SCA/20144/2023 of SURESHKUMAR CHHOGARAMJI MEENA Vs STATE OF GUJARAT on 6 May 2024

1. This petition under Article 226 of the Constitution ofIndia is filed for following relief:- “B)That this Hon’ble Court may be pleased to allowthis present Special Civil Application by issuingappropriate writ of habeas corpus or any otherappropriate writ, order or direction quashing andsetting aside the impugned of detention dated04.11.2023 passed by respondent no.2; Anx-A @B.”this present Special Civil Application by issuingappropriate writ of habeas corpus or any otherappropriate writ, order or direction quashing andsetting aside the impugned of detention dated04.11.2023 passed by respondent no.2; Anx-A @B.”

2. Thus, essentially, the challenge is to the order ofdetention dated 04.11.2023 passed by the District Magistrate,Sabarkantha-Himmatnagar, respondent No.2 herein, by which thepetitioner has been detained as a “bootlegger” as defined undersection 2(b) of the Act based on two offences registered againsthim, details of which are as under:-

3. Learned advocate for the detenue submits that theorder of detention impugned in this petition deserves to be quashedand set aside as registration of the offencesunder Sections of theProhibition Act by itself cannot bring the case of the detenue withinthe purview of definition under section 2(b) of the Act. Further,learned advocate for the detenue submits that illegal activity likely to be carried out or alleged to have been carried out, as alleged,cannot have any nexus or bearing with the maintenance of publicorder and at the most, it can be said to be breach of law and order.Further, except statement of witnesses, registration of above FIR/sand Panchnama drawn in pursuance of the investigation, no otherrelevant and cogent material is on record connecting alleged anti-social activity of the detenue with breach of public order. LearnedAdvocate for the petitioner further submits that it is not possible tohold on the basis of the facts of the present case that activity of thedetenue with respect to the criminal cases had affected even tempoof the society causing threat to the very existence of normal androutine life of people at large or that on the basis of criminal cases,the detenue had put the entire social apparatus in disorder.

3.1It is submitted that there is delay of more than one andhalf months in passing the detention order after the petitioner wasenlarged on regular bail in the second offence on 14.09.2023.

Facts

4. Learned AGP for the respondent State supported thedetention order passed by the authority and submitted thatsufficient material and evidence was found during the course ofinvestigation, which was also supplied to the detenue indicate thatdetenue is in habit of indulging into the activity as defined undersection 2(b) of the Act and considering the facts of the case, thedetaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

5. Having heard learned Advocates for the parties andhaving perused documents on record, it appears that the subjectivesatisfaction arrived at by the detaining authority cannot be said tobe legal, valid and in accordance with law, inasmuch as theoffences alleged in the FIR/s cannot have any bearing on the publicorder as required under the Act and other relevant penal laws aresufficient enough to take care of the situation and that theallegations as have been levelled against the detenue cannot besaid to be germane for the purpose of bringing the detenue withinthe meaning of section 2(b) of the Act. Unless and until, thematerial is there to make out a case that the person has become athreat and menace to the Society so as to disturb the whole tempoof the society and that all social apparatus is in peril disturbingpublic order at the instance of such person, it cannot be said thatthe detenue is a person within the meaning of section 2(b) of theAct. Except general statements, there is no material on recordwhich shows that the detenue is acting in such a manner, which isdangerous to the public order.

6. The Court has also taken into consideration the factthat the petitioner has been enlarged on regular bail by the Courtof competent jurisdiction and the detention order does not reflectapplication of mind to the fact that the Detaining Authority has considered cancellation of bail to be ineffective method to curtailactivities of the petitioner. Therefore, in the opinion of the Court,the Detaining Authority not having taken into consideration thecancellation of bail option. The subjective satisfaction would standvitiated as is held in recent decision of the Hon’ble Supreme Courtin the case of Shaik Nazeen v/s. State of Telanga and Ors.reported in 2023 (9) SCC 633, the Hon’ble Supreme Court hasmade following observations in para 19 as under:- “19.In any case, the State is not without a remedy, asin case the detenue is much a menace to the society asis being alleged, then the prosecution should seek forthe cancellation of his bail and/or move an appeal to theHigher Court. But definitely seeking shelter under thepreventive detention law is not the proper remedyunder the facts and circumstances of the case.”

7. The Court also finds that there is delay there is delay ofmore than one and half months in passing the detention order afterthe petitioner was enlarged on regular bail in the second offence on14.09.2023. The Apex Court in the case of Sushanta KumarBanik Vs. State of Tripura, reported in AIR 2022 SC 4715 hasobserved as under:- “11.We are persuaded to allow this appeal on thefollowing two grounds:

(i) Delay in passing the order of detention from the dateof proposal thereby snapping the "live and proximatelink" between the prejudicial activities and the purposeof detention & failure on the part of the detainingauthority in explaining such delay in any manner.

(ii) The detaining authority remained oblivious of thefact that in both the criminal cases relied upon by thedetaining authority for the purpose of passing the orderof detention, the appellant detenu was ordered to bereleased on bail by the special court. The detainingauthority remained oblivious as this material and vitalfact of the appellant detenu being released on bail inboth the cases was suppressed or rather not brought tothe notice of the detaining authority by the sponsoringauthority at the time of forwarding the proposal to passthe appropriate order of preventive detention.

DELAY IN PASSING THE ORDER OF DETENTION

12. We may recapitulate the necessary facts which havea bearing so far as the issue of delay is concerned. Theproposal to take steps to preventively detain theappellant at the end of the Superintendent of Policeaddressed to the Superintendent of Police (C/S) WestTripura, Agartala is dated 28th of June 2021. Theproposal in turn forwarded by the Assistant InspectorGeneral of Police (Crime) on behalf of the DirectorGeneral to the Secretary, Home Department is dated14.07.2021. The order of detention is dated 12th ofNovember, 2021. There is no explanation worth thename why it took almost five months for the detainingauthority to pass the order of preventive detention.

13. There is indeed a plethora of authorities explainingthe purpose and the avowed object of preventivedetention in express and explicit language. We thinkthat all those decisions of this Court on this aspect neednot be recapitulated and recited. But it would suffice torefer to the decision of this Court in Ashok Kumar v.Delhi Administration and Ors., (1982) 2 SCC 403 ,wherein the following observation is made:

"Preventive detention is devised to afford protection tosociety. The object is not to punish a man for havingdone something but to intercept before he does it andto prevent him from doing."

14. In view of the above object of the preventivedetention, it becomes very imperative on the part of thedetaining authority as well as the executing authoritiesto remain vigilant and keep their eyes skinned but not to turn a blind eye in passing the detention order at theearliest from the date of the proposal and executing thedetention order because any indifferent attitude on thepart of the detaining authority or executing authoritywould defeat the very purpose of the preventive actionand turn the detention order as a dead letter andfrustrate the entire proceedings.

15. The adverse effect of delay in arresting a detenuhas been examined by this Court in a series of decisionsand this Court has laid down the rule in clear termsthat an unreasonable and unexplained delay in securinga detenu and detaining him vitiates the detention order.In the decisions we shall refer hereinafter, there was adelay in arresting the detenu after the date of passingof the order of detention. However, the same principleswould apply even in the case of delay in passing theorder of detention from the date of the proposal. Thecommon underlying principle in both situations wouldbe the "live & proximate link" between the grounds ofdetention & the avowed purpose of detention.

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20. It is manifestly clear from a conspectus of the abovedecisions of this Court, that the underlying principle isthat if there is unreasonable delay between the date ofthe order of detention & actual arrest of the detenu andin the same manner from the date of the proposal andpassing of the order of detention, such delay unlesssatisfactorily explained throws a considerable doubt onthe genuineness of the requisite subjective satisfactionof the detaining authority in passing the detentionorder and consequently render the detention order badand invalid because the "live and proximate link"between the grounds of detention and the purpose ofdetention is snapped in arresting the detenu. Aquestion whether the delay is unreasonable and standsunexplained depends on the facts and circumstances ofeach case.

21. In the present case, the circumstances indicate thatthe detaining authority after the receipt of the proposalfrom the sponsoring authority was indifferent inpassing the order of detention with greaterpromptitude. The "live and proximate link" between thegrounds of detention and the purpose of detention stood snapped in arresting the detenu. Moreimportantly the delay has not been explained in anymanner & though this point of delay was specificallyraised & argued before the High Court as evident fromPara 14 of the impugned judgment yet the High Courthas not recorded any finding on the same.”

8. The Court has also taken into consideration thesubjective satisfaction arrived at by the detaining authority byconcluding that the activity of the petitioner is detrimental to thepublic health and therefore, amounts to breach in public order.However, though the detaining authority has referred to possibleadverse effect on the public health, there is no contemporaneousmaterial or anything on record which could support the conclusionof detaining authority that the sale of liquor at the behest of thepetitioner has resulted in disturbance in any manner in the societyor that the consumption of the liquor so sold by the petitioner hasresulted in damage to the public health. There is also no FSLreport on the record of the case. In absence of any material onrecord, it was not open for the detaining authority to conclude andhence, the subjective satisfaction of the detaining authority isvitiated.

9. In view of above, we are inclined to allow this petition,because simplicitor registration of FIR/s by itself cannot have anynexus with the breach of maintenance of public order and theauthority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) ofthe Act.

10. In the result, the present petition is hereby allowed andthe impugned order of detention dated 04.11.2023 passed by therespondent–detaining authority is hereby quashed and set aside.The detenue is ordered to be set at liberty forthwith if not requiredin any other case.

11. Rule is made absolute accordingly.

Direct service is permitted.

Sd/-(A.Y. KOGJE, J)

SHITOLE

Sd/-(SAMIR J. DAVE,J)