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Infraction Of Law Not Done In Systematic Manner May Not Be Sufficient For Preventive Detention: Gujarat High Court
PRIYANKA PREET
29 Aug 2022 6:00 AM GMT
The Gujarat High Court has held that commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain an accused.The Bench comprising Justices SH Vora and Rajendra Sareen held:"No doubt, neither the possibility of launching of...
The Gujarat High Court has held that commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternate but to preventively detain an accused.
The Bench comprising Justices SH Vora and Rajendra Sareen held:
"No doubt, neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the the detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention."
The bench was dealing with the petition filed by a person apprehending detention under the PASA Act on the pretext of FIR/s for the offence punishable under Sections 323, 342,354, 354(A)(2), 375 etc. of IPC.
On the basis of the above offence/s, the detaining authority had come to the subjective satisfaction that the activities of the petitioner as "sexual offender" have disturbed the public order.
On a perusal of the record, the High Court was of the view 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 bearing on the public order since the laws of the land are sufficient enough to take care of the situation.
"The allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenu within the meaning of Section 2(ha) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person."
The Court then observed that detention at a pre-execution stage on vague, extraneous and irrelevant grounds is liable to be set aside.
"Therefore, it cannot be said that for the aforesaid offence/s registered against the petitioner, the petitioner could be considered to be a "sexual offender", whose preventive detention is must for maintenance of public order. So, the Court is of the considered opinion that the petitioner is not a "sexual offender" and his act, as alleged in the detention order cannot disturb maintenance of public order and, therefore, the instant case would fall within 3rd and 4th grounds namely it is passed for wrong purpose or it is passed on vague, extraneous and irrelevant grounds mentioned in the case of Alka Gadia (supra) and, therefore, order of preventive detention at pre-execution stage calls for interference of this Court."
In Government of India v/s Alka Subhash Gadia, the Apex Court had laid down 5 grounds for challenging the detention order at a pre-execution stage:
- The order was not passed under the Act under which it was purported to have been passed.
- It was executed against the wrong person.
- It was passed for a wrong purpose.
- It was passed on vague, extraneous, irrelevant grounds.
- The authority did not have the power to pass the order.
Thus, the Court found that there was no legal rationale for assessing the Petitioner as a 'sexual offender' such that he was a threat or a menace to the society who would disturb the tempo of the society.
Hence, the instant case fell within the 3rd and 4th grounds mentioned in the Alka Gadia judgement. The detention order was set aside.
Case No.: C/SCA/11589/2021
Case Title: PATEL BHAVESHKUMAR CHANDRAKANTBHAI v/s STATE OF GUJARAT
Citation: 2022 LiveLaw (Guj) 356
