In a significant ruling by the Gujarat High Court, a detention order under the PASA Act was quashed, highlighting the case of Shaik Nazeen v/s. State of Telangana. The judgment delves into the distinction between ‘law and order’ and ‘public order’ in cases involving preventive detention. The detenue, recently released on bail for two FIRs under the Immoral Traffic Prevention Act, successfully challenged the order, citing a lack of evidence linking their activities to a breach of public order.
Facts
- The petitioner has filed a petition to quash the order of detention dated 05.12.2023 passed under the PASA Act.
- The detention was based on two FIRs registered against the petitioner under the Immoral Traffic Prevention Act.
- The petitioner has been granted bail in connection with these FIRs.
- The argument presented is that the petitioner’s activities may disturb law and order but do not amount to a breach of public order.
Arguments
- Learned AGP strongly objected to the grant of petition, emphasizing the potential disturbance of public order due to the alleged illegal activity of the petitioner.
- The detaining authority was argued to have rightly passed the order of detention considering the circumstances.
- The petitioner was released on bail on 27.10.2023 in relation to the second FIR, but the order of detention was issued on 05.12.2023, after a significant delay of over one month.
- It was contended that instead of resorting to detention, the authority could have considered the lesser drastic remedy of canceling the bail.
- The detaining authority’s failure to explore alternative measures before passing the order of detention was highlighted, indicating a potential flaw in the subjective satisfaction of the detaining authority.
Analysis
- A mere disturbance of law and order is not enough for action under the Preventive Detention Act, it must be a disturbance that affects public order.
- Subjective satisfaction by the detaining authority is necessary before passing an order of detention.
- The impugned order of detention was passed more than a month after the petitioner was released on bail for the second FIR.
- The mere fact that two cases have been registered against the detenue does not automatically imply a threat to public order.
- The detaining authority failed to prove that the detenue’s activities affect or are likely to affect public order.
- The impugned order of detention stands vitiated as the lesser drastic remedy of cancellation of bail was not resorted to before passing the detention order.
- Subjective satisfaction in this case stands vitiated based on the recent decision in Shaik Nazeen v/s. State of Telangana and the need for exploring other remedies such as appeal or bail cancellation before resorting to preventive detention.
- Reference to Pushker Mukherjee v/s. State of West Bengal discussing the distinction between ‘law and order’ and ‘public order’ is made to highlight the type of cases where preventive detention is warranted.
- The discussion emphasizes that contravention of any law does not necessarily lead to public disorder unless it affects the community or public at large, distinguishing minor breaches of peace from serious threats to public order.
- Simplicitor registration of FIRs does not have a nexus with breach of maintenance of public order.
- No relevant and cogent material exists for invoking power under section 3(2) of the Act.
Decision
- The petition is allowed, and the petitioner is set at liberty forthwith, unless required for another case.
- Direct service is permitted.
- The rule is made absolute.
- The order of detention dated 05.12.2023 is quashed and set aside.
- The detenue is ordered to be released.
Case Title: MUNNABHAI BAVCHANDBHAI JOGRANA Vs. STATE OF GUJARAT
Case Number: R/SCA/959/2024
