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Amit Vs. State of Gujarat and Ors. - (High Court of Gujarat) (02 Nov 2017)

If a person tried for criminal offence but ordinary criminal law will not be able to deal with situation, only then, preventive detention can be taken recourse to



Present petition was against the order of detention passed by Respondent in exercise of powers conferred under Section 3[2] of the Gujarat Prevention of Anti Social Activities Act, 1985 by detaining the detenue as a dangerous person as defined under Section 2[c] of the Act. Learned advocate for the detenue submits that, the order of detention impugned in present petition deserves to be quashed and set aside on the ground that, the registration of three offences by itself cannot bring the case of the detenue within the purview of definition of dangerous person under Section 2[c] of the Act. Illegal activity carried out as alleged, cannot have any nexus or bearing with the maintenance of the public order and at the most it can be said to be breach of law and order. Further, except statements of witnesses and registration of FIRs, no other relevant or cogent material is available on record connecting the alleged anti-social activities of the detenue with breach of the public order.

The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law as the offences alleged in the FIRs cannot have any bearing on the public order since the law of the land i.e. Indian Penal Code 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 as a dangerous person 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, it cannot be said that, the detenue is a dangerous person within the meaning of Section 2[c] of the Act. Except general statement, there is no material on record which shows that the detenue is acting in such a manner which is dangerous to the public order.

Registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order and the authority can take recourse under the Indian Penal Code and no other relevant or cogent material exists for invoking powers under Section 3[2] of the Act.

In the present case, it seems that, Petitioner has been detained several times but at present, the detention order under challenge does not disclose all such facts so as to enable the petitioner to properly represent his case. Hence, there is no option but to consider that present order of detention is solely based upon three offences. Therefore, considering the settled legal position that, no person can be detained for three offences.

In view of facts and circumstances, it would be necessary to observe that, the competent authority is not precluded from disclosing all material facts while detaining the petitioner if so required for any offence that he might commit hereinafter. Though impugned order is quashed and set aside at present, it would not come in way of the competent authority for quoting such FIR and order of detention, thereby to treat Petitioner as a habitual offender in case of commission of offence repeatedly.

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 of or pendency of criminal proceedings may, in the circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to the vital question as to whether it was necessary to make an order of preventive detention. Since, there is an allegation that, the order of detention is issued in a mechanical manner without keeping in mind whether it was necessary to make such an order when an ordinary criminal proceedings could well serve the purpose. The detaining authority must satisfy the Court that, the question too was borne in mind before the order of detention was made.

The Court is justified in drawing the inference that there was no application of mind by detaining authority to the vital question of whether it was necessary to preventively detain the detenue. In the case of Rekha v. State of Tamil Nadu through Secretary to Government and another, it is observed by Apex Court 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 can be taken recourse to. However, since all such orders are quashed on technical grounds, the same shall not come in the way of the Detaining Authority to pass an appropriate order in future. The petition is allowed and order of detention is quashed.

Relevant : Rekha v. State of Tamil Nadu through Secretary to Government and another MANU/SC/0366/2011: (2011)5 SCC 244


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