In a significant ruling, the Gujarat High Court has quashed the detention order in the case of theft incidents involving the detenue. The court found that the authority did not establish a relevant nexus between the alleged activities and the breach of public order. Learn more about the detailed judgment in this blog post.
Facts
- The petitioner was released on bail on 02.12.2023 in connection with the second FIR.
- The order of detention under PASA was passed on 03.12.2023.
- The petitioner has been detained based on two FIRs related to theft, for which he has been granted bail.
- The advocate argues that the petitioner’s activities may cause law and order disturbance but not breach of public order.
Arguments
- Detaining authority had the option to cancel bail instead of passing order of detention
- Passing order of detention without considering alternative remedies vitiates subjective satisfaction of authority
- Learned AGP argues that detenue’s activities would disturb public order
- AGP believes detaining authority rightly passed order of detention
- AGP strongly objects to petition, stating it should not be entertained
Analysis
- A mere disturbance of law and order leading to disorder is not sufficient for action under the Preventive Detention Act.
- The authority did not seem to have arrived at a subjective satisfaction before passing the detention order.
- The petitioner was released on bail by the court on 02.12.2023, and the detention order was passed on 03.12.2023.
- Two cases of theft registered against the detenue do not automatically constitute a threat to public order.
- The detaining authority failed to substantiate that the detenue’s alleged anti-social activities would adversely affect public order.
- The distinction between ‘law and order’ and ‘public order’ was discussed in the case of Pushker Mukherjee v/s. State of West Bengal.
- Serious and aggravated forms of disorder directly affecting the community constitute public order, while minor breaches of peace primarily harming individuals are categorized as law and order issues.
- Contravention of any law affects order, but to impact public order, it must affect the community or the public at large.
- The recent decision in the case of Shaik Nazeen v/s. State of Telangana emphasized that seeking preventive detention is not a proper remedy unless the individual poses a significant threat to society.
- Simply registering FIRs does not necessarily indicate a breach of ‘public order’ warranting the use of preventive detention powers.
- There must be a relevant and cogent nexus between an act and the breach of maintenance of ‘public order’ to invoke power under section 3(2) of the Act.
- Cancellation of bail was an option but not resorted to.
- Order of detention was passed without resorting to lesser drastic remedy.
- Decision not to cancel bail influenced the decision for detention.
Decision
- The order of detention dated 03.12.2023 has been quashed and set aside.
- The detenue is ordered to be set at liberty if not required in any other case.
- The rule is made absolute.
- Direct service is permitted.
- The impugned order of detention is found to be vitiated.
Case Title: ADNAN ASFAKBHAI SHAIKH Vs. STATE OF GUJARAT
Case Number: R/SCA/1974/2024
