20 Jan 2023 5:00 AM GMT
A division bench of the Gujarat High Court recently quashed a detention order on the ground that merely registration of FIRs without any nexus with the breach of maintenance of public order cannot bring the case of the detenue within the purview of definition under section 2(b) the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”). While allowing the petition...
A division bench of the Gujarat High Court recently quashed a detention order on the ground that merely registration of FIRs without any nexus with the breach of maintenance of public order cannot bring the case of the detenue within the purview of definition under section 2(b) the Gujarat Prevention of Anti Social Activities Act, 1985 (“the Act”).
While allowing the petition Justice Vipul M. Pancholi and Justice Hemant M. Prachchhak observed:
“it appears 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 FIRs 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 and that the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(b) of the Act.”
The counsel for the petitioner Mr. Bhavin S Raiyani had argued that except statement of witnesses, registration of above FIRs and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order thus the detention order shall be set aside.
The AGP for the state contended that sufficient material and evidence was found during the course of investigation, which was also supplied to the detenue indicate that detenue is in habit of indulging into the activity as defined under section 2(b) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention.
After hearing both the parties and considering the material on record the court held that 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 Act.
The court relied upon Pushker Mukherjee v. State of West Bengal AIR 1970 SC 852 where the Supreme Court has held that 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.
The court also put emphasis on Shaik Nazeen v. State of Telangana and Ors and Syed Sabeena v. State of Telangana and Ors. in Criminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of 2022 with Criminal Appeal No.909 of 2022 (@ SLP (Crl.) No.4283 of 2022 dated 22.06.2022, in which the Supreme Court held:
“In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.”
In conclusion the court allowed the petition and quashed and set aside the impugned order of detention.
Case Title: Bhavesh @ Pinto Janakbhai Kotak v. Commissioner of Police
Case Citation: 2023 Livelaw (Guj) 15
Coram: Justice Vipul M. Pancholi and Justice Hemant M. Prachchhak
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