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HIGH COURT OF GUJARAT
S.H. VORA, RAJENDRA M. SAREEN, JJ
DHARMESH @ DHAMO BHANUBHAI PARMAR – Appellant
Versus
THE POLICE COMMISSIONER – Respondent
R/SPECIAL CIVIL APPLICATION NO. 16079 of 2022
For the Appellants/Petitioners: MR YASH H JOSHI
For the Respondents: MS DHARITRI PANCHOLI, ASST. GOVERNMENT PLEADER/PP
Preventive detention requires evidence linking actions to public order threats, not merely registration of offenses.
Headnote:(A) Preventive Detention Act, 1988 - Section 2(c) - Detention order claimed to threaten public order - Mere registration of FIRs without clear connection to public order issues insufficient for preventive detention - Court emphasized distinction between law and order and public order. (Paras 6-7)
(B) Judicial review on preventive detention - Court held subjective satisfaction must have substantial and cogent material linking accused to public disorder to justify detention. (Paras 5, 6)
Facts of the case:
Detenue challenged the legality of a detention order based on allegations from FIRs under IPC and G.P. Act, claiming insufficient evidence of threat to public order.
Findings of Court:
The court found no compelling evidence demonstrating risk to public order, thus quashing the detention order.
Issues: The pivotal question was whether the actions of the detenue had significant implications on public order, contrasting with mere breaches of law and order.
Ratio Decidendi: The court ruled that without substantial evidence of public disorder, an individual cannot be detained preventively; the definitions of law and order vs. public order must be distinctly maintained.
Result: Petition allowed; detention order quashed and the detenue directed to be released.
| Table of Content |
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| 1. initial hearing of the respective parties. (Para 1) |
| 2. challenges against the detention order based on insufficient links to public order. (Para 2 , 3) |
| 3. arguments on effectiveness and legality of the detention order. (Para 4 , 5) |
| 4. court's emphasis on evidence and distinction between law and order vs public order. (Para 6) |
| 5. outcome of the case: quashing of the detention order. (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 13.7.2022 passed by the respondent – detaining authority
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(2) 3, 324, 504, 506(2), 294(B), 114 etc. of the IPC and u/s 135(1) of the G.P. 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 Society so as to disturb the whole tempo of the society and that all social apparatus is in peril di
