On January 5, a division bench of the Gujarat High Court had quashed a detention order on the grounds that the mere filing of FIRs without any linkage to the violation of public order cannot bring the detainee's case within the purview of the definition in section 2(b) of the Gujarat Prevention of Anti-Social Activities Act, 1985.  

While granting the petition, Justices Vipul M. Pancholi and Hemant M. Prachchhak made the following observations: 

“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.” (Para 5)

Arguments by the counsel for the petitioner:

•  Mr. Bhavin S Raiyani, counsel for the petitioner, argued that, aside from the statement of witnesses, registration of the above FIRs, and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material is on record connecting the detainee's alleged anti-social activity with breach of public order, and thus the detention order should be set aside.

•  The advocate for the detenue further contended that the order of detention challenged in this petition deserves to be quashed and set aside on the grounds that registration of three offenses under the Prohibition Act cannot bring the detenue's case within the purview of definition under section 2(b) of the Act.

• Furthermore, the counsel said that illegal behavior likely to be carried out or alleged to have been carried out, as alleged, cannot have any linkage or bearing with the maintenance of public order and can only be described as a breach of law and order.

Arguments by the state:

The AGP for the state contended that sufficient material and evidence was discovered during the course of the investigation, which was also provided to the detainee, indicating that the detainee is in the habit of engaging in the activity as defined in section 2(b) of the Act, and that, taking the facts of the case into account, the detaining authority correctly issued the order of detention.

The decision of the court:

After hearing both the parties and reviewing the evidence, the court determined that the detenue is not a person within the meaning of section 2(b) of the Act unless and until there is evidence that the person has become a threat and menace to society in such a way that it has disrupted the entire tempo of society and that all social apparatus is in danger of disturbing public order at the instance of such person.

The court cited Pushker Mukherjee v. State of West Bengal AIR 1970 SC 852, in which the Supreme Court had declared that leading to disorder is not always sufficient for action under the Preventive Detention Act, but a disruption that will harm public order comes within the ambit 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 which the Supreme Court had held that 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.

Giving regards to the arguments forwards, evidence presented and the cases cited, the Gujarat High Court allowed the petition and quashed and set aside the impugned order of detention. 

The order can be read here.

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