In a recent landmark judgment, the Gujarat High Court quashed the detention order in the case of bootlegging involving Sohanlal Surjaram Visnoi against the State of Gujarat. The Court emphasized the importance of ensuring that preventive detention orders are supported by objective material and evidence to prove a disturbance of public order. This decision sets a standard for evaluating the validity of detention orders in cases involving alleged offenses under the Prohibition Act. Stay tuned for more insights on this significant development in the legal landscape.
Issue
- Special Civil Application filed challenging the order of detention dated 27.11.2023 passed by the Police Commissioner, Surat City.
- The petitioner detained as a ‘bootlegger’ based on a solitary offence registered against him.
- The challenge is based on the grounds that a solitary offence under the sections of the Gujarat Prohibition Act does not meet the definition provided under section 2(b) of the Act.
Arguments
- Learned Advocate for the detenue argues that the alleged illegal activity has no connection to the maintenance of public order.
- Apart from witness statements, FIRs, and Panchnama, there is no substantial evidence linking the detenue’s actions to a breach of public order.
- The alleged activity in the solitary criminal case is insufficient to disrupt the normal societal rhythm and pose a threat to public life.
- The detaining authority did not consider the option of cancelling the petitioner’s bail before resorting to preventive detention.
- The subjective satisfaction of the detaining authority is questioned as a recent Supreme Court decision highlighted the importance of exhausting other legal remedies before resorting to preventive detention.
- The State could have pursued the cancellation of bail as a less drastic measure to prevent the petitioner from committing further offenses.
- The subjective satisfaction of the detaining authority in this case is deemed invalid as the alleged offenses in the FIR do not impact public order as required under the Act.
- The detention order was supported by the AGP, citing evidence against the detenue, but the grounds of detention were based on a single FIR related to Prohibition Act violations.
- The detention order was issued shortly after the petitioner was granted bail in the mentioned case.
Analysis
- Preventive detention orders can be recorded based on a solitary incident if it is likely to disturb public order.
- The detaining authority must prove that the activities of the petitioner affect or are likely to affect public order adversely.
- The subjective satisfaction of the detaining authority must be supported by objective material and evidence.
- Sale of liquor by the petitioner alone is not sufficient grounds for preventive detention unless it affects public order.
- The detaining authority’s conclusion must be supported by contemporaneous material and not be arbitrary.
- The detaining authority can pass an order of detention on the basis of a solitary incident if it is likely to disturb public order.
- There must be justifiable material to show that the impugned activity is likely to have an adverse impact on public order.
- In the absence of material showing disturbance of public order, continued detention may not be justifiable.
- The Court has the power to quash detention orders if they are not based on justifiable grounds affecting public order.
- The decision is consistent with the observations and directions of the Supreme Court in relevant cases.
- The Court relies on observations made in a reported judgment in the case of Sohanlal Surjaram Visnoi, where it was stated that the alleged anti-social activities of the detenu must adversely affect or likely to adversely affect the maintenance of public order.
- Further referencing the case of Vasava Umeshbhai Laxmanbhai Vs. State of Gujarat & Ors., it was highlighted that the mere registration of a case against the detenue under the Prohibition Act does not directly impact public order.
- While the petitioner-detenu may face punishment for alleged offenses, the acts constituting the offenses do not imply a disruption in the even tempo of community life or affect public health.
- 1.1
- Registration of FIR/s alone does not establish breach of public order under the Act.
- 1.2
- Absence of relevant material for invoking power under section 3(2) of the Act.
- 1.3
- Subjective satisfaction of the detaining authority mentioning detrimental effect on public health but lacking contemporaneous supporting material.
- 1.4
- Failure to provide evidence supporting the conclusion of disturbance of public order due to liquor sales by the petitioner.
- 1.5
- Absence of any FSL report in the case.
- 1.6
- Detaining authority’s conclusion without material support makes subjective satisfaction flawed.
Decision
- The present petition has been allowed.
- The order of detention dated 27.11.2023 has been quashed and set aside.
- The rule is made absolute accordingly.
- The detenue is directed to be set at liberty forthwith if not required in any other case.
- Direct service is permitted.
Case Title: JAMAL S/O KUTUBUDDIN @ NANKU SHAIKH Vs. STATE OF GUJARAT
Case Number: R/SCA/20787/2023
