Preventive detention should not be used as a remedy when other legal measures are available, and there must be a clear nexus between the alleged activities and the breach of public order as required under the Act.

JUDGMENT :

D.A. Joshi, J.

1. Heard learned advocates appearing for the respective parties.

2. The present petition is directed against order of detention dated 18.01.2023 passed by the respondent– detaining authority in exercise of powers conferred under section 3 (1) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner – detenu as defined under section 2 (g-a) of the Act.

3. Mr. Hemant Makwana, learned advocate for the detenu submitted that the impugned order of detention of the detenu requires to be quashed and set aside, because registration of an FIR for the offences under Sections 384, 387, 294(b), 506(2) of the Indian Penal Code and Sections 40 and 42 of the Gujarat Moneylenders’ Act respectively by itself cannot bring the case of the detenu within the purview of definition under section 2 (g-a) of the Act. Learned advocate for the petitioner further submitted that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order. Further, except statement of witnesses, registration of above FIR/s, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenu would not fall under the category of breach of public order. Learned advocate further submitted that it is not possible to hold, on the basis of the facts of the present case, that activity of the detenu with respect to the criminal cases had affected and disturbed the social fabric of society, eventually which would become threat to the very existence of normal and routine life of people at large or that on the basis of registration of criminal cases, the detenu had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order.

4. Mr. Aditya Jadeja, learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidences were found during the course of investigation, which was also supplied to the detenu indicate that detenu is in habit of indulging into the activity as defined under section 2 (g-a) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

5. The State has chosen not to file counter affidavit/reply so as to disturb the action invoking provisions of the PASA Act. There is no need to say that when a citizen is deprived of his personal liberty by keeping him behind bars under the provisions of the PASA law without trial by the competent court, the detaining authority is required under the law to justify its action and in absence of reply/counter affidavit, the averments made in the petition remain unchallenged and uncontroverted.

6. Having heard learned advocates for the parties and considering the documents and material available on record of the case, prima facie, it is found that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the realm of meaning of section 2 (g-a) of the Act. Unless and until, the material is there to make out a case that the person has become a threat & menace to the Society so as to disturb the whole tempo of the society and that all social apparatus goes in peril disturbing public order at the instance of such person, in that circumstances, it cannot be said that the detenu is a person which would fall within