In a recent ruling by the Gujarat High Court, the detention order dated 06.01.2024 under the Gujarat Prevention of Anti-Social Activities Act, 1985 was quashed. The case involved a challenge by the detenue against the order issued by the detaining authority. The court delved into the distinction between law and order and public order, emphasizing the need for a clear disturbance to public order to justify preventive detention. The petitioner-detenu is now ordered to be set at liberty, highlighting the court’s commitment to upholding legal safeguards in such cases.
Facts
- Present petition challenges the order of detention dated 06.01.2024 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 order was issued in exercise of powers conferred under Section 3(1) of the Act.
Arguments
- The petitioner’s advocate argues that the detention order should be quashed as it is solely based on the registration of an FIR for specific offenses.
- The advocate contends that the alleged illegal activities do not relate to public order but at most to law and order.
- There is a lack of substantial evidence apart from witness statements and the FIR to justify the detention under the Act.
- The petitioner’s actions in the criminal case are not seen as a threat to the social fabric or public order according to the advocate.
- The advocate challenges the disruption of the social apparatus or the rule of law due to the petitioner’s activities.
- The State’s advocate supports the detention order citing sufficient evidence of the petitioner’s habitual activities falling under the Act’s definition.
- The subjective satisfaction of the detaining authority is found to be not legal and valid as the alleged offenses in the FIR do not relate to public order.
- Other relevant penal laws are deemed sufficient to handle the situation involving the petitioner – detenue.
- Allegations against the petitioner – detenue are not relevant to bring them within the meaning of Section 2(b) of the Act.
- There is a lack of material indicating that the petitioner – detenue poses a threat to public order or the society in a manner that disrupts the social apparatus.
- The detenue does not fit into the category under Section 2(b) of the Act based on the available information.
- Citing certain case laws, it is emphasized that if the detenu truly poses a menace to society, the prosecution should consider canceling their bail or appealing to a higher court for appropriate action.
Analysis
- The case demonstrates a lack of consideration for the relevant circumstances by the detaining authority.
- The two FIRs filed against the detenu could be managed through regular criminal law procedures.
- An act may impact law and order without affecting public order, and vice versa.
- A District Magistrate can act under Rule 30(1)(b) to prevent subversion of public order, not for maintaining law and order in normal situations.
- Applying preventive detention in this case is not the appropriate solution.
- Visualizing three concentric circles: law and order, public order, and security of the State.
- Preventive detention powers are exceptional and draconian, with strict safeguards against abuse.
- Public order is distinct from law and order, as disorder must lead to public disorder to fall under preventive detention.
- Not every act of assault or injury leads to public disorder; the disturbance must affect the community or public at large.
- Routine and unjustified use of preventive detention laws in Telangana was highlighted in recent court decisions.
- Apprehension of breach of law and order is not enough to adversely affect the maintenance of public order.
- Detentions must only occur when there is a clear disturbance to public order, not just law and order.
- Recent cases have shown an incorrect application of the standard for maintenance of public order in Telangana detentions.
- Over five detention orders have been quashed in the last five years in Telangana for incorrect application of public order standards.
- It is crucial to ensure that preventive detention powers do not become arbitrary state authority exercises.
Decision
- The petition is allowed as the simplicitor registration of FIR alone does not have any connection with breach of maintenance of public order.
- The authority cannot use the Act for invoking power as no other relevant material exists.
- The impugned order of detention dated 06.01.2024 is quashed and set aside.
- The petitioner-detainee is ordered to be set at liberty forthwith, if not required in any other case.
Case Title: RITESH @ VIKKO DATRO RAJESHBHAI SHUKLA THROUGH HIS FRIEND BHAVESH RAJUBHAI JADAV Vs. STATE OF GUJARAT
Case Number: R/SCA/762/2024
