The detention order can be challenged on the grounds of delay in passing the order, lack of material connecting alleged anti-social activity with breach of public order, and the availability of alternative remedies under ordinary law.

JUDGMENT :

A.Y. KOGJE, J.

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

“(A) Your Lordship may be pleased to pass any appropriate writ and/or writ of mandamus and/or writ of habeas corpus be issued and the order of detention dated 5.9.2023 passed by the respondent no. 2 herein at Annexure-A may be set aside and the respondents be directed to set the detenu at liberty forthwith.”

2. Thus, essentially, the challenge is to the order of detention dated 05.09.2023 passed by the District Magistrate, Bhavnagar, respondent No. 2 herein, by which the petitioner has been detained as a “bootlegger” based on solitary offence registered against him.

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 solitary offence under the Prohibition Act by itself cannot bring the case of the detenue within the purview of definition under section 2(b) 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. 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.

3.1 Learned advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to solitary criminal case had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large.

4. 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(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 facts and circumstances of the case, it appears that the grounds of detention indicate registration of one FIR, the details of which are as under:

6. Thus, from the above details, it appears that at here is delay of more than one and half months in passing the order of detention as the petitioner was enlarged on 22.07.2023 and the order of detention came to be passed on 05.09.2023. The Apex Court in the case of Sushanta Kumar Banik vs. State of Tripura, AIR 2022 SC 4715 has observed as under:

“11. We are persuaded to allow this appeal on the following two grounds:

(i) Delay in passing the order of detention from the date of proposal thereby snapping the “live and proximate link” between the prejudicial activities and the purpose of detention and failure on the part of the detaining authority in explaining such delay in any manner.

(ii) The detaining authority remained oblivious of the fact that in both the criminal cases relied upon by the detaining authority for the purpose of passing the order of detention, the appellant detenu was ordered to be released on bail by the special court. The detaining authority remained oblivious as this material and vital fact of the appellant detenu being released on bail in both the cases was suppressed o