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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, MAUNA M. BHATT, JJ.
Sanjit @ Sandip S/o Chagur @ Sangubhai Gautam – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 14261 of 2023
Decided on : 05-09-2023
Detention Order - Challenge to detention order under Article 226 of the Constitution of India - Gujarat Prevention of Anti Social Activities Act, 1985 - [IPC, 1860, Section 379, 411] - The court discussed the nature of the offences, the live link between the two offences, and the subjective satisfaction of the detaining authority. The court emphasized the distinction between 'law and order' and 'public order' and highlighted the lack of material connecting the detenue's actions to public order disturbance. The court also referred to relevant Supreme Court decisions to support its findings.
Fact of the Case:
The petitioner challenged the detention order dated 01.06.2023, which was based on two offences registered under the Indian Penal Code, 1860.
Finding of the Court:
The court found that the detention order was not legally valid as the offences did not have a nexus with the breach of public order, and there was insufficient material to invoke the power under section 3(2) of the Act.
Issues: The issues revolved around the nature of the offences, the live link between the two offences, and the subjective satisfaction of the detaining authority.
Ratio Decidendi: The court emphasized the distinction between 'law and order' and 'public order' and highlighted the lack of material connecting the detenue's actions to public order disturbance. The court also referred to relevant Supreme Court decisions to support its findings.
Final Decision: The petition was allowed, and the impugned detention order was quashed and set aside. The detenue was ordered to be set at liberty forthwith if not required in any other case.
JUDGMENT :
A.Y. KOGJE, J.
1. This petition under Article 226 of the Constitution of India is filed inter- alia for following relief:
(B) BE PLEASED to issue appropriate writ, order or direction for quashing and setting aside the detention order dtd 01.06.2023 at annexure A passed by the Police Commissioner, Surat City, vide PCB/PASA/DTN/435/2023, passed by the Police Commissioner, Surat i.e. the respondent No.2 heren and further be pleased to direct the respondent to release the petitioner from detention forthwith and set at free, in the interest of justice.”
2. Essentially the challenge is to the order of detention dated 01.06.2023 for which the petitioner has been detained as “dangerous person” on the basis of two offences registered against the petitioner in Surat City.
3. The present petition is directed against order of detention dated 01.06.2023 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(c) of the Act.
4. Learned advocate for the petitioner submits that the two offences in which the petitioner is arraigned as an accused cannot be stated to be offence which can constitute ground for detention particularly, where the first offence registered at Dindoli Police Station dated 16.08.2022, the offence pertains to theft of laptop and mobile of which, there is no recovery or discovery either the mobile or any cash amount from the petitioner in this regard. It is only on the basis of the statement of co-accused that the petitioner has been arraigned as accused in this offence. It is submitted that there is no identification also to connect the petitioner with this offence.
4.1 It is submitted that in so far as the second offence is concerned, the offence pertains to mobile theft, during the investigation of which two mobiles shown to be recovered from the petitioner. It is submitted that the petitioner was apprehended first in the FIR registered with Puna Police Station and thereafter though the petitioner has no connection with the offence with Dindoli Police Station, the petitioner has been arraigned without any offence. Learned advocate submitted that in view of the decision of the Hon’ble Apex Court in case of Syed Sabeena Vs. State of Telangana, reported in AIR Online 2022 SC 457, the offences of theft though registered against the petitioner cannot be treated to be of such nature which would disturb the public order and therefore the attention is drawn to Para 15 of the aforesaid judgment
4.2 Learned advocate also submitted that considering the time gap between the offence registered first at Dindoli Police Station and the second offence registered at Puna Police Station, there is no live link between the two offences and therefore the petitioner cannot be treated to be a habitual offender, which is the requirement of provisions before declaring the petitioner as a dangerous person.
4.3 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 offences under IPC by itself cannot bring the case of the detenue within the purview of definition under section 2(c) of the Act. Further, learned advocate for the detenue submits 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 and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. Learned advocate for the petitioner further submits
The judgment established the principle that simplicitor registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order, and the authority cannot have recourse und....
The main legal point established in the judgment is that the contravention of any law must affect the community or the public at large to constitute a breach of public order under the Gujarat Prevent....
The main legal point established in the judgment is the requirement for a 'live and proximate link' between the prejudicial activities and the purpose of detention in preventive detention cases.
The detention order must be in accordance with the law and based on a genuine threat to public order. The failure to consider alternative measures, such as cancelling bail, and the delay in passing t....
The detention order must have a bearing on 'public order' as required under the Act, and the detaining authority should consider cancellation of bail as an alternative remedy. Additionally, there sho....
The main legal point established in the judgment is that the detention order under the Gujarat Prevention of Anti-Social Activities Act, 1985 must be in accordance with the requirement of public orde....
The judgment established that preventive detention should be based on a genuine threat to public order, and alternative measures should be considered before resorting to preventive detention.
Unreasonable and unexplained delay in passing the order of detention vitiates the detention order, and the right to make representation is a fundamental right of the detenu under Article 22(5) of the....
The main legal point established is the requirement of a live and proximate link between the prejudicial activities and the purpose of detention, and the need for prompt action in passing the detenti....
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