In a recent ruling by the Gujarat High Court, the impact on public order was scrutinized in the case of preventive detention. The Court examined the provisions of the PASA Act and factual circumstances to determine the necessity of detention. The petitioner’s activities were found not to pose a significant threat to public order, leading to the quashing of the detention order. This judgment highlights the importance of valid and justifiable reasons for preventive detention in cases like the one involving the detenue.
Arguments
- Illegal activity likely to be carried out has no nexus with maintenance of public order
- Advocate for the detenue argues that alleged activity cannot impact public order
- No connection between alleged illegal activity and public order mentioned by learned Advocate
- The detention order was passed on 09.11.2023.
- No material beyond witness statements, FIR registration, and Panchnama connects the detenue to anti-social activities affecting public order.
- The detenue’s solitary criminal case did not disrupt society’s normal existence.
- The State could have used legal procedures like filing a bail cancellation application instead of resorting to detention.
- The detenue had been granted bail for the offense cited by the detaining authority.
Analysis
- The Court analyzed the provisions of the PASA Act and the factual matrix of each case to determine the impact on public order.
- The Court found that the solitary incidents in question did not affect public order or create public disturbance.
- As a result, the Court quashed and set aside the detention orders in each case.
- The Court referred to the Supreme Court’s decision in Darpan Kumar Sharma v. State of Tamilnadu for reinforcement.
- In another case, the Court observed that mere selling or possessing liquor may not cause harm or insecurity among the public.
- A Coordinate Bench mentioned that the mere registration of a case under the Prohibition Act does not necessarily relate to the maintenance of public order.
- The detaining authority’s conclusion that the petitioner’s activities were detrimental to public health did not have sufficient evidence or contemporaneous material.
- The Court emphasized that preventive detention under PASA Act requires a direct adverse effect on public order, not just being a ‘bootlegger’.
- The Court critiqued the detaining authority for not considering the option of cancelling bail instead of detention.
- It was noted that while the petitioner may be punished for alleged offenses, they did not significantly impact public order or health.
- The Court found that the detaining authority failed to substantiate how the petitioner’s activities adversely affected public order, especially in the absence of an FSL report.
- The preventive detention order can be based on a solitary incident or offense if there is justifiable subjective satisfaction on objective material that it is likely to disturb public order.
- The recent decision in Shaik Nazeen v/s. State of Telangana and Ors emphasized the need for convincing reasons and justifiable material to show adverse impact on public order.
- If the detenue is considered a menace to society, prosecution should seek cancellation of bail or move an appeal to a higher court instead of resorting to preventive detention.
- The subjective satisfaction of the detaining authority must be based on valid and justifiable reasons related to maintaining public order, which cannot be fulfilled by mere allegations in an FIR.
- The allegations against the detenue must demonstrate a significant threat to society and public order, beyond what can be addressed by existing penal laws.
- Absence of material on record makes detaining authority’s conclusion invalid
- Subjective satisfaction of detaining authority is found to be flawed
- Detaining authority’s decision is vitiated due to lack of evidence
Decision
- Registration of FIR/s alone cannot be linked to breach of public order.
- Detaining authority cannot use Act without relevant material.
- Petition allowed, impugned order quashed and detenue to be set at liberty.
- Direct service permitted, rule made absolute.
Case Title: BRIJESH S/O SANTLAL GAUTAM Vs. STATE OF GUJARAT
Case Number: R/SCA/956/2024
