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2025 Supreme(GUJ) 78
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK, JJ
SHIBARAM @ SHIBA S/O BABURAJ @ BABU BHUYAN (BHUIYA) THROUGH SHANKAR BABU BHUYAN – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 172 of 2025
Preventive detention requires that the activities of the individual must affect public order, not merely law and order, to justify detention under the Act.
Headnote:
(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(c) and Section 3 - Preventive detention - Legality of detention order challenged - Court found that the alleged activities of the petitioner did not affect public order, merely constituting law and order issues - Reference made to Supreme Court decisions clarifying the distinction between law and order and public order - Detention order quashed. (Paras 6, 8, 9)
(B) Preventive Detention - The court emphasized that mere disturbance of law and order is insufficient for preventive detention under the Act; it must affect the community at large. (Paras 17, 18)
Facts of the case:
The petitioner was detained as a 'dangerous person' under the Act based on two criminal cases. The petitioner argued that the grounds for detention did not affect public order.
Findings of Court:
The court concluded that the activities of the petitioner did not substantiate a threat to public order, thus quashing the detention order.
Issues: The main issue was whether the detention order was sustainable under the Act based on the alleged activities of the petitioner.
Ratio Decidendi: The court ruled that the distinction between law and order and public order must be maintained, and the activities must affect the community to justify preventive detention.
Result: Petition allowed; detention order quashed.
JUDGMENT :
ILESH J. VORA, J.
1. The petitioner herein namely Shibaram @ Shiba s/o. Baburaj @ babu Bhuyan (Bhuiya), came to be preventively detained vide the detention order dated 21.12.2024 passed by the Police Commissioner, Surat, as a “dangerous person” as defined under Section 2(c) of the Gujarat Prevention of Anti-social Activities Act, 1985 (herein after referred as ‘the Act of 1985).
2. By way of this petition, the petitioner has challenged the legality and validity of the aforesaid order.
3. This Court has heard learned counsel Mr. A. B. Chauhan and Ms. Krina Calla, learned Additional Public Prosecutor for the respective parties.
4. 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 sub-section (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.
5. 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.
6. Having considered the facts as well as the submissions made by the respective parties, the issue arise 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?
7. The order impugned was executed upon the petitioner and presently he is in Jail. In the grounds of detention, a reference of two criminal cases i.e. (i) for the offence under Sections 115(2), 118(1), 352, 308(3), 54 and Section 135 of G. P. Act, dated 16.12.2024 with Pandesara Police Station, (ii) for the offence under Sections 115(2), 352, 351(3), 54 and Section 135(1) of G. P. Act dated 16.12.2024 with Pandesara Police Station, registered against the petitioner under the BNS was made and further it is alleged that, the activities of the detenue as a “dangerous person” 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 petitioner was granted bail.
8. After careful consideration of the material, we are of the considered view that on the basis of two 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 the registration of the two prohibition offences. The Apex Court after referring the case of Pushkar Mukherjee Vs. State of Bengal, 1969 (1) SCC 10 held and observed that mere disturbance of law and order leading to detention order is thus not necessarily sufficient for action under preventive detention Act. Paras-17 & 18 are relevant to refer, which read thus:
“17. In this connection, we may refer to a decision of this Court in Pushkar Mukherjee v. State of West Bengal, where the distinction between 'law and order' and 'public order' has been clearly laid down. Ramaswa
