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2025 Supreme(Online)(GUJ) 1224
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK, JJ
MAHENDRA@MENSHA SURESHJI PRAJAPATI THROUGH VIKASH SURESH PRAJAPATI – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 1337 of 2025
Preventive detention requires a clear demonstration that activities adversely affect public order, not merely law and order.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(b) and Section 3(4) - Preventive detention - The petitioner challenged the detention order as a bootlegger, arguing that his activities did not affect public order but merely law and order - The court found that the alleged activities did not substantiate a threat to public order as defined under the Act. (Paras 4, 8, 9)
(B) Preventive Detention - The distinction between law and order and public order is critical; mere disturbances of law and order do not justify preventive detention under the Act. (Paras 8)
Facts of the case:
The petitioner was detained under the Act as a bootlegger, with allegations of two criminal cases against him. The petitioner argued that his activities did not affect public order.
Findings of Court:
The court held that the detention order was not sustainable as the activities did not adversely affect public order.
Issues: Whether the detention order was justified under the Act based on the alleged activities of the petitioner.
Ratio Decidendi: The court ruled that the detaining authority failed to demonstrate that the petitioner's activities affected public order, emphasizing the need for a clear distinction between law and order and public order.
Result: Petition allowed; detention order quashed.
| Table of Content |
|---|
| 1. detention order issued (Para 1) |
| 2. challenge to detention order (Para 2 , 3) |
| 3. grounds of detention (Para 4) |
| 4. state's opposition (Para 5) |
| 5. sustainability of detention order (Para 6) |
| 6. criminal cases referenced (Para 7) |
| 7. failure to substantiate public order (Para 8 , 9) |
| 8. petition allowed (Para 10) |
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The petitioner herein namely Mahendra @ Mensha Sureshji Prajapati came to be preventively detained vide the detention order dated 14.01.2025 passed by the Police Commissioner, Ahmedabad, 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. M.H. Shekhawat and Ms. Dhwani Tripathi, learned Additional Public Prosecutor 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 adversely 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 Ahmedabad.
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 registered against the petitioner i.e. (i) for the offence punishable under Sections 65(a)(e), 81, 98(2), 116(b), 83 of the Prohibition Act and Sections 336(2)(3), 340(2) of the Bharatiya Nyaya Sanhita, 2023 dated 15.10.2024 registered with Anandnagar Police Station and (ii) for the offence punishable under Sections 65(a) (e), 81, 98(2), 116(b), 83 of the Prohibition Act and Sections 336(2)(3), 340(2), 54 of the Bharatiya Nyaya Sanhita, 2023 dated 18.10.2024 registered with Vijapur Police Station 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 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 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 ref
