State Authorities Passing Detention Orders In Casual Manner, Introspection Needed: Gujarat High Court

Observing that detention orders are being passed in a casual manner, the Gujarat High Court has said the State Authorities should introspect about their actions since the court is confronted with the orders of detention, which do not stand the test of settled legal proposition of law.

The division bench of Justice AS Supehia and Justice Divyesh A Joshi said simplicitor registration of FIRs by itself cannot have any nexus with the breach of maintenance of public order. The court made the observations while quashing an order of detention passed under Gujarat Prevention of Anti Social Activities Act, 1985.

“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 goes in peril disturbing public order at the instance of such person, in that circumstances, it cannot be said that the detenue is a person which would fall within the meaning of section 2(c) of the Act,” said the court.

The court passed the ruling on a petition challenging the order of detention passed by the detaining authority in exercise of powers conferred under section 3(1) of the Gujarat Prevention of Anti Social Activities Act, 1985.

Advocate Kishan Daiya, the detenue’s counsel, contended that the impugned order of detention requires to be quashed and set aside because the detaining authority has passed order of detention solely on the ground of registration of two FIRs, first for the offenses under Sections 332, 337, 353, 186, 143, 145, 146, 147, 149, 224, 225 & 225(B) of the Indian Penal Code, and another for the offenses under Section 25(1-B) (A) of the Arms Act and Section 135(1) of the Gujarat Police Act.

Daiya further contended that it is not possible to hold, on the basis of the facts of the present case, that activity of the detenue with respect to the criminal cases had affected and disturbed the social fabric of society, eventually which would become threat to the very existence of normal and routine life of people at large or that on the basis of registration of criminal cases, the detenue had put the entire social apparatus in disorder, making it difficult for whole system to exist as a system governed by rule of law by disturbing public order.

Advocate Jay Mehta, the AGP, contended that sufficient material and evidences were found during the course of investigation, indicating that the detenue is in habit of indulging into the activity as defined under section 2(c) of the Act and considering the facts of the case, the detaining authority has rightly passed the order of detention and detention order deserves to be upheld by this Court.

The bench said that 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 as required under the Act and other relevant penal laws are sufficient enough to take care of the situation. The court also said that the allegations leveled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the realm of meaning of section 2(c) of the Act.

"Number of detention orders under PASA are passed day in and day out, relying on stale material and without drawing distinction between “law and order” problem and “public order” problem as mentioned under the PASA Act," said the court.

It took note of K.Nageswara Naidu Versus Collector And District Magistrate Kadapa wherein the Supreme Court has emphasized that preventive detention involves detaining of a person without trial to prevent him/ her from committing certain types of offences, but such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes, which the detenue may have committed.

While referring o the apex court ruling, the bench noted that the state authorities tend to forget the settled proposition of law and orders are being passed being oblivious of the fact that the freedom of human being is supreme and the same cannot be curtailed or restricted unless the detention is extremely necessary and the activities of the detenue affects the "public order".

The bench also noted that the state authorities are absolutely oblivious of the expression between the "law and order" and "public order".

“While passing the detention orders, the authorities have to be mindful of the characteristic of Article 21 and 22 of the Constitution of India. Article 22 cannot be read in isolation but must be read as an exception to Article 21, and such exception can apply only in rare and exceptional cases,” the bench added.

The bench pointed out that the apex court and the high court have time and again articulated that the personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law.

“We have also come across cases that in a single case of prohibition, the provisions of PASA are invoked and the order of detentions are not executed and the provisions of PASA are invoked even after such detenue have been granted bail. Thus, it appears that, in numerous cases such orders are executed in order to frustrate the orders of bail,” the bench said

While taking note of the first offence in the present case, the bench noticed that the petitioner along with other co-accused was released by the Magistrate vide order dated 14.03.2023. Further taking note of the second offense, the bench noticed that the petitioner was enlarged on bail by 8th Additional Sessions Judge, Surat vide order dated 29.03.2023.

The bench also noted that the contents of the FIRs as well as the orders passed in the bail applications, it is apparent that the locally-made pistol was found, which did not have any cartridge, when the raid was carried out, and the detaining authority, while passing the order of branding the petitioner as a dangerous person, has also placed reliance on the statement of the secret witnesses.

“Thus,” the bench said, “it is high time that the State Authorities should introspect their action of passing detention order in a casual manner since this Court is confronted with the orders of detention, which do not stand the test of settled legal proposition of law.”

Case Title: Farhan vs. State of Gujarat R/SPECIAL CIVIL APPLICATION NO. 6670 of 2023

Case Citation: 2023 Livelaw (Guj) 85

Appearance:MR. KISHAN H DAIYA(6929) for the Petitioner(s) No. 1DS AFF.NOT FILED (R) for the Respondent(s) No. 2,3

MR JAY MEHTA, AGP for the Respondent(s) No. 1

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