In a significant ruling by the Gujarat High Court, the detention order issued by the Surat City Commissioner of Police against the bootlegging accused has been quashed. The judgment sheds light on the distinction between ‘law and order’ and ‘public order’, emphasizing the need for specific evidence to invoke preventive detention. This case sets a precedent in clarifying the threshold for invoking such measures in cases impacting public order. Read on for more insights!
Facts
- The detaining authority’s subjective satisfaction would be considered void due to the petitioner being released on bail for the offenses mentioned in the order of detention.
- The petitioner has filed a petition to quash the detention order dated 09.11.2023 issued by the Commissioner of Police, Surat City under the PASA Act.
- The petitioner’s detention is based on two offenses registered against him under the Gujarat Prohibition Act.
- The petitioner was released on bail for the second offense on 08.11.2023, and the detention order was passed on the next day.
- The authority could have chosen to cancel the bail instead of issuing an order of detention.
- Cancellation of bail would have been a less drastic remedy in this situation.
- The authority had the opportunity to use a milder approach to address the issue.
Arguments
- The Advocate General objected to the grant of the petition, stating there is sufficient material against the detenue for indulging in bootlegging activities.
- AGP argued that the detaining authority rightfully passed the order of detention based on the evidence against the detenue’s activities.
- It was emphasized that the petitioner’s actions may disturb law and order but do not amount to a breach of ‘public order’.
- AGP suggested that the petition should not be entertained due to the nature of the detenue’s activities.
Analysis
- The detaining authority did not show subjective satisfaction before issuing the order of detention.
- Detenue was released from jail and immediately detained the next day without resorting to the lesser drastic remedy of cancelling bail.
- The order of detention lacks substantiation that the alleged illegal activity of the detenue affects ‘public order’.
- Having gone through the grounds of detention, the court opines that the detaining authority failed to prove the detenue’s activities as a bootlegger adversely affects ‘public order’.
- Merely having two offences under the Prohibition Act does not automatically relate to the maintenance of ‘public order’.
- Subjective satisfaction would stand viciated if preventive detention is used when other remedies like cancellation of bail or appeal to a higher court are available.
- Contravention of law affects order but to affect public order, it must impact the community or the public at large.
- A distinction is made between serious forms of disorder that directly affect the community and minor breaches of peace with local significance.
- Disorder between two individuals does not constitute public disorder.
- Reference to the case of Pushker Mukherjee v/s. State of West Bengal where the Supreme Court discussed the difference between ‘law and order’ and ‘public order’.
- The Supreme Court questioned whether ‘public order’ includes every kind of order infraction or only certain categories of them.
- Registration of FIRs alone does not constitute a breach of public order
- No relevant material justifying invocation of power under section 3(2) of the Act
- The authority cannot rely on simplicitor registration of FIRs to justify invoking the Act
Decision
- The petition has been allowed and the detenue is to be set at liberty forthwith unless needed for another case.
- The order of detention dated 09.11.2023 has been quashed and set aside.
- Direct service is permitted in this case.
- The rule is made absolute.
Case Title: VEDPRAKASH @ SHAHRUKH S/O JAGDISHPRASAD SHARMA THROUGH VAISHALI W/O VEDPRAKASH SHARMA Vs. STATE OF GUJARAT
Case Number: R/SCA/20150/2023
