In a significant legal development, the Gujarat High Court has made a decisive ruling regarding the detention order under the Gujarat Prevention of Anti Social Activities Act. The judgment brings to light the crucial distinction between law and order and public order as it pertains to the detaining authority’s actions. Stay tuned to learn more about this landmark decision by the Gujarat High Court.
Facts
- The respondent detaining authority passed an order of detention against the petitioner on 27.10.2023.
- The detention was made under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985.
- The petitioner is considered as a detenue under section 2(c) of the Act.
Issue
- Original names used instead of Respondent No 1 or Petitioner No 1.
- Issue discussed in detail with relevant arguments presented by both parties.
- Court’s analysis of the legal principles involved in the issue.
- Previous case laws or precedents considered in reaching the decision.
- The conclusion drawn by the court for this specific part of the judgment.
Arguments
- No relevant material on record connecting detenue’s alleged anti-social activity with breach of public order, apart from witness statements, FIRs, and Panchnama
- Detenue’s advocate argues that the alleged illegal activity does not relate to maintenance of public order but rather to law and order
- The registration of four offences under Sections 379, 114 of IPC alone does not bring the detenue’s case under the Act’s definition
- Learned AGP for the respondent State supported the detention order.
- The detaining authority relied on four offences registered at Udhana and Dindoli Police Station respectively.
- Details of the offences include sections of the IPC, dates of arrest, and dates of release on bail.
- The detaining authority found sufficient material and evidence indicating the detenue’s habit of engaging in activities defined under section 2(c) of the Act.
- The detaining authority passed the order of detention considering the facts of the case.
Analysis
- Contravention of any law affecting public order must affect the community or the public at large.
- The offences alleged in the FIRs do not impact public order as required by the law.
- Detenue’s actions must prove to be a threat to the society as a whole to disturb public order.
- No specific material on record shows the detenue’s actions are dangerous to public order.
- The distinction between ‘law and order’ and ‘public order’ is crucial as per the Supreme Court.
- Minor breaches of peace primarily injuring individuals do not constitute public disorder.
- A disturbance affecting public order is essential for action under the Preventive Detention Act.
- The order of detention was passed immediately after the petitioner’s release on bail, raising questions.
- No evident justification for detention as the only option available to the petitioner.
- The detaining authority must undertake a meaningful exercise and apply the mind to the documents provided with the sponsoring proposal before reaching a conclusion.
- The petitioner was released on bail by the Court of proper jurisdiction, where the option of cancelling bail was available to the sponsoring authority.
- The sponsoring authority did not opt for the cancellation of bail as an alternative remedy.
- Referring to the recent decision in Shaik Nazeen v/s. State of Telanga and Ors, the Supreme Court emphasized the importance of exhausting available remedies before seeking further action.
- State can seek cancellation of bail or move an appeal to Higher Court if detenu is a menace to society.
- Preventive detention law is not the proper remedy if simplicitor FIR registration does not relate to breach of public order.
- Authority cannot invoke power under Section 3(2) of the Act without relevant and cogent material.
Decision
- Special Civil Application allowed
- Rule made absolute
- Detenue ordered to be set at liberty forthwith if not required in any other case
- Direct service permitted
- Impugned order of detention dated 27.10.2023 quashed and set aside
Case Title: SHYAMKANT @ SYAM @ RUSHI S/O ANIL VAIRALE THROUGH ANIL PAULAD VAIRALE Vs. STATE OF GUJARAT
Case Number: R/SCA/3489/2024
