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2025 Supreme(Online)(GUJ) 1213
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK, JJ
FAIZAN @ PANDIT MOHAMMADHUSAIN SHAIKH THRO VAHIDABEN MOHAMMADHUSAIN SHAIKH – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 1565 of 2025
Preventive detention requires a clear demonstration that the individual's activities adversely affect public order, not merely law and order.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(c) and Section 3(4) - Preventive detention - The petitioner was detained as a 'dangerous person' under the Act - The court found that the alleged activities did not affect public order, only law and order - The subjective satisfaction of the detaining authority was deemed insufficient to justify detention. (Paras 1, 4, 8, 9)
(B) Public Order vs. Law and Order - The distinction between public order and law and order is critical; mere disturbances of law and order do not justify preventive detention under the Act. (Paras 8, 18)
Facts of the case:
The petitioner challenged a detention order claiming it was based on two criminal cases that did not affect public order, as he was granted bail in both cases. (Paras 2, 7)
Findings of Court:
The court concluded that the detaining authority failed to demonstrate that the petitioner's activities adversely affected public order, thus quashing the detention order. (Paras 8, 9)
Issues: Whether the detention order was sustainable under the Act given the nature of the alleged offences. (Para 6)
Ratio Decidendi: The court ruled that the activities of the petitioner did not meet the threshold for affecting public order, emphasizing the need for a clear distinction between law and order and public order. (Paras 8, 18)
Result: Petition allowed; detention order quashed.
| Table of Content |
|---|
| 1. detention order challenged (Para 1 , 2 , 3) |
| 2. grounds of detention (Para 4) |
| 3. state's opposition (Para 5 , 8) |
| 4. sustainability of detention (Para 6) |
| 5. criminal cases referenced (Para 7) |
| 6. insufficient grounds for detention (Para 9) |
| 7. petition allowed (Para 10) |
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. The petitioner herein came to be preventively detained vide the detention order dated 28.11.2024 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. Kadri and Ms. Monali H. Bhatt, 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 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 applicant and presently he is in Jail. In the grounds of detention, a reference of two criminal cases registered against the applicant i.e. (1) for the offence punishable under Sections 379(A)(3), 114 etc. of IPC dated 27.06.2024 registered with Maninagar Police Station and (2) for the offence punishable under Sections 303(2), 54 etc. of BNS dated 15.08.2024 registered with Elisbridge Police Station 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 applicant 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
