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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. KOGJE, RAJENDRA M. SAREEN, JJ.
Rakeshkumar Nathulal Damor Throguh Nathulal Kanji Damor (Meena) – Appellant
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 14521 of 2023
Decided on : 16-10-2023
| Table of Content |
|---|
| 1. challenge to detention order based on firs. (Para 1 , 2) |
| 2. arguments against detention's legality. (Para 3 , 4) |
| 3. court's observations on public order rationale. (Para 5 , 6 , 8) |
| 4. legal principles related to delay in detention (Para 7) |
| 5. delay in issuing detention order impacts legality. (Para 9) |
| 6. order quashing detention and setting detainee free. (Para 10 , 11 , 12) |
JUDGMENT :
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. This petition under Article 226 of the Constitution of India is filed for following relief:-
2. Essentially, the challenge is to the order of detention dated 28.07.2023 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 four offences registered against him, details of which are as under:-
| Sr. No | Name of Police Station | CR No. and date | Sections |
| 1 | Vijaynagar Police Station, Sabarkantha | PART-C-11209055220569 of 2022 dated 04.11.2022 | 65(A)(E), 81 of the PROHIBITION ACT |
| 2 | Himmatnagar Rural Police Station, | PART-C-11209017220947 of 2022 dated 16.11.2022 | 65(A)(E), 81 and 83 of the PROHIBITION ACT |
| 3 | Jadar Police Station, Sabarkantha | PART-C-11209024220713 of 2022 dated 29.09.2022 | 65(A)(E) of the PROHIBITION ACT |
| 4 | Himmatnagar Rural Police Station, | PART-C-11209017220472 of 2022 dated 06.05.2022 | 65(A)(E), 116B, 81, 83 and 98(2) of the PROHIBITION 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 offences under Sections 65(A)(E), 98(2), 81, 83 and 116B 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.
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. The State has chosen not to file counter affidavit/reply so as to justify the action invoking provisions of the PASA Act.
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,
Preventive detention requires clear evidence linking detainee's actions to a threat to public order; mere registration of FIRs is insufficient for lawful detention.
The detention order must have a nexus with the maintenance of public order, and unreasonable delay in passing the order after the petitioner was granted bail can vitiate the detention order.
The delay in passing the order of detention and the sufficiency of the grounds of detention are crucial factors in determining the validity of a detention order.
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.
The detention order must be in accordance with the law and based on a genuine threat to public order. The failure to consider alternative measures, such as cancelling bail, and the delay in passing t....
The contravention of any law must affect the community or the public at large to be considered a breach of public order, and the detaining authority must promptly consider alternatives such as cancel....
The main legal point established in the judgment is that the detention order under the Gujarat Prevention of Anti-Social Activities Act, 1985 must be in accordance with the requirement of public orde....
The court emphasized that relying on stale offences to arrive at subjective satisfaction for preventive detention is impermissible and that seeking shelter under preventive detention law is not the p....
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