MOHAMMED AAKIL S/O MOHAMMED UMAR BARDOLIWALA Vs. STATE OF GUJARAT
Case Number: R/SCA/412/2024
