In a landmark judgment by the Gujarat High Court, the detention order passed by the District Magistrate, Kutch – Bhuj, has been quashed. The case, which delved into the nuances of Public Order and Law and Order, saw the court ruling in favor of the detenue. The order, passed under the PASA Act, raised important questions about the thresholds for preventive detention. Stay tuned to learn more about this significant legal development.
Facts
- Petitioner challenged the order of detention under PASA Act passed by District Magistrate, Kutch – Bhuj.
- Petitioner sought quashing of the order and release of the detenue.
- The order was passed under sub-section (1) of Section 3 of the PASA Act.
- The petitioner requested the court to set aside the detention order.
Arguments
- The illegal activity attributed to the detenue does not have a nexus with the maintenance of public order.
- The activity in question can be considered a breach of law and order, not a threat to public order.
- The criminal case against the detenue did not disrupt the normal life or social order to the extent of threatening public existence or the rule of law.
- The AGP argued against the petition, citing sufficient material indicating the detenue’s recurring engagement in illegal activities.
- The petitioner’s advocate contended that the detention order was based on a single offense under the Gujarat Prohibition Act, which might not meet the criteria under the Act’s definition of illegal activity.
Analysis
- The detaining authority’s order of detention is considered rightful by the court.
- Even if the allegations against the petitioner are assumed to be true, they do not pose a threat to public order.
- Breach of peace or public tranquility may lead to a law and order situation but not disturbance of public order.
- Relevant material must demonstrate that the detenu is a threat to society and causes disturbance to public order.
- The detenue can be proceeded with under the Act’s provisions but does not fit the definition of ‘bootlegger’ as per the PASA Act.
- Distinction between ‘law and order’ and ‘public order’ discussed.
- Explanation on what constitutes public disorder versus disorder.
- Serious and aggravated forms of disorder affecting the community considered as public order.
- Importance of subjective satisfaction by detaining authority before passing detention orders emphasized.
- Cancellation of bail as a lesser drastic remedy not considered before passing detention order.
- Subjective satisfaction deemed vitiated in case of immediate detention after bail without exploring other options.
- Simply registering an FIR does not establish a connection to the breach of public order
- Preventive detention should not be used as a remedy in such cases
- If the detainee poses a significant threat to society, then the prosecution should seek other legal avenues such as cancellation of bail or appeal to a Higher Court
- No substantial evidence exists to invoke the power under section 3(2) of the Act in this case
Decision
- Detenue ordered to be set at liberty forthwith if not required in any other case
- Rule made absolute accordingly
- Direct service permitted
- Present petition allowed
- Impugned order of detention quashed and set aside
Case Title: POONAM SUMAR MAHESHWARI Vs. STATE OF GUJARAT
Case Number: R/SCA/433/2024
