The Gujarat High Court recently made a significant decision in the case involving the quashing of the detention order related to illegal activities under the Immoral Traffic Prevention Act. The detention order, passed immediately after the petitioner’s release on bail, was challenged and ultimately set aside by the High Court. Stay tuned to learn more about the details and implications of this ruling.
Facts
- Petitioner detained under PASA Act for involvement in two offences under Immoral Traffic Prevention Act at Umra Police Station
- Petitioner released on bail by competent Court in connection with both offences
- Activities of petitioner may disturb law and order situation but not breach public order
Arguments
- AGP objected to the grant of petition, stating there is sufficient evidence against the detenue for engaging in illegal activities.
- AGP argues that the detaining authority rightfully passed the order of detention given the detenue’s habitual involvement in illegal activities.
- AGP suggests that instead of detention, the authority could have considered the option of cancelling bail, which is a less drastic remedy.
- The petitioner was released on bail on 08.11.2023 and the order of detention was passed on 09.11.2023, immediately after the release.
Analysis
- The detaining authority failed to substantiate that the alleged anti-social activities of the detenue adversely affect or are likely to affect the maintenance of ‘public order’.
- A distinction is made between serious forms of disorder affecting the community and minor breaches of peace with purely local significance.
- Merely having two offences registered under the Immoral Traffic Prevention Act does not by itself impact the maintenance of ‘public order’.
- A mere disturbance of law and order leading to disorder is not sufficient for action under the Preventive Detention Act; it must be a disturbance affecting public order.
- It does not appear that subjective satisfaction was arrived at by the detaining authority before passing the impugned order of detention.
- Detention in cases like the one where the detenue was released and then immediately detained after a day should be under ordinary criminal law provisions, not preventive detention.
- Distinction between ‘law and order’ and ‘public order’ discussed
- Reference to the case of Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852]
- Observation by the Hon’ble Supreme Court regarding the interpretation of ‘public order’
- Clarification that ‘public order’ must affect the community or the public at large
- Discussion on the need for a specific impact on public order for invoking preventive detention laws
- Reference to the recent decision in the case of Shaik Nazeen v/s. State of Telangana and Ors.
- Emphasizing that seeking shelter under preventive detention law may not be the proper remedy in certain cases
- Cancellation of bail was available as a lesser drastic remedy
- Order of detention was passed without resorting to cancellation of bail
Decision
- The order of detention dated 09.11.2023 is quashed and set aside
- The detenue is ordered to be set at liberty forthwith
- Rule is made absolute
- Direct service is permitted
Case Title: HITENDRASINH @ SARKAR S/O PRAVINSINH PARMAR Vs. STATE OF GUJARAT
Case Number: R/SCA/20785/2023
