Preventive detention should not be used as a remedy when other penal laws are sufficient, and there must be a nexus between the alleged activity and the breach of maintenance of public order as required under the Act.

JUDGMENT :

A.S. SUPEHIA, J.

1. Draft amendment is allowed in terms of the draft. The same shall be carried out forthwith.

1.1 Heard learned advocates appearing for the respective parties.

2. The present petition is directed against order of detention dated 11.07.2023 passed by the respondent-detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner-detenue as defined under section 2(b) of the Act.

3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of registration of the three FIRs for the offences (i) under Sections 65(A)(E), 81 and 116(b) of the Prohibition Act, (ii) under Sections 65(A)(E), 116(b), 81 and 98(2) of the Prohibition Act and (iii) under Sections 65(A)(E), 81, 83, 116(b) and 98(2) of the Prohibition Act respectively by itself cannot bring the case of the detenue within the purview of definition under section 2(b) 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. 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 (b) 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. 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 (b) 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 the meaning of section 2 (b) of the Act. Except general statements, there is no material on record which shows that the detenu is acting in such a manner, which would become dangerous to the public order.

6. At this juncture, we would like to put reliance upon certain case laws of the Honourable Apex Court, wherein the Honourabl