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Dhansukh v. State of Gujarat and Ors. - (High Court of Gujarat) (28 Nov 2016)

Every act of assault or injury to specific persons does not lead to public disorder



By way of present petition under Article 226 of the Constitution of India, Petitioner prays to issue a writ of mandamus or any other appropriate writ, order or direction to set aside order of detention, if any, passed by detaining authority against Petitioner under Gujarat Prevention of Anti-social Activities Act, 1985 in exercise of powers under Sub-Section (2) of Section 3 of 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 Constitution of India. Petitioner apprehends that Petitioner is likely to be detained under Act on pretext of F.I.R/s for offence punishable under Sections 66(1) B, 65AE, 116(1)B, 81, 98 and 99 of Prohibition Act.

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

Neither 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 detaining authority to consider possibility of either launching or pendency of criminal proceedings may, in circumstances of a case, lead to the conclusions that the detaining authority has not applied its mind to vital question whether it was necessary to make an order of preventive detention. Since there is an allegation that 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. Detaining authority must satisfy the court that, question too was borne in mind before order of detention was made. In the case on hand, the 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.

Subjective satisfaction arrived at by detaining authority cannot be said to be legal, valid and in accordance with law as offences alleged in FIR/s cannot have any bearing on public order, since the laws of the land are sufficient enough to take care of 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(b) of the Act and unless and until 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. State of West Bengal observed 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. 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. Court opined that, Petitioner is not a "bootlegger" and his act, as alleged in the detention order cannot disturb maintenance of public order and, accordingly quashed impugned order.

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, Sections 2(b), 3 of Gujarat Prevention Of Anti-social Activities Act, 1985


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