IMPORTANT POINT
The detention order must be based on a genuine threat to public order and supported by contemporaneous material. Delay in passing the detention order and lack of contemporaneous material can vitiate the subjective satisfaction of the detaining authority.

JUDGMENT :

A.Y. KOGJE, J.

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

“B) That this Hon’ble Court may be pleased to allow this present Special Civil Application by issuing appropriate writ of habeas corpus or any other appropriate writ, order or direction quashing and setting aside the impugned of detention dated 04.11.2023 passed by respondent no.2; Anx-A @ B.”

2. Thus, essentially, the challenge is to the order of detention dated 04.11.2023 passed by the District Magistrate, Sabarkantha-Himmatnagar, respondent No.2 herein, by which the petitioner has been detained as a “bootlegger” as defined under section 2(b) of the Act based on two offences registered against him, details of which are as under:-

3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside as registration of the offences under Sections of 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 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.

3.1 It is submitted that there is delay of more than one and half months in passing the detention order after the petitioner was enlarged on regular bail in the second offence on 14.09.2023.

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 having perused documents on record, it appears 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 as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the 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 and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within