In a significant judgment, the Gujarat High Court ruled in favor of quashing the detention order passed by the Commissioner of Police, Surat City. The case highlighted the delicate balance between individual rights and public order, emphasizing the need for concrete evidence of a threat to public order. The court’s decision sets a precedent for cases involving preventive detention in the state.
Facts
- The petitioner has filed a petition to quash and set aside the order of detention passed by the Commissioner of Police, Surat City under the PASA Act.
- The petitioner has been detained based on two FIRs, one of which relates to the offense of theft.
- The petitioner has been granted bail in connection with both FIRs by the competent Court.
- It is argued that the activities of the petitioner may disturb law and order but do not amount to a breach of public order.
- The petitioner was released on bail for the second FIR on 16.10.2023, while the order of detention was passed on 29.11.2023, indicating a delay of about 1½ months.
- The detaining authority is criticized for not opting for the lesser remedy of bail cancellation before resorting to detention.
- The subjective satisfaction of the detaining authority is questioned.
- The Assistant Government Pleader contends that the petitioner’s activities could disturb public order and justifies the detention order.
Analysis
- The Preventive Detention Act is applicable only to serious and aggravated forms of disorder affecting the community or injuring the public interest.
- Merely a disturbance of law and order is not sufficient for action under the Preventive Detention Act; the disturbance must affect public order to fall under the Act.
- Subjective satisfaction by the detaining authority is essential before passing the order of detention.
- Delay of 1½ months between the release on bail and passing of the impugned order of detention casts doubt on the necessity and immediacy of the detention.
- The registration of two FIRs against the detenue does not automatically indicate a threat to public order; the focus is on actions that directly impact public order.
- After scrutiny, the court concludes that the detaining authority failed to prove that the alleged anti-social activities of the detenue pose a threat to public order.
- Disturbance of public order must affect the community or the public at large.
- Quarrels and fights between individuals do not constitute public disorder.
- Cancellation of bail should be considered before resorting to preventive detention.
- Subjective satisfaction for preventive detention can be vitiated if less drastic remedies are available.
- Registration of FIRs alone does not establish a breach of public order.
- Proper remedy should be sought under the circumstances of the case, rather than preventive detention.
- Assault or injury to specific persons does not necessarily constitute a breach of public order.
Decision
- Direct service is permitted to set the detenue at liberty forthwith if not required in any other case.
- The petition is allowed and the rule is made absolute.
- The order of detention dated 29.11.2023 is quashed and set aside.
- The detenue is ordered to be released.
Case Title: KRISHNA S/O RAJUBHAI KSHIRSAGAR Vs. STATE OF GUJARAT
Case Number: R/SCA/20582/2023
