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2024 Supreme(Online)(GUJ) 15969
HIGH COURT OF GUJARAT
ILESH J. VORA, VIMAL K. VYAS, JJ
ABRAR AZIMAHMED SHAIKH THRO RIZWANAHMED AZIMAHMED SHAIKH – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 11273 of 2024
Preventive detention requires a clear nexus between alleged activities and public order; mere law and order disturbances are insufficient for detention under the Act.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(c) and Section 3 - Preventive detention - The petitioner challenged the detention order as a 'dangerous person' under the Act, arguing that the alleged offences did not affect public order but merely law and order. The court found that the detaining authority failed to demonstrate that the petitioner's activities adversely affected public order, referencing the distinction between law and order and public order as established in prior case law. (Paras 4, 8, 9)
(B) Preventive Detention - The court emphasized that mere disturbances of law and order do not justify preventive detention unless they affect the community at large, reiterating the necessity for a clear connection between the alleged activities and public order. (Paras 8, 18)
Facts of the case:
The petitioner was detained based on three criminal cases involving theft, with the authority claiming his activities were prejudicial to public order. However, the petitioner was granted bail in all cases. (Paras 1, 7)
Findings of Court:
The court concluded that the detention order was not sustainable as the activities did not affect public order, quashing the order and directing the petitioner's release. (Paras 9, 10)
Issues: The main issue was whether the detention order was justified under the Act, considering the nature of the alleged offences and their impact on public order. (Paras 6, 8)
Ratio Decidendi: The court ruled that the detaining authority's subjective satisfaction was not legally valid as the alleged activities did not demonstrate a threat to public order, aligning with the legal standards set in previous judgments. (Paras 8, 9)
Result: Petition allowed; detention order quashed.
| Table of Content |
|---|
| 1. detention order issued (Para 1 , 2 , 3 , 5) |
| 2. grounds of detention challenged (Para 4) |
| 3. issue of sustainability of order (Para 6) |
| 4. reference to criminal cases (Para 7 , 8) |
| 5. activities do not affect public order (Para 9) |
| 6. petition allowed and order quashed (Para 10) |
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. The petitioner herein namely Abrar Azimahmed Shaikh came to be preventively detained vide the detention order dated 09.04.2024 passed by the Police Commissioner, Ahmedabad, 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. I. M. Pathan and Ms. Jirga Jhaveri, 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 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 three criminal cases i.e. (i) for the offence under Section 379 dated 05.10.2023 with Sarkhej Police Station, (ii) for the offence under Sections 379, 114 dated 22.02.2024 with Sarkhen Police Station, (iii) for the offence under Sections 379, 114 dated 22.02.2024 with Sarkhej Police station, registered against the petitioner under the Indian Penal Code (old) 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 three 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 sufÏcient for act
