Preventive detention under the Gujarat Prevention of Anti-social Activities Act requires that the detainee's activities must adversely affect public order, not merely law and order.

JUDGMENT :

ILESH J. VORA, J.

1. The petitioner herein namely Rakeshbhai @ Kashinath s/o. Rameshbhai @ Surendra Shau came to be preventively detained vide the detention order dated 04.01.2025 assed by the Police Commissioner, Surat, as a bootlegger as defined under Section 2(b) 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. G. P. Baghel and Ms. Vrunda Shah, 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 of 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 65(A)(A) dated 07.07.2024 with Sachin Police Station, (ii) for the offence under Sections 65(A) (E), 98(2), 81, 116(B) dated 10.12.2024 with Sachin Police Station, registered against the petitioner under the Prohibition Law was made and further it is alleged that, the activities of the detenue as a “bootlegger” 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 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 prohibition 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 two 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. Ramaswami, J. speaking for the Court observed as follows:

10. "Does the expression 'public order'