In a landmark judgement by the Gujarat High Court, the order of detention dated 12.12.2023 has been quashed and set aside in the case concerning preventive detention. The petitioner, who was released on bail for three FIRs under the Gujarat Prohibition Act, has now been ordered to be released immediately. The court’s decision underscores the importance of a clear threshold for preventive detention based on the impact on public order. Stay informed about this crucial legal development.
Facts
- The petitioner has been detained based on the registration of three FIRs under the Gujarat Prohibition Act.
- The petitioner was released on bail by the competent court in connection with all three FIRs.
- The activities of the petitioner may disturb law and order but do not constitute a breach of public order.
- The petitioner was released on bail for the third FIR on 29.11.2023, and the detention order was passed on 12.12.2023.
- The detaining authority could have considered cancelling bail instead of resorting to detention immediately.
- The AGP contends that the petitioner’s activities could disturb public order, justifying the detention order.
Analysis
- Merely a disturbance of law and order is not sufficient for action under the Preventive Detention Act, it must affect public order to fall under the scope of the Act.
- Subjective satisfaction by the detaining authority is essential before passing an order of detention.
- Registration of three FIRs under the Prohibition Act against the detenue does not automatically suggest a threat to public order.
- The detenue was released on bail before the impugned order of detention was passed, indicating a lack of immediate threat to public order.
- Distinguishing between serious community-affecting disorders and minor local disturbances that primarily harm individuals and only secondarily impact public interest is crucial.
- The detaining authority has not provided enough evidence to show that the detenue’s alleged anti-social activities pose a threat to public order.
- Contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large.
- Subjective satisfaction for preventive detention would stand vitiated if it does not directly relate to public disorder.
- Recent decision of the Hon’ble Supreme Court in Shaik Nazeen v/s. State of Telangana highlights the need for proper remedy other than preventive detention in case of alleged menace to society.
- Simply registering FIRs does not automatically constitute a breach of ‘public order’ warranting preventive detention under Section 3(2) of the Act.
- Decision in Pushker Mukherjee v/s. State of West Bengal differentiates between ‘law and order’ issues and those concerning ‘public order’.
- Manifestation of disorder through individual conflicts does not equate to public disorder according to the Hon’ble Supreme Court.
- Cancellation of bail was available as a lesser drastic remedy
- Order of detention was passed without resorting to cancellation of bail
- Decision to directly pass order of detention was made
Decision
- The order of detention dated 12.12.2023 has been quashed and set aside.
- The detenue is ordered to be released immediately, unless needed for any other case.
- The impugned order of detention is deemed vitiated and the rule is made absolute.
- Direct service is permitted for the implementation of this judgement.
Case Title: BARMASBHAI @ BHARATBHAI SUPADBHAI VASAVA Vs. DISTRICT MAGISTRATE , SURAT
Case Number: R/SCA/855/2024
