Offences Under Drugs & Cosmetics Act & Medical Practitioner Act Can't By Itself Bring Detenu Under Gujarat Prevention Of Anti-Social Activities Act: High Court

The detenu had contested that illegal activity likely to be carried out or alleged to have been carried out could not have any nexus or bearing with the maintenance of public order and at the most, it could be said to be a breach of law and order. It could not be said that the activities of the detenu had 'affected the tempo of the society' or caused threat to the very existence of the normal and routine life of the people at large. The activities did not disrupt the rule of law by disturbing public order.

Per contra, the AGP supported the detention by submitting that the detenu was in the habit of indulging in such activities and thus his activities could be brought under Section 2(c) of the Anti-Social Activities Act.

Justice S Vora and Justice Sandeep Bhatt opined that the detention cannot be legal, valid and in accordance with law since the offences registered against the detenu could be dealt with under the provisions of the relevant penal laws and the relevant legislation. The Bench remarked:

"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 2(c) of the Act."

There was no evidence on record to show that the acts of the detune had disturbed the whole tempo of the society or disrupted public order as within the meaning of Section 2(c) of the Act, per the Bench. Reference was made to Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] to provide the distinction between 'law and order' and 'public order':

"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."

Accordingly, the petition was allowed and the order of detention was quashed.

Case Title: SUBHASHCHANDRA SANATAN MALLIK THROUGH BABITA SUBHASHCHANDRA MALLIK v/s STATE OF GUJARAT

Case Citation: 2022 LiveLaw (Guj) 187

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