In a significant ruling, the Gujarat High Court has quashed the detention order passed by the Police Commissioner in the case involving the detenu. This decision marks a key development in upholding justice and the rule of law.
Facts
- The petitioner has filed a petition under Article 226 of the Constitution of India seeking relief from the detention order dated 12.2023
- The petitioner is requesting the quashing and setting aside of the detention order issued by the Police Commissioner, Rajkot City
- The petitioner is seeking release from detention and to be set free in the interest of justice
Arguments
- The order of detention dated 12.12.2023 passed by the Police Commissioner, Rajkot, detained the petitioner as a ‘common gaming house keeper’ defined under section 2(bb) of the Act.
- The challenge is primarily to the order of detention, as the solitary offence registered against the detenu does not firmly fall within the purview of the Act’s definition.
- Apart from statements of witnesses, FIR registration, and Panchnama drawn during the investigation, no substantial evidence links the detenu’s alleged anti-social activity to a breach of public order.
- The detenu’s advocate argues that the order of detention should be quashed due to the registration of offences under Sections 4 and 5 of the Gujarat Prevention of Gambling Act, 1887.
- Learned AGP for the respondent State supported the detention order passed by the authority.
- Sufficient material and evidence found during investigation indicate detenu’s habit of engaging in activities defined under section 2(bb) of the Act.
- Detaining authority considered the facts of the case and passed the detention order.
- Subjective satisfaction of the detaining authority deemed to be not legal or valid as the alleged offenses in the FIRs do not impact public order as required by the Act.
- Other relevant penal laws are sufficient to address the situation.
- Allegations against the detenu are not relevant to bring him within the scope of section 2(bb) of the Act.
- Material must show the person poses a threat and menace to society, disrupting the social order and public peace, to be considered a person under section 2(bb) of the Act.
Analysis
- The specific part of the judgement (STA) is not relevant to the maintenance of public order.
- It is considered a breach of law and order at most.
- The contents of the STA do not have any nexus with the maintenance of public order.
- The State is advised to seek alternative remedies rather than preventive detention if the individual is not a serious threat to society.
- There should be a clear distinction between serious public order offenses and minor breaches of peace affecting specific individuals.
- Referring to the case of Pushker Mukherjee v/s. State of West Bengal, the Supreme Court highlighted the difference between ‘law and order’ and ‘public order’.
- In the case of solitary offenses like the Prevention of Gambling Act, individuals should not be labeled as serious offenders like ‘common gaming house keeper’ or bootlegger.
- The Supreme Court, in the case of Shaik Nazeen v/s. State of Telangana, emphasized that every act of assault does not constitute public disorder and should be dealt with under ordinary criminal law.
- For an act to affect public order, it must impact the community or the public at large.
- The Preventive Detention Act requires more than just a disturbance of law and order for action to be taken.
- The Act is applicable when a disturbance significantly affects public order.
- The petitioner had only one offence registered against him on 29.11.2023.
- The petitioner was arrested and granted bail on the same day.
- This is a case of solitary offence.
- No statements of secrete witnesses are on record to bring the detenu within the definition of Section 2(bb) of the Act.
- The simplicitor registration of FIR/s does not have any nexus with the breach of maintenance of public order.
- No relevant and cogent material exists for invoking power under section 3(2) of the Act.
Decision
- The detenue is ordered to be set at liberty forthwith if not required in any other case.
- The present petition is allowed.
- The impugned order of detention dated 12.12.2023 is quashed and set aside.
- The Rule is made absolute accordingly.
Case Title: MOSIN MAHAMMADHUSEN PATHAN THROUGH MAHAMMADHUSEN AJIMKHAN PATHAN Vs. STATE OF GUJARAT
Case Number: R/SCA/577/2024
