Registration Of FIR By Itself Can't Have Any Nexus With Breach Of Maintenance Of Public Order: Gujarat High Court

Quashing a detention order passed u/s 3 (2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988 [PITNDPS Act], the Gujarat High Court on Tuesday observed that simpliciter registration of FIR by itself cannot have any nexus with the breach of maintenance of public order.

With this, the Bench of Justice A. P. Thaker ALLOWED the plea moved by detenue Mohsinkhan and QUASHED the impugned order of detention (dated 29.11.2021) passed by the respondent – detaining.

Essentially, the Court was hearing the plea moved by the Detenue against the order of detention passed by the respondent – detaining authority in exercise of powers conferred under Section 3 (2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988.

It may be noted that Section 3(1) of the Act provides power to the detaining authority to detain a person with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances.

Against this backdrop, it was the plea of the petitioner/detenue that the entire exercise undertaken by the detaining authority was merit less and since there was no strict compliance with the provisions of the act in question, the detention order itself was illegal ab initio.

Having heard the advocates for the parties and considering the facts and circumstances of the case, the Court came to the following conclusion:

"...the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law, inasmuch as the offences alleged in the FIR cannot have any baring on the public order as required under the Act and other relevant penal laws are sufficient enough to take care of the situation and that the allegations as have been levelled against the detenu cannot be said to be germane for the purpose of bringing the detenu within the meaning of section 3(1) of the Act."

Further, the Court also underscored that unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act.

In view of above, the Court allowed the petition, stressing that simplicitor registration of FIR by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act and no other relevant and cogent material exists for invoking power under section 3(2) of the Act. 

In the result, the present petition was allowed and the impugned order of detention was quashed and set aside. The detenu was ordered to be set at liberty forthwith if not required in any other case. 

In related news, the Gujarat High Court recently distinguished between 'Public Order' and 'Law and Order' while releasing a person detained under the PITNDPS Act. The Court observed thus:

"Unless and until, the material is there to make out a case that the person has become a threat and menace to the Society so as to disturb the whole tempo of the society and that all social apparatus is in peril disturbing public order at the instance of such person, it cannot be said that the detenue is a person within the meaning of section 3(1) of the Act."

The Bench of Justice AP Thaker remarked thus while hearing a petition against the detention of the Petitioner by the Respondent authorities under Section 3(2) of the Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act 1988.

Case title - Mohsinkhan Muso Murajkhan v. Directorate General Of Police

Citation:

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