SCA/19595/2023 of DIPAKSING OMKARSING RAJJURAM GURJAR THROUGH HIS BROTHER JEETRAM S/O OMKARSING GURJAR Vs THE COMMISSIONER OF POLICE on 6 May 2024

1. By way of this petition, the petitioner-detenue has prayedto quash and set aside the order of detention dated 28.10.2023passed by the Commissioner of Police, Ahmedabad City inexercise of powers conferred under sub-section (1) of Section 3of the Gujarat Prevention of Anti-social Activities Act, 1985(for short, 'the PASA Act') and to set him at liberty forthwith.

2. Learned advocate has submitted that the petitioner hasbeen detained on the ground that he is involved in twodifferent offences under the Gujarat Prohibition Act. Inconnection with both the offences, the petitioner has beenreleased on bail by the competent Court. It is submitted thatat the most, the activities of the petitioner would causedisturbance to the law and order situation and under nocircumstances, it could be said that the activities of thepetitioner would lead to breach of “public order”.

2.1Learned advocate further submitted that instead ofpassing the order of detention, the authority had theopportunity to avail the lesser drastic remedy of cancellation ofbail. In connection with the second offence, the petitionercame to be released on bail on 25.10.2023 and two days thereafter, i.e. 28.10.2023, the order of detention came to bepassed and thus, the subjective satisfaction of the detainingauthority would stand vitiated.

3. Learned AGP strongly objected to the grant of petitionand submitted that the boot-legging of the petitioner-detenuewould lead to disturbance of public order as it would have aserious impact on the society as a whole.

4. Having heard the learned counsel for the parties andhaving gone through the grounds of detention, in the opinionof this Court, the detaining authority has failed to substantiatethat the alleged anti-social activities of the detenue adverselyaffect or is likely to affect the maintenance of “public order”.Merely because two cases under the Prohibition Act have beenregistered against the detenue, that by itself, does not haveany bearing on the maintenance of “public order”.

5. In this connection, a reference to the decision of theHon’ble Supreme Court in Pushker Mukherjee v/s. State ofWest Bengal [AIR 1970 SC 852] is apposite, wherein thedistinction between “law and order” and “public order” hasbeen discussed. The Hon’ble Supreme Court has observed asfollows :

“Does the expression "public order" take in every kind ofinfraction of order or only some categories thereof? It ismanifest that every act of assault or injury to specificpersons does not lead to public disorder. When twopeople quarrel and fight and assault each other inside ahouse or in a street, it may be said that there is disorderbut not public disorder. Such cases are dealt with underthe powers vested in the executive authorities under theprovisions of ordinary criminal law but the culpritscannot be detained on the ground that they weredisturbing public order. The contravention of any lawalways affects order but before it can be said to affectpublic order, it must affect the community or the publicat large. In this connection we must draw a line ofdemarcation between serious and aggravated forms ofdisorder which directly affect the community or injurethe public interest and the relatively minor breaches ofpeace of a purely local significance which primarilyinjure specific individuals and only in a secondary sensepublic interest. A mere disturbance of law and orderleading to disorder is thus not necessarily sufficient foraction under the Preventive Detention Act but adisturbance which will affect public order comes withinthe scope of the Act.”

6. Further, in this case, it does not appear that subjectivesatisfaction has been arrived at by the detaining authoritybefore passing the impugned order of detention. In connectionwith both the FIRs, the detenue has been released on bail bythe competent Court. In respect of the second offence, thedetenue has been released on bail on 25.10.2023; however,merely two days thereafter, i.e. on 25.10.2023, the impugnedorder of detention came to be passed. Though the lesser drastic remedy of cancellation of bail was available, the samehas not been resorted to and straightaway the order ofdetention came to be passed. Hence, the subjective satisfactionof the detaining authority stands vitiated.

7. Subjective satisfaction would stand vitiated, as is held inthe recent decision of the Hon’ble Supreme Court in the caseof Shaik Nazeen v/s. State of Telangana and Ors. rendered inCriminal Appeal No.908 of 2022 (@ SLP (Crl.) No.4260 of 2022dated 22.06.2022, wherein, in paragraph-17, it has beenobserved as under:- “17. In any case, the State is not without a remedy, asin case the detenu is much a menace to the society as isbeing alleged, then the prosecution should seek for thecancellation of his bail and/or move an appeal to theHigher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedy underthe facts and circumstances of the case.”

8. In view of above, we are inclined to allow this petition,because simplicitor registration of FIRs by itself cannot haveany nexus with the breach of maintenance of “public order”and the authority cannot have recourse under the Act and noother relevant and cogent material exists for invoking powerunder section 3(2) of the Act.

9. In the result, this petition succeeds and is hereby

allowed. The order of detention dated 28.10.2023 passed bythe respondent authority is hereby ordered to be quashed andset aside and the detenue is ordered to be set at libertyforthwith, if he is not required in connection with any othercase. Rule is made absolute. Direct service is permitted.

(A.Y. KOGJE, J)

(SAMIR J. DAVE, J)

PRAVIN KARUNAN