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Gujarat High Court Distinguished Between 'Public Order' And 'Law And Order'; Releases Detenue Under NDPS Act

PRIYANKA PREET
24 March 2022 3:59 PM GMT
Gujarat High Court Distinguished Between Public Order And Law And Order; Releases Detenue Under NDPS Act
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"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 disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act," the Gujarat High Court...

"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 disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act," the Gujarat High Court has upheld today. Justice AP Thaker was hearing a petition against the detention of the Petitioner by the Respondent authorities under Section 3(2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988.

The Petitioner contested that he was holding a medical license and a medical store. Further, he had already been released on anticipatory bail by the High Court along with the fact that this was a solitary offence regarding the selling of cough syrup in huge quantity to the other accused. Averring that the preventive detention fell within the four corners of Article 21 read with Article 22, it was submitted that the Petitioner be released. Reliance was placed on Rajesh Nagoraj Parate Through Wife Lalitaben Rajesh Parate Vs. State of Gujarat to bolster these contentions.

Per contra, the Respondent submitted that the offence of the Petitioner fell squarely within the environs of the NDPS Act and the Petitioner deserved to remain in detention. Relying on Banka Sneha Sheela Vs. State of Telangana [2021] 0 AIR(SC) 3656, it was contended:

"The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case."

The Bench noted that that it was admitted that cough syrup was indeed sold and yet anticipatory bail was granted to which no appeal was made before the High Court. After a careful examination of the provisions of the NDPS Act, the Bench concluded:

"However, in the present case, prima facie doubtful as to the involvement of the detenu which may fall under the definition of Illicit Trafficking in NDPS Act under Section 2(e)."

The Bench then ventured forth to observed that there was no material on record to show that the Petitioner was acting in a manner to disturb the tempo of the society under Section 3(1) of the NDPS Act. Reliance was placed on Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] to create a distinction between "law and order" and "public order":

"A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act."

Accordingly, the Bench allowed the petition and stated that simplicitor registration of FIR by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material existed for invoking powers under Section 3(1) of the Act.

Case Title: Manoj @ Munnabhai Ashwinbhai Somabhai Parmar Versus Director General Of Police

Case No.: C/SCA/19226/2021

Citation:

Click Here To Read/Download Judgment

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