The distinction between 'law and order' and 'public order' as laid down in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] was central to the court's decision.

JUDGMENT :

(A.Y. Kogje, J.)

1. This petition is filed under Article 226 of the Constitution of India for the following relief:

“(a) This Hon’ble Court may be pleased to issue a writ of certiorari or any other appropriate writ, order and/or directions quashing and setting aside the detention order dated 05.09.2023 passed by respondent no.1 (Annexure-A to this petition) and further be pleased to direct the respondents to release the petitioner detenue from the detention forthwith.

(b) Any other and further relief/s may kindly be granted in the interest of justice.”

2. The challenge is to the order of detention dated 05.09.2023 passed by the respondent – detaining authority viz. the Commissioner of Police, Vadodara City, 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.

3. Learned advocate for the detenue submits that the grounds of detention would indicate that detaining authority has relied upon two offences of IPC, however, none of the offences would indicate that the action of the petitioner were causing any breach of public order and therefore, subjective satisfaction of the detaining authority hold that action of the petitioner is in breach of public order is vitiated.

4. Learned advocate for the petitioner submits that petitioner has been enlarged on regular bail by the Court of competent jurisdiction and therefore, the detaining authority had an alternative remedy to resort to ordinary law of cancellation of bail, however, instead of resorting to lesser drastic remedy, the order of detention has been passed.

5. Lastly, learned advocate for the petitioner submitted that the subjective satisfaction of the detaining authority will stand vitiated as immediately upon release of the petitioner on 04.09.2023, the detention order has been passed on 05.09.2023 and that there is no statement of secret witness recorded to justify the petitioner indulging in any activity damaging the public order.

6. Learned AGP has objected to grant of the petition by submitting that the petitioner has been arraigned as an accused in two cases covered under chapters 16 and 17 of the IPC, thereby falling within the definition of ‘Dangerous Person’. Learned AGP further submits that the detaining authority has taken into consideration the aspect of delay and has recorded in the detention order that as the petitioner has already been enlarged on regular bail and the procedure of cancellation of bail would consume more time, hence, the detaining authority deemed it fit to pass the order of detention.

7. Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(c) 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.

8. In rejoinder, learned advocate for the petitioner submits that FIRs registered against the petitioner and relied upon by the detaining authority are grossly delayed.

9. Having heard learned advocates for the parties and considering the facts and circumstances of the case and perused the documents on record, the detention order is passed on 05.09.2023, wherein the grounds of detention would indicate that the detaining authority has relied upon two FIRs registered with J.P. Road Police Station, Vadodara. The details of which in tabular form are as under: