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2022 Supreme(Online)(Guj) 6517
HIGH COURT OF GUJARAT
S.H. VORA, RAJENDRA M. SAREEN, JJ
JAGDISH @ VICKY @ MANSIK S/O GANESHBHAI PATIL THROUGH HIS UNCLE DHANRAJ NARAYAN PATIL – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 14985 of 2022
For the Appellants/Petitioners: MR HIREN VERMA, MR. MAHITOSH U SINGH
For the Respondents: MS DIVYANGNA JHALA, AGP
Preventive detention requires clear evidence of a threat to public order, not just the registration of criminal offenses.
Headnote:(A) Gujarat Prevention of Anti Social Activities Act, 1985 - Section 3(2) - Detention order quashed - Registration of FIRs alone cannot justify preventive detention under PASA; necessity to show that the person poses a threat to public order - Subjective satisfaction of detaining authority deemed insufficient without further evidence. (Paras 5, 7)
(B) Preventive Detention Laws - Proper application - Detention should not be based on stale materials without clear evidence of disturbance to public order. Key factors to establish a menace that disrupts community life should be indicative of public order issues. (Paras 6, 6.1)
Facts of the case:
The petition challenges a detention order under the GP Act, where the detaining authority failed to substantiate its claims connecting the detenue's actions with public order disruption. No cogent evidence was provided linking past offenses to a general threat to societal order.
Findings of Court:
The court concluded that the allegations against the detenue did not satisfy the legal threshold for preventive detention as defined in the Act, as they did not affect public order comprehensively. Therefore, the detention order was quashed.
Issues: Whether the registration of offenses under various IPC sections alone justified the detention order under the GP Act, and whether the subjective satisfaction of the detaining authority was legally valid.
Ratio Decidendi: The core finding was that not all criminal activities necessitate preventive detention; there must be a clear, demonstrative threat to public order for such measures to be lawful.
Result: The petition was allowed, and the detention order was quashed.
| Table of Content |
|---|
| 1. grounds for quashing detention order were substantiated. (Para 2) |
| 2. causative link to public order not established. (Para 3 , 4) |
| 3. subjective satisfaction must be backed by evidence. (Para 5 , 6) |
| 4. order of detention quashed based on lack of public disorder. (Para 7) |
JUDGEMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)
1. Heard learned advocates appearing for the respective parties.
2. The present petition is directed against order of detention dated 02.05.2022 passed by the respondent – detaining authority in exercise of powers conferred under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (for short “the Act”) by detaining the petitioner – detenue as defined under section 2(c) of the Act.
3. Learned advocate for the detenue submits that the order of detention impugned in this petition deserves to be quashed and set aside on the ground of registration of the offences under Sections 3 24, 506(2), 114 etc. of IPC and under section 135 of GP Act by itself cannot bring the case of the detenue within the purview of definition under section 2(c) of the Act.
Further, learned advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged, cannot have any nexus or bearing with the maintenance of public order and at the most, it can be said to be breach of law and order. Further, except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. Learned advocate for the petitioner further submits that it is not possible to hold on the basis of the facts of the present case that activity of the detenue with respect to the criminal cases had affected even tempo of the society causing threat to the very existence of normal and routine life of people at large or that on the basis of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order.
4. Learned AGP for the respondent State supported the detention order passed by the authority and submitted that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court. The State has chosen not to file counter affidavit/reply so as to disturb the action invoking provisions of the PASA Act. No need to say when a citizen is deprived of his personal liberty by keeping him behind the bar under the provisions of the PASA law without trial by the competent court, the detaining authority is required under the law to justify its action and in absence of reply/counter affidavit, the averments made in the petition remain unchallenged and uncontroverted.
5. Having heard learned advocates for the parties and considering the facts and circumstances of the case, it appears that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR/s cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(c) of the Act. Unless and until, the material is there to make out a case that the person has become a threat and menace to the So
