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2025 Supreme(Online)(GUJ) 1228
HIGH COURT OF GUJARAT
HONOURABLE MR. JUSTICE ILESH J. VORA, HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK, JJ
SANJAYBHAI HASHMUKHBHAI DEKAVADIYA / KOLI THROUGH DEKAVADIYA NAVALBHAI RANCHHODBHAI – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 1344 of 2025
Preventive detention requires activities to adversely affect public order, not merely law and order; mere allegations insufficient for detention.
Headnote:(A) Gujarat Prevention of Anti-social Activities Act, 1985 - Section 2(b) and Section 3(4) - Preventive detention of a bootlegger - The petitioner challenged the detention order on grounds that the alleged activities did not affect public order but merely law and order - The court found that the activities did not create insecurity or panic among the public, thus quashing the detention order. (Paras 1, 4, 8, 9)
(B) Preventive Detention - Distinction between law and order and public order - Mere disturbance of law and order is insufficient for preventive detention; it must affect the community at large. (Paras 8, 17, 18)
Facts of the case:
The petitioner was detained as a bootlegger under the Act of 1985, with allegations of activities affecting public order, which he contested as mere law and order issues. (Paras 1, 4)
Findings of Court:
The court held that the detention order was not sustainable as the activities did not adversely affect public order, quashing the order. (Paras 8, 9)
Issues: Whether the detention order was justified under the Act of 1985 based on the alleged activities of the petitioner. (Paras 6, 9)
Ratio Decidendi: The court ruled that the distinction between law and order and public order must be maintained, and the activities of the petitioner did not meet the threshold for preventive detention. (Paras 8, 18)
Result: Petition allowed; detention order quashed.
| Table of Content |
|---|
| 1. detention order challenged (Para 1 , 2 , 3 , 5 , 7 , 8) |
| 2. grounds of detention (Para 4) |
| 3. sustainability of detention order (Para 6) |
| 4. distinction between orders (Para 9) |
| 5. 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 20.01.2025 passed by the District Magistrate, Morbi 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 Ms. Jadeja 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 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 Morbi.
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 one criminal case registered against the petitioner for the offence punishable under Sections 65(E), 98(2), 81 etc. of Prohibition Act registered with Halvad Police Station, C-Part 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 one prohibition case, 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 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
