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Preventive Detention Not Tenable When Other Penal Laws Sufficient To Deal With The Situation: Gujarat High Court

PRIYANKA PREET
21 March 2022 8:45 AM GMT
Preventive Detention Not Tenable When Other Penal Laws Sufficient To Deal With The Situation: Gujarat High Court
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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 2(b) of the Gujarat Prevention of Anti...

"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 2(b) of the Gujarat Prevention of Anti Social Activities Act, 1985", the Gujarat High Court has opined recently.

The Bench comprising Justice Rajendra Sareen was hearing a special civil application against the order of detention dated December 2021 against the Petitioner herein under Section 3(2) of the Act.

The Petitioner submitted that the registration of the solitary offence under Sections 65-AE, 116B, 98(2) and 81 of the Prohibition Act by itself cannot bring the case of the Petitioner within the purview of Section 2(b) of the Act. Additionally, it was averred that illegal activity likely to be carried out cannot have nexus with the maintenance of public order and at the most, it can be said to be breach of law and order. There was also no evidence barring the statement of witnesses and the registration of the FIRs to connect the alleged anti-social activity of the Petitioner with the breach of public order.

Per contra, the Respondent State supported the detention order and submitted that there was sufficient material discovered during the course of investigation which showed that the Petitioner was in the habit of indulging in activities defined under Section 2(b) of the Act.

The Court stated that 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.

It observed that except general statements, there is no material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order.

Reliance was placed on Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] wherein the Supreme Court had drawn a distinction between 'law and order' and 'public order':

"When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder…The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. 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."

In the instant case, per the Bench, the Petitioner had not committed an act within Section 2(b) of the Act such that it disturbed the tempo of the society. Owing to these facts and circumstances, Justice Sareen quashed and set aside the detention order.

Case Title: DILIP BHAVANISHANKAR YADAV Versus STATE OF GUJARAT

Case No.: C/SCA/19820/2021

Click Here To Read/Download Judgment


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