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Raeesh Nisharahmed Salmani Vs. State of Gujarat and Ors. - (High Court of Gujarat) (21 Aug 2017)

Preventive detention order can be passed if activities of the detenue are dangerous to the maintenance of public order

MANU/GJ/1390/2017

Civil

By way of present writ petition under Article 226 of the Constitution of India, the Petitioner prays to issue a writ of mandamus or any other appropriate writ, order or direction to set aside the order of detention, passed by the detaining authority against Petitioner under the Gujarat Prevention of Anti-social Activities Act, 1985 in exercise of powers under Sub-Section (2) of Section 3 of the Act as being illegal, null and void, arbitrary, without jurisdiction and competence suffering from legal mala fides and violative of Articles 14, 19 and 21 of the Constitution of India. The Petitioner apprehends that, Petitioner is likely to be detained under the Act on pretext of F.I.R's. for offence punishable under Section 384, 507, 210(B) of Indian Penal Code, 1860 and under Section 25(1)(B)(A) of Arms Act,1959.

The order of detention is passed on the basis of subjective satisfaction of the detaining authority. Such subjective satisfaction has to be arrived at on two points. Firstly, on the veracity of facts imputed to the person to be detained and secondly, on the prognostication of the detaining authority that, the person concerned is likely to indulge again in the same kind of notorious activities. Whereas, normal laws are primarily concerned with the act of commission of the offence, the detention laws are concerned with character of the person who has committed or is likely to commit an offence. The detaining authority has, therefore, to be satisfied that the person sought to be detained is of such a type that, he will continue to violate the laws of the land if he is not preventively detained. The commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that, there is no alternate but to preventively detain the Petitioner.

Neither the possibility of launching of a criminal proceedings nor pendency of any criminal proceedings is an absolute bar to an order of preventive detention. But, failure of the detaining authority to consider the possibility of either launching or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that, detaining authority has not applied its mind to the vital question whether it was necessary to make an order of preventive detention. The detaining authority must satisfy the Court that the question too was borne in mind before the order of detention was made. In instant case, detaining authority failed to satisfy the Court that, the detaining authority so bore the question in mind and, therefore, the Court is justified in drawing the inference that, there was non-application of mind by detaining authority to the vital question whether it was necessary to preventively detain the detenue. The Apex Court in case of Rekha V/s. State of Tamil Nadu through Secretary to Government and another observed that, if a person is liable to be tried, or is actually being tried for a criminal offence but the ordinary criminal law will not be able to deal with the situation, then and only then, preventive detention be taken recourse to.

The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law as offences alleged in the FIR/s cannot have any bearing on the public order since, laws of the land 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 detenu within the meaning of Section 2(c) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person. In view of the allegations alleged in the aforesaid F.I.R's., the Court is of the opinion that, the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fall under the maintenance of "law and order."

Supreme Court in Pushker Mukherjee v/s. State of West Bengal, distinguished between 'law and order' and 'public order' observing that, it is manifest that every act of assault or injury to specific persons does not lead to public disorder. 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. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. 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. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. 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."

Therefore, it cannot be said that, for the aforesaid offence/s registered against the Petitioner, the Petitioner could be considered to be a "dangerous person", whose preventive detention is must for maintenance of public order. So, the Court is of the considered opinion that, the Petitioner is not a "dangerous person" and his act, as alleged in the detention order cannot disturb maintenance of public order and, therefore, the instant case would fall within 3rd and 4th grounds namely it is passed for wrong purpose or it is passed on vague, extraneous and irrelevant grounds and, therefore, order of preventive detention at pre-execution stage calls for interference of this Court. Impugned order of detention passed by the detaining authority against the Petitioner is quashed and set aside.

Relevant : Rekha vs. State of T. Nadu tr. Sec. to Govt. and Anr. MANU/SC/0366/2011; Pushkar Mukherjee and 29 Ors. vs. The State of West Bengal MANU/SC/0027/1968

Tags : DETENTION   SUBJECTIVE SATISFACTION   LEGALITY  

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