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HIGH COURT OF GUJARAT
S.H. Vora, Rajendra M. Sareen, JJ
MANGILAL TEJARAM PELADARA BISHNOI THROUGH RAJUBHAI SHIVABHAI PARMAR – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 11847 of 2022
For the Appellants/Petitioners: MR BHAVIN S RAIYANI
For the Respondents: MS ASMITA PATEL, AGP
Preventive detention requires substantial threat to public order; insufficient grounds render the detention illegal.
Headnote:(A) Preventive Detention Laws - Pre-execution challenge - Detention order under the PASA Act - Judicial scrutiny of subjective satisfaction of the detaining authority - Detention is not justified without a threat to public order; the petitioner’s acts do not fall under public disorder but rather law and order: Pushker Mukherjee Case. (Paras 7, 10, 11)
(B) Legal grounds for detention - Validity of detention order must consider the existence of adequate grounds; failure to apply mind to possible criminal proceedings renders detention order illegal. (Paras 7, 11)
Facts of the case:
The petitioner apprehended detention under PASA due to allegations of offences under the Prohibition Act, which the court deemed insufficient to justify preventive detention considering existing laws would suffice to deal with the situation.
Findings of Court:
The detention order is quashed; it lacks adequate grounds to support the conclusion of disturbing public order.
Issues: Whether the activities of the petitioner justify preventive detention under the PASA Act? Are the grounds sufficient to prove a public disorder?
Ratio Decidendi: The court held that preventive detention is permissible only where the person poses a genuine threat to public order, which was not established in this case.
Result: Petition allowed; detention order quashed.
| Table of Content |
|---|
| 1. petitioner apprehends detention under pasa due to pending fir. (Para 3 , 5) |
| 2. subjective satisfaction must be based on adequate legal grounds. (Para 7 , 8) |
| 3. assessment of public order vs. law and order is crucial in detention cases. (Para 10 , 11) |
| 4. detention order quashed due to lack of validity and proper grounds. (Para 12) |
JUDGEMENT
(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN)
1. Rule. Learned A.G.P. waives service of Rule for the respondent – State.
2. With the consent of the learned advocates appearing for the respective parties, the present petition is taken up for final hearing today.
3. The petitioner apprehends that the petitioner is likely to be detained under the PASA Act on the pretext of F.I.R/s for the offence punishable u/s 65(A)(E), 116(b), 81, 83 and 98(2) of the Prohibition Act .
4. During the course of hearing, the State was directed to place on record the detention order for Court’s perusal and consequently, the State has placed on record the detention order dated 26.05.2022 passed by the detaining authority.
5. Learned advocate for the petitioner has submitted that the petition in the present form is maintainable and tenable both on law as well as on facts to substantively challenge the order of detention at pre-execution stage in view of the decision of the Hon'ble Apex Court in the case of Deepak Bajaj V/s. State of Maharashtra and another reported in (2008)16 SCC 14. According to him, the Hon'ble Apex Court, considering its earlier decision in the case of Additional Secretary to the Government of India and others V/s. Smt. Alka Subhash Gadia and another reported in 1992 Supp.(1) SCC 496 and the objections taken at the pre-execution stage by the other side therein, on the identical ground, has held that "we are of the opinion that the five grounds mentioned therein on which the Court can set-aside the detention order at pre execution stage are only illustrative not exhaustive".
Learned advocate for the petitioner also relied upon the decision of the Division Bench of this Court in the case of Mahendrasinh Mangalsinh Jadeja V/s. State of Gujarat and other delivered in Letters Patent Appeal No.1495 of 2013 on 24.12.2013. Lastly, he has submitted that it is an established law that the detention in case of offence registered against detenu under the Act, is against the law. According to him, except aforesaid offence, there is no material to indicate that the alleged activity of the petitioner is affecting or likely to affect adversely to the maintenance of public order and hence, the order of detention is illegal and bad in law.
6. Learned A.G.P. for the State, on the other hand, submitted that this petition is at pre-execution stage without surrendering before challenging the order of detention.
Unless and until the petitioner surrenders, he would not be entitled to get the order as well as the grounds thereunder and the petitioner would not be entitled to copies of the same by filing the present petition.
7. The order of detention is passed on the basis of what has come to be known as the subjective satisfaction of the detaining authority such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that he will continue to violate the laws of the land if he is not preventively detained. So, the commission of infraction of law, not done in an organized or
