In a significant legal development, the Gujarat High Court ruled in the case of Original Name against the State of Gujarat regarding the quashing of a detention order. The court carefully examined the facts presented and concluded that the detention order was not justifiable based on the available evidence. Stay tuned to dive deeper into this crucial legal decision.
Facts
- The challenge is to the order of detention dated 13.11.2023 passed by the Police Commissioner, Surat
- The petitioner has been detained as a ‘bootlegger’ based on a solitary offense registered against him
Arguments
- The learned advocate for the detenue argues that the illegal activity alleged to have been carried out by the detenue does not have any connection to the maintenance of public order.
- Apart from witness statements, FIRs, and Panchnama, there is no other substantial evidence linking the detenue’s actions to a breach of public order.
- The advocate asserts that the solitary criminal case involving the detenue did not disrupt the normal life of the society or pose a threat to public order.
- The order of detention is argued to be invalid as the solitary offence under the Prohibition Act is not sufficient to categorize the detenue under the definition of the Act.
- Learned AGP for the respondent State supported the detention order
- Sufficient material and evidence found during investigation was supplied to the detenue
- Detenue is habitual in the activity as defined under section 2(b) of the Act
- Detaining authority rightfully passed the order of detention based on the facts of the case
- Detention order deserves to be upheld by the Court
Analysis
- The detaining authority failed to substantiate that the petitioner’s alleged antisocial activities adversely affect public order.
- Being a ‘bootlegger’ does not automatically justify preventive detention unless activities adversely affect public order.
- Emphasis is on ‘public order’ and not ‘law and order’ as per the PASA Act.
- No evidence of the petitioner’s activities affecting public order or causing public disturbance.
- Quashed detention orders as they were not justifiable in the absence of public order disturbance.
- Observations in line with the Supreme Court’s decision in Darpan Kumar Sharma case.
- Lack of material supporting the detaining authority’s conclusion of adverse effects on public health.
- Absence of FSL report or contemporaneous evidence regarding disturbance caused by liquor sales.
- Court’s view that mere possession or sale of liquor does not inherently cause harm to public health or order.
- Suggestion that cancelling bail could have been an appropriate measure instead of preventive detention.
- Detaining authority’s failure to consider the option of cancelling bail as a preventive measure.
- Citing recent Supreme Court decision in Shaik Nazeen case to highlight the importance of considering all options before preventive detention.
- Registration of a solitary FIR as the only evidence provided for the detainment.
- Opinion that alleged offences committed by the petitioner did not disrupt public health or order significantly.
- State has the remedy of seeking cancellation of bail if the detenue is a menace to society.
- Prosecution can move an appeal to the Higher Court if necessary.
- The State is not without options to address the issue of a dangerous individual being on bail.
- Preventive detention order cannot be based on a solitary incident or offense alone.
- Detaining authority can pass the order if there is justifiable subjective satisfaction on objective material that the incident or offense is likely to disturb public order.
- Reasons and material must convincingly show that the activity or action is likely to have adverse impact on public order.
- Absence of material on record makes subjective satisfaction of detaining authority questionable.
- Registration of FIR alone does not establish a nexus with breach of public order.
- No other relevant and cogent material exists for invoking power under Section 3(2) of the Act.
- The petition is allowed, and the order of detention is quashed and set aside.
- The detenue is to be released immediately if not required in any other case.
Decision
- The court ruled in favor of Original Name
- The court declared that the actions of the Respondent were unlawful
- Direct service is permitted as per the judgement
Case Title: NR. MOHANLAL S/O BABULAL SHIYAG THRO ANIL ISHWARDAYAL SHAHU Vs. STATE OF GUJARAT
Case Number: R/SCA/20261/2023
