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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, Rajendra M. Sareen, JJ.
Faizan @ Pandit Mohammedhussain Usmanbhai Shaikh Through Mehbubbhai Ismailbhai Mansuri – Petitioner
Versus
The Commissioner Of Police – Respondent
R/Special Civil Application No. 20123 of 2023
Decided On : 11-01-2024
Detention Order - Challenge to detention order under Article 226 of the Constitution of India - 385, 294B, 506(2), 135(1) of IPC, 379A3, 114, 323, 392 of IPC and 135(1) of GP Act - The court found that the offences alleged in the FIRs did not have any bearing on public order as required under the Act. The court also highlighted the distinction between 'law and order' and 'public order' as laid down by the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852]. The court emphasized that the detaining authority should have resorted to cancellation of bail instead of preventive detention. The court also found the subjective satisfaction of the detaining authority relying on secret witnesses to be vitiated and noted the lack of a live link between the offences, ultimately quashing the detention order.
Fact of the Case:
The petitioner filed a petition challenging the detention order passed by the Police Commissioner, Ahmedabad, based on six offences registered against him.
Finding of the Court:
The court found that the offences alleged did not have any bearing on public order as required under the Act. The court also highlighted the distinction between 'law and order' and 'public order' as laid down by the Supreme Court. The court emphasized that the detaining authority should have resorted to cancellation of bail instead of preventive detention. The court also found the subjective satisfaction of the detaining authority relying on secret witnesses to be vitiated and noted the lack of a live link between the offences, ultimately quashing the detention order.
Issues: Challenge to detention order under Article 226 of the Constitution of India, validity of detention based on alleged offences, subjective satisfaction of the detaining authority, reliance on secret witnesses, and lack of live link between the offences.
Ratio Decidendi: The distinction between 'law and order' and 'public order' as laid down by the Supreme Court, the requirement for the detaining authority to resort to cancellation of bail instead of preventive detention, the vitiation of subjective satisfaction relying on secret witnesses, and the lack of a live link between the offences.
Final Decision: The court allowed the petition and quashed the detention order, ordering the detenue 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 for following relief:-
2. Thus, essentially, the challenge is to the order of detention dated 29.08.2023 passed by the Police Commissioner, Ahmedabad, respondent No.1 herein, by which the petitioner has been detained as a “dangerous person” based on six offences registered against him, details of which are as under:-
| Sr. No. | Name of Police Station | CR No. and date | Sections | Date of bail order |
| 1 | Vejalpur Police Station, Ahmedabad | 11191028211366 of 2021 dated 13.08.2021 | 385, 294B, 506(2) of IPC and 135(1) of GP Act | 18.08.2021 |
| 2 | Vejalpur Police Station, Ahmedabad | 11191028221174 of 2022 dated 24.09.2022 | 379A3 and 114 of IPC | 27.09.2022 |
| 3 | Anandnagar Police Station, Ahmedabad | 19100123042 of 2023 dated 21.02.2023 | 379A3, 114 of IPC | 11.05.2023 |
| 4 | Anandnagar Police Station, Ahmedabad | 19100123059 of 2023 dated 21.02.2023 | 379A3, 114 of IPC | 27.03.2023 |
| 5 | Vejalpur Police Station, Ahmedabad | 11191028230183 of 2023 dated 24.09.2022 | 323, 294B, 114 of IPC and 135(1) of GP Act | 15.03.2023 |
| 6 | Sarkhej Police Station, Ahmedabad | 11191048230715 of 2023 dated 11.08.2023 | 392, 114 of IPC and 135(1) of GP Act | 28.08.2023 |
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 the Indian Penal Code 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 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 the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue 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.
3.1 It is submitted that the offences are pertaining bodily injuries and theft against individuals and will therefore not amounting to breach of public order as no where in the grounds of detention, it is coming out that the sporadic act of the petitioner has caused disturbance to public order. In any case, option was always available to the detaining authority to resort to cancellation of bail of the petitioner.
4. As against this, learned AGP submitted that the detaining authority had sufficient material on the record to pass the order of detention, particularly reference to the same is made by the detaining authority in the very order of detention where the detaining authority has referred to the fact that it was the petitioner who had himself confessed to commission of theft. Not only that, there are other supporting evidences al
The court emphasized the requirement for the detaining authority to resort to cancellation of bail instead of preventive detention and highlighted the distinction between 'law and order' and 'public ....
The main legal point established in the judgment is that the subjective satisfaction of the detaining authority must be based on proper consideration and that ordinary law is sufficient to prevent a ....
The main legal point established in the judgment is that the detention order based on the offences registered against the petitioner must have a nexus with the breach of maintenance of public order a....
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] and the requirement for the detaining authority to justify its....
The alleged offenses must have a bearing on public order as required under the Act, and the ordinary law should be considered sufficient to prevent further offenses before resorting to preventive det....
The detention order under the Act requires sufficient material to demonstrate that the person has become a threat and menace to the society, disturbing the whole tempo of the society and putting the ....
Preventive detention can be ordered even on the basis of a solitary incident, provided there is justifiable subjective satisfaction on objective material that the incident is likely to create disturb....
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 detention order must have a live and proximate link between prejudicial activities and the purpose of detention, and delay in passing the detention order can vitiate the detention order.
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