In a significant legal development, the Gujarat High Court has quashed the detention order under the Gujarat Prevention of Anti-Social Activities Act. The case involved a challenge to the detention order dated 23.12.2023, where the Court found that the alleged offenses did not impact public order as required by the Act. The petitioner, who was defined as the detenue, is now ordered to be set at liberty. This judgment sets a precedent on the scope of preventive detention powers concerning public order. #GujaratHighCourt #PublicOrder
Facts
- The present petition challenges the detention order dated 23.12.2023 passed by the detaining authority under the Gujarat Prevention of Anti-Social Activities Act, 1985.
- The petitioner is defined as the detenue under Section 2(b) of the Act.
- The detention was carried out under Section 3(1) of the Act.
- The order of detention is the subject of challenge in this petition.
Arguments
- The advocate for the petitioner argues that the detention order should be quashed because it was based solely on the registration of one FIR related to Prohibition Act offenses.
- The petitioner’s advocate asserts that the alleged illegal activities do not relate to public order but rather constitute a breach of law and order.
- It is claimed that apart from witness statements and the FIR, there is no substantial evidence connecting the petitioner’s actions to a disturbance of public order.
- The advocate argues that the activities of the petitioner did not threaten the social fabric or the normal functioning of society, and therefore do not amount to a breach of public order.
Analysis
- The Court found that the subjective satisfaction of the detaining authority was not legal and valid as the alleged offenses in the FIR did not impact public order as required by the Act.
- It was noted that other relevant penal laws were sufficient to handle the situation, and the allegations against the detenue were not relevant to Section 2(b) of the Act.
- The Court emphasized that for a person to be detained under the Act, there must be evidence that they pose a threat to society so severe that it disrupts public order.
- The lack of specific material showing the detenue’s actions as a danger to public order was highlighted by the Court.
- Reference was made to a recent Apex Court decision where it was stated that using preventive detention should not be the first resort if other legal avenues, such as cancellation of bail or appeals, are available.
- Every act of assault or injury to specific persons does not lead to public disorder.
- Public order must lead to public disorder if disturbed.
- Not every breach of the peace leads to public disorder.
- Disorder caused by two drunkards quarreling and fighting does not constitute public disorder.
- Preventive detention powers are exceptional and have strict constitutional safeguards against abuse.
- Article 22 of the Constitution was inserted to ensure preventive detention powers do not become arbitrary.
- The detaining authority must have a subjective satisfaction based on material circumstances.
- Detention should not be based on mere implication in criminal proceedings.
- Detention under Rule 30 of the Defence of India Rules is for those likely to act in a manner prejudicial to public order.
- An act may affect law and order but not public order, which is within the circle of security of the State.
- Serious and aggravated forms of disorder directly affecting the community or injuring public interest are distinguished from relatively minor breaches of peace with only local significance.
- Mere disturbance of law and order is not sufficient for action under the Preventive Detention Act.
- A disturbance that affects public order falls under the scope of the Act.
- Simplicitor registration of an FIR alone does not have a nexus with the breach of maintenance of public order.
- No other relevant and cogent material existed for invoking the power under Section 3(1) of the Act.
Decision
- The present petition is allowed.
- The impugned order of detention dated 23.12.2023 is quashed and set aside.
- The petitioner, who is the detenue, is ordered to be set at liberty forthwith, if not required in any other case.
Case Title: BHAVESH @ DHRUV JARIWALA S/O KANAIYALAL RANA THROUGH TEJAS S/O KANAIYALAL RANA Vs. STATE OF GUJARAT
Case Number: R/SCA/739/2024
