In a significant ruling by the Gujarat High Court, the detention order dated 27.10.2023 has been quashed and set aside, leading to the immediate release of the detenue. The Court emphasized the importance of differentiating between law and order and public order, highlighting that merely disturbing law and order does not warrant preventive detention. The judgment sets a precedent for cases where alternative legal measures can be pursued before resorting to preventive detention.
Arguments
- The advocate for the detenue argues that the alleged illegal activity does not relate to public order but rather to a breach of law and order.
- The advocate states that the mere registration of four offences under Sections 379 and 114 of IPC does not meet the criteria under the Act for detention.
- It is suggested that the detention order should be quashed and set aside based on these arguments.
- Learned AGP for the respondent State supported the detention order passed by the authority.
- Sufficient material and evidence found during the investigation was supplied to the detenue.
- Detenue was found to be habitually indulging in activities defined under section 2(c) of the Act.
- The detaining authority was justified in passing the detention order based on the facts of the case.
- The detention order deserves to be upheld by the Court according to the learned AGP.
Analysis
- Distinction between ‘law and order’ and ‘public order’ has been clearly laid down.
- Infractions of law must affect the community or the public at large to be considered as affecting public order.
- Serious and aggravated forms of disorder directly affecting the community come under the scope of Preventive Detention Act.
- Merely disturbing law and order leading to disorder is not sufficient for action under the Act.
- The order of detention was passed on the very next day of the order of bail, indicating a quick turnaround.
- Detention should be the last resort, and all other legal measures should be considered before resorting to preventive detention.
- Detaining authority must undertake a meaningful exercise and apply the mind to the documents provided with the proposal
- The detaining authority must come to a conclusion by subjectively satisfying itself
- Petitioner had been enlarged by the Court of proper jurisdiction with the option of alternative remedy of cancellation of bail
- Sponsoring authority did not resort to the alternative remedy of cancellation of bail
- Reference made to recent Supreme Court decision in Shaik Nazeen v/s. State of Telanga and Ors (2023) 9 SCC 633
- Supreme Court’s observations made in para 19 of the mentioned case
- Registering an FIR alone does not indicate a breach of public order or warrant preventive detention.
- Without additional relevant material, invoking power under section 3(2) of the Act is not justified.
- If the detenu poses a significant threat to society, prosecution can seek bail cancellation or appeal to a Higher Court.
- Preventive detention should not be the immediate remedy in cases where alternative legal actions are available.
Decision
- The order of detention dated 27.10.2023 has been quashed and set aside.
- The detenue is ordered to be released immediately unless needed in another case.
- The rule is made absolute accordingly.
- Direct service is permitted.
Case Title: ADINATH @ GOLIA S/O YUVRAJ BORSE THROUGH BHAVNA YUVRAJ BORSE Vs. STATE OF GUJARAT
Case Number: R/SCA/19941/2023
