IMPORTANT POINT
The court emphasized the requirement for a meaningful exercise and subjective satisfaction of the detaining authority, highlighting the distinction between 'law and order' and 'public order' as established in previous court decisions.

JUDGMENT :

SAMIR J. DAVE, J.

1. Heard learned advocates appearing for the respective parties.

2. The present petition is directed against order of detention dated 28.09.2023 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.

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 two offences under Sections 379 and 114 of the 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 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.

4. Learned Advocate has thereafter submitted that if the last offence registered against the petitioner is considered, then from the date of his release, period of 1 month has passed after detention order is passed and hence, the delay is fatal to the detention order.

5. Learned advocate has raised the other grounds for quashment of detention order, but in view of a decision of the Supreme Court in Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852], even though the one ground is fake and the other grounds are not fake, the detention order has to be stroked out as not passed in accordance with law.

6. 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.

7. The date on which the petitioner was lastly released on regular bail was 21.08.2023 and it is after a period of 1 month i.e. on 28.09.2023, the order of detention came to be passed against the petitioner and therefore, there is delay of 1 month in passing the order of detention. Such delay is neither explained by the detaining authority in its order nor by any substantive affidavit and therefore, in the opinion of the Court, the delay would be fetal to the detention of the petitioner.

8. The Apex Court in the case of Kalidas C. Kahar Vs. State of Gujarat and Ors., reported in 1989 Supple. II SCC 155, has held that the detaining authority has to undertake a meaningful exercise and apply the mind to the documents placed alongwith the sponsoring proposal and then come to the conclusion by subjectively satisfying itself. Looking to objectively to the documents on record and conclude that the detention is the only option available to the petitioner, this exercise is not evident from either from the grounds of detention, the documents accompanying