Preventive detention requires a clear demonstration that the detainee's activities adversely affect public order, not merely law and order.

ORDER :

ILESH J. VORA, J.

1. The petitioner herein namely Punabhai Bhanabhai Bharvad came to be preventively detained vide the detention order dated 16.03.2024 passed by the District Magistate, Bhuj-Kutch, 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 Mr.Rakesh Sharma, learned counsel for the petitioner and Mr.Krutik Parikh, learned APP for the respondent-State.

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 Kutch.

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 six criminal cases i.e. (I) for the offences punishable under Sections 65AE, 116(B), 98(2), 81 of the Prohibition Act, (II) for the offences punishable under Sections 65AE, 116(B), 98(2), 81, 83 of the Prohibition Act, (III) for the offences punishable under Section 65AA of the Prohibition Act, (IV) for the offences punishable under Sections 65AE and 116(B) of the Prohibition Act, (V) for the offences punishable under Sections 65AE, 116(B) and 98(2) of the Prohibition Act and (V) for the offences punishable under Sections 65AE, 116(B) and 81 of the Prohibition Act, 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 applicant was granted bail.

8. After careful consideration of the material, we are of the considered view that on the basis of six 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,