In a recent judgment by the Gujarat High Court, the quashing of the Order of Detention pertaining to preventive measures against anti-social activities has been discussed. The case sheds light on the distinction between ‘law and order’ and ‘public order’, emphasizing the need for a clear understanding in such matters. The Court’s decision provides insights into the balancing act required when addressing potential threats to public order. #LegalCase #HighCourt
Facts
- The petitioner has been detained under the PASA Act based on six offences registered against him at Khokra Police Station.
- Four of the offences are under section 379 of the Indian Penal Code (IPC).
- One offence is under section 394 read with Section 114 of the IPC.
- The last offence is under sections 323, 427, and other sections of the IPC.
- The petitioner has been granted bail in connection with all these offences by the competent Court.
Arguments
- The detaining authority’s subjective satisfaction would stand vitiated due to the timing of the order of detention immediately after the petitioner’s release on bail.
- The petitioner’s activities may cause disturbance to law and order but do not amount to breach of ‘public order’.
- The AGP contends that there is sufficient material against the petitioner indicating a pattern of illegal activities.
- The AGP argues that the detaining authority was justified in passing the order of detention given the facts of the case.
- The petitioner suggests that instead of detention, the authority could have considered the lesser drastic remedy of canceling bail.
Analysis
- Subjective satisfaction not reached by detaining authority before passing impugned order of detention
- Detenue released on bail for sixth FIR and impugned order of detention passed immediately after
- Detaining authority failed to substantiate alleged anti-social activities affecting maintenance of public order
- Mere disturbance of law and order not sufficient, must affect public order for action under Preventive Detention Act
- The distinction between ‘law and order’ and ‘public order’ was discussed in the case of Pushker Mukherjee v/s. State of West Bengal
- Subjective satisfaction can be vitiated, as held in the case of Shaik Nazeen v/s. State of Telangana and Ors.
- Merely registering FIRs, especially pertaining to theft, does not automatically imply a breach of public order
- The proper remedy, if the detenu is a menace to society, would be to seek cancellation of bail or move an appeal to a Higher Court rather than resorting to preventive detention
- The Court had the option to cancel bail as a lesser drastic remedy
- Instead of taking that step, the order of detention was passed immediately
Decision
- Order of detention dated 08.11.2023 quashed and set aside
- Detenue ordered to be set at liberty forthwith
- Impugned order of detention stood vitiated
- Rule made absolute
Case Title: VISHAL @ KALIYO @ KALA KANTHA GOVINDBHAI PAVAR THROUGH KIRAN PRAHLADBHAI JOGASAN Vs. COMMISSIONER OF POLICE, AHMEDABAD CITY
Case Number: R/SCA/6167/2024
