Facts
- Petitioner-detainee has filed a petition to quash and set aside the detention order dated 22.11.2023
- Detention order was passed by the District Magistrate, Devbhoomi Dwarka under the PASA Act
- Petitioner has been detained based on two FIRs related to private disputes
- Petitioner has been granted bail in connection with both FIRs by the competent Court
Arguments
- The detaining authority had the option to cancel bail instead of passing the order of detention, but this was not availed.
- The order of detention without considering the lesser drastic remedy may lead to the subjective satisfaction of the authority being questioned.
- The petitioner was granted bail by the competent Court in connection with the second FIR before the impugned order of detention was passed.
- The petitioner’s activities are argued to potentially disturb law and order, but not to the extent of breaching public order.
- Learned AGP strongly objected to the grant of petition and argued that the alleged illegal activity of the detenue could lead to public order disturbance.
- Detaining authority believed the detention order was justified based on the detenue’s activities.
- The court, after reviewing the grounds of detention, found that the authority did not prove the detenue’s actions affect public order.
- Mere registration of FIRs related to private disputes against the detenue does not impact public order.
- Cited the case of Pushker Mukherjee v/s. State of West Bengal to explain the distinction between law and order versus public order.
Analysis
- Not every act of assault or injury to specific persons leads to public disorder
- Quarrels and fights between two people do not constitute public disorder
- Recent Supreme Court decision emphasized that ‘public order’ does not encompass every infraction of order
- Subjective satisfaction in invoking preventive detention law can be questioned as per Supreme Court ruling in Shaik Nazeen case
- State can consider other remedies such as cancellation of bail or appeal to Higher Court if detenu is a menace to society
- Simply registering FIRs does not automatically indicate breach of ‘public order’ warranting preventive detention
- No relevant material exists for invoking power under section 3(2) of the Act
- Disturbances that directly affect the community or public interest fall under preventive detention
- Minor breaches of peace with local significance are not enough for action under Preventive Detention Act
- Preventive Detention Act applies to disturbances that affect public order
- Subjective satisfaction must be arrived at by detaining authority before passing the order
- The detenue was released on bail before the impugned order of detention was passed
- Cancellation of bail was an available remedy but not resorted to
- Order of detention was passed without resorting to lesser drastic remedy
- The decision to pass order of detention was made directly without considering alternative options
Decision
- The order of detention dated 22.11.2023 is quashed and set aside.
- The detenue is ordered to be set at liberty forthwith, unless required in connection with any other case.
- The rule is made absolute, and direct service is permitted.
- The petition succeeds and is allowed, leading to the vitiating of the impugned order of detention.
Case Title: RAGHUVIRSINH SURENDRASINH KER Vs. STATE OF GUJARAT
Case Number: R/SCA/1378/2024
