In a significant development, the Gujarat High Court has ruled in favor of liberty by quashing the detention order in a case related to alleged theft FIRs. The judgment addresses the concerns raised by the detenue following the immediate passing of the detention order after being released on bail. Stay tuned to learn more about the details and implications of this crucial decision.
Facts
- Petitioner detained on the ground of five FIRs related to alleged theft
- Petitioner released on bail for all offences by competent Court
- Petitioner seeks to quash detention order under PASA Act
Arguments
- Learned advocate argued that instead of passing the order of detention, cancellation of bail could have been considered as a less drastic remedy.
- The petitioner’s activities were deemed to potentially cause disturbance to law and order, but not breach of public order.
- The subjective satisfaction of the detaining authority was deemed vitiated by the learned advocate.
- The learned AGP strongly opposed the petition, stating that the petitioner’s activities could lead to disturbance of public order.
- The detaining authority was argued to have rightly passed the order of detention considering the facts of the case.
- The petitioner was released on bail on 09.11.2023, and the order of detention was passed the next day on 10.11.2023.
Analysis
- The detaining authority did not consider the lesser drastic remedy of cancellation of bail before passing the order of detention.
- The order of detention was passed immediately after the detenue was released on bail, raising questions about the urgency of the detention.
- The mere registration of five FIRs relating to theft against the detenue does not establish a threat to ‘public order’.
- The grounds of detention provided were insufficient to prove that the detenue’s activities affect or are likely to affect ‘public order’.
- Subjective satisfaction would stand vaitated as per the recent decision of the Hon’ble Supreme Court in the case of Shaik Nazeen v/s. State of Telangana and Ors.
- In cases where individuals quarrel and fight, it may be considered disorder but not public disorder and should be handled under criminal law.
- Detention cannot be justified on the grounds of disturbing public order for such cases.
- Contravention of law must affect the community or public at large to be considered as affecting public order.
- There is a distinction between serious disorder affecting community and minor breaches of peace primarily impacting individuals.
- Mere disturbance of law and order is not sufficient for action under Preventive Detention Act, public order disturbance is required.
- The case of Pushker Mukherjee v/s. State of West Bengal discussed the distinction between ‘law and order’ and ‘public order’.
- The Supreme Court in Pushker Mukherjee case highlighted that every act of assault or injury to specific persons does not necessarily constitute a disturbance of public order.
- Simplicitor registration of FIRs does not have a nexus with the breach of maintenance of ‘public order’.
- The authority cannot invoke power under section 3(2) of the Act in this case.
- No relevant and cogent material exists for invoking power under section 3(2) of the Act.
Decision
- The order of detention dated 10.11.2023 has been quashed and set aside.
- The detenue is ordered to be set at liberty forthwith, unless required in connection with another case.
- The impugned order of detention is deemed vitiated.
- The rule is made absolute.
- Direct service is permitted.
Case Title: LAXMANBHAI S/O CHHANNUBHAI LUHAR Vs. STATE OF GUJARAT
Case Number: R/SCA/3250/2024
