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2024 Supreme(Guj) 1887
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ilesh J. Vora, S.V. Pinto, JJ.
Abhishek S/o Kanhiyalal @ Kanaiyalal Yadav Thro Kanhiyalal Rambachan Yadav - Appellant
Vs.
State Of Gujarat & Ors. - Respondent
Special Criminal Application No. 15685 of 2024
Decided On : 04-12-2024
Advocate Appeared:
For the Appellant : K T Beladiya
For the Respondent: Mr. L.B. Dabhi, APP
IMPORTANT POINT
Preventive detention requires a clear nexus to public order; mere disturbances of law and order do not justify detention under the Gujarat Prevention of Antisocial Activities Act.
Headnote:
(A) Gujarat Prevention of Antisocial Activities Act, 1985 - Section 2(ba) - Preventive detention - Challenge to detention order as a '˜Cyber Offender' - Grounds of detention lacking nexus to public order - Activities deemed prejudicial to law and order, not public order - Apex Court ruling in Piyush Kantilal Mehta case referenced. (Paras 5, 10, 18)
(B) Preventive detention - Distinction between '˜law and order' and '˜public order' established - Mere disturbance of law and order insufficient for detention under the Act. (Paras 17, 18)
Facts of the case:
The petitioner was detained as a '˜Cyber Offender' under the Act of 1985, with allegations of activities affecting public order. The petitioner challenged the legality of the detention order.
Findings of Court:
The court found insufficient material to substantiate that the petitioner's activities adversely affected public order.
Issues: The main issue was whether the detention order was sustainable in law considering the nature of the alleged offences.
Ratio Decidendi: The court held that the detaining authority failed to demonstrate that the petitioner's actions were prejudicial to public order.
Result: The detention order was quashed, and the petitioner was directed to be released.
JUDGMENT :
S.V. PINTO, J.
1. Rule returnable forthwith. Learned APP waives service of notice for and on behalf of respondent State.
2. The petitioner herein namely Abhishek S/O Kanhiyalal @ Kanaiyalal Yadav came to be preventively detained vide the detention order dated 22.11.2024 passed by the Police Commissioner, Surat, as a “Cyber Offender” as defined under Section 2(ba) of the Gujarat Prevention of Antisocial Activities Act, 1985 (herein after referred as ‘the Act of 1985).
3. By way of this petition, the petitioner has challenged the legality and validity of the aforesaid order.
4. This Court has heard learned counsel Mr. K.T. Beladiya for the applicant and Mr. L.B. Dabhi, learned APP for the State.
5. Learned advocate for the detenue submits that the grounds of detention has no nexus to the “public order”, but is a purely a matter of law and order, as registration of the offence cannot be said to have either affected adversely or likely to affect adverse the maintenance of public order as contemplated under the explanation subsection (4) of Section 3 of the Act, 1985 and therefore, where the offences alleged to have been committed by the detunue have no bearing on the question of maintenance of public order and his activities could be said to be a prejudicial only to the maintenance of law and order and not prejudicial to the maintenance of public order.
6. On the other hand, learned State Counsel opposing the application contended that, the detenue is habitual offender and his activities affected at the society at large. In such set of circumstances, the Detaining Authority, considering the antecedents and past activities of the detenue, has passed the impugned order with a view to preventing him from acting in any manner prejudicial to the maintenance of public order in the area of Surat.
7. Having considered the facts as well as the submissions made by the respective parties, the issue arises as to whether the order of detention passed by the Detaining Authority in exercise of his powers under the provisions of the Act of 1985 is sustainable in law?
8. The order impugned was executed upon the applicant and presently he is in Jail. In the grounds of detention, a reference of one criminal case registered against the applicant for the offence punishable under Sections 308(2), 319(2), 318(4) and 61 of BNS and Section 66(D) of Information Technology Act dated 23.10.2024 registered with Althan Police Station was made and further it is alleged that, the activities of the detenue as a “cyber offender” affects adversely or are likely to affect adversely the maintenance of public order as explained under Section 3 of the Act of 1985. Admittedly, in all the said offences, the applicant was granted bail.
9. The term ‘Cyber Offender’ defined under Section 2(ba) reads as under:
"cyber offender” means a person who commits or attempts to commit or abets the commission of offence punishable under Chapter XI of the Information Technology Act, 2000;
10. After careful consideration of the material, we are of the considered view that, there is no material placed before the authority to establish that the applicant was convicted of offences under Sections 66(C) and 66(D) of The Information Technology Act who commits or attempts to commit or abets the commission of offence punishable under Chapter XI of the Information Technology Act, 2000. After careful consideration of the material, we are of the considered view that on the basis of said criminal cases, the authority has wrongly arrived at the subjective satisfaction that the activities of the detenue could be termed to be acting in a manner ‘prejudicial to the maintenance of public order’. In our opinion, the said offences do not have any bearing on the maintenance of public order. In this connection, we may refer to the decision of the Apex Court in the case of Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad, 1989 Supp (1) SCC 322, wherein, the detention order was made on the basis of
