In a significant ruling by the Gujarat High Court, the order of detention under the PASA Act was quashed, leading to the immediate release of the petitioner-detainee. The Court found that the detaining authority’s subjective satisfaction was vitiated, as the alleged activities did not pose a threat to public order but only to law and order. This case sheds light on the distinction between law and order versus public order issues in preventive detention matters.
Facts
- The petitioner-detenue has filed a petition to quash the order of detention under the PASA Act.
- The order was passed by the Commissioner of Police, Surat City on 09.11.2023.
- The petitioner seeks to be set at liberty by challenging the detention order.
- The order was issued under sub-section (1) of Section 3 of the PASA Act.
Issue
- Whether their Lordships wish to see the fair copy of the judgment?
- Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder?
Arguments
- The detaining authority’s subjective satisfaction was found to be vitiated.
- The detaining authority passed the order of detention based on the alleged illegal activities of the petitioner-detainee.
- The alleged activities of the petitioner would, at most, cause disturbance to law and order, not breach of public order.
- The petitioner was released on bail by the competent court in connection with all the offenses.
- Instead of ordering detention, the authority could have opted for the lesser drastic remedy of canceling bail.
- The petitioner was detained after three FIRs related to theft were registered against him, and was released on bail for the last FIR on 08.11.2023, with the detention order passed the next day on 09.11.2023.
Analysis
- The Preventive Detention Act requires a disturbance that affects public order, not mere law and order issues, for action.
- Subjective satisfaction was not demonstrated by the detaining authority before issuing the detention order.
- The detenue was released on bail for one FIR and immediately detained the next day without exploring the option of canceling bail first.
- Detaining individuals for anti-social activities must be based on ordinary criminal law provisions unless it affects public order.
- The detaining authority failed to prove the alleged anti-social activities of the detenue impact or are likely to impact public order.
- Not every act of assault or injury to specific persons leads to public disorder.
- Mere registration of FIRs related to theft against the detenue does not impact public order.
- The distinction between “law and order” and “public order” has been discussed, with public order involving serious and aggravated forms of disorder directly affecting the community or public interest.
- Subjective satisfaction for invoking power under preventive detention law can be vitiated.
- If the detenue is a menace to society, cancellation of bail or moving an appeal to a higher court is a more appropriate remedy than preventive detention.
- Simplicitor registration of FIRs does not have a nexus with the breach of maintenance of public order, hence the petition succeeds.
Decision
- Order of detention dated 09.11.2023 quashed and set aside
- Detenue ordered to be set at liberty forthwith
- Impugned order of detention found to be vitiated
- Direct service permitted
- Rule made absolute
Case Title: DANISH S/O ASPAK SHAIKH THRO ZENABIBI ASPAK SHAIKH Vs. STATE OF GUJARAT
Case Number: R/SCA/92/2024
