Gujarat HC Quashes PASA Detention Based on Single Prohibition Case: Activities Did Not Affect 'Public Order' - 2024-10-07

Gujarat High Court Quashes Preventive Detention Under PASA, Citing Lack of Threat to 'Public Order'

Ahmedabad: The High Court of Gujarat has set aside a preventive detention order issued under the Gujarat Prevention of Anti-social Activities Act, 1985 (PASA Act), finding that the activities of the detenue, based on a single prohibition offence, did not constitute a threat to "public order" but merely concerned "law and order."

A division bench of Honourable Mr. Justice Ilesh J. Vora and Honourable Ms. Justice S.V. Pinto (delivering the judgment) allowed a Special Criminal Application challenging the detention order dated September 21, 2024, issued by the Police Commissioner, Ahmedabad City, against the detenue, Bhanabhai Babubhai Solanki .

The detenue was labelled a "bootlegger" under Section 2(b) of the PASA Act and detained. The grounds for detention primarily cited a single criminal case registered against him under various sections of the Prohibition Law on September 8, 2024. Notably, the detenue had been granted bail in this case.

The petitioner's counsel argued that the grounds of detention were isolated incidents related to "law and order" and had no nexus to "public order," which is the threshold required for preventive detention under Section 3(4) of the PASA Act. They contended that registration of one offence, especially where bail was granted, could not be said to have adversely affected or be likely to affect the maintenance of public order.

The learned Additional Public Prosecutor, opposing the plea, submitted that the detenue was a habitual offender whose activities affected society at large. They argued that the detaining authority had considered his antecedents and past activities in passing the impugned order to prevent him from acting prejudicially to the maintenance of public order in Ahmedabad.

Having considered the arguments and material on record, the High Court examined whether the detention order was legally sustainable. The Court noted that the detention was based primarily on a single prohibition case in which the detenue was already on bail.

The bench referred to the well-established distinction between "law and order" and "public order," drawing upon the Supreme Court's decision in Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad, which itself relied on Pushkar Mukherjee Vs. State of Bengal .

The Court reiterated the principle that while every contravention of law affects order, only those that affect the "community or the public at large" and disrupt the "even tempo of the life of the community" impact "public order." Minor breaches affecting specific individuals are matters of "law and order," dealt with under ordinary criminal law, and are not sufficient grounds for preventive detention.

The judgment quoted the relevant paragraphs from Piyush Kantilal Mehta :

>" It is true some incidents of beating by the petitioner had taken place, as alleged by the witnesses. But, such incidents, in our view, do not have any bearing on the maintenance of public order... The petitioner may be punished for the alleged offences committed by him but, surely, the acts constituting the offences cannot be said to have affected the even tempo of the life of the community... merely because he is a bootlegger he cannot be preventively detained under the provisions of the Act unless... his activities as a bootlegger affect adversely or are likely to affect adversely the maintenance of public order. "

Applying this principle, the High Court concluded that the material based on a single prohibition case was insufficient to support the subjective satisfaction that the detenue's activities adversely affected or were likely to affect the maintenance of public order.

"In our opinion, the said two offences do not have any bearing on the maintenance of public order," the Court held. "The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law."

Consequently, the High Court allowed the petition, quashed the detention order dated September 21, 2024, and directed that the detenue, Bhanabhai Babubhai Solanki , be set at liberty forthwith unless required in any other case.

The ruling reinforces the strict requirements for invoking preventive detention laws like PASA, emphasizing that mere involvement in ordinary criminal offences related to law and order, even by someone labelled a "bootlegger," is insufficient unless a tangible threat to the broader public order can be demonstrated.