Mere Registration Of FIRs Can't Have Nexus With Breach Of Maintenance Of 'Public Order': Gujarat High Court Quashes Preventive Detention

The petitioner-detenue filed a petition challenging the order of detention which was passed by the respondent-authorities in exercise of powers conferred to them under section 3(2) of the PASA by bringing the detenue within the definitional scope of Section 2(ha) of PASA – which defines a 'sexual offender.'

The petitioner argued that the impugned detention order was liable to be set aside as mere registration of offences against the petitioner under Sections 452, 354, 323, 506(2) of the IPC and under Sections 7, 8 and 18 of the POCSO Act along with Section 135(1) of the Gujarat Police Act could not bring the case of the petitioner within the purview of Section 2(ha).

The petitioner also argued that illegal activity likely to be carried out or alleged to have been carried out, as alleged, could not have any nexus or bearing with the maintenance of 'public order' and at the most, such activity likely or alleged to have been carried out could be said to be breach of 'law and order.'

The petitioner further submitted that except statement of witnesses, registration of above FIR/s and Panchnama drawn in pursuance of the investigation, no other relevant and cogent material was on record connecting alleged anti-social activity of the detenue with breach of public order.

The State, however, argued that sufficient material and evidence was found during the course of investigation, which indicated that detenue was in habit of indulging into the activity as defined under section 2(ha) of PASA and considering the facts of the case, the detaining authority had rightly passed the order of detention and that the detention order deserved to be upheld by the Court.

The High Court, after hearing both the sides, held that the alleged offences in question had no bearing on the public order as required under the Act.

The division bench of Justice S.H. Vora and Justice Rajendra M. Sareen said:

"Other relevant penal laws are sufficient enough to take care of the situation and the allegations as have been levelled against the detenue cannot be said to be germane for the purpose of bringing the detenue within the meaning of section 2(ha) of the Act. 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(ha) of the Act."

The High Court relied on the decision of the Supreme Court in Pushker Mukherjee v. State of West Bengal, AIR 1970 SC 852, to bring home the difference between 'law and order' and 'public order'; PASA only relates to the latter and not the former.

Accordingly, the High Court allowed the petition and quashed the impugned detention order.

Case Title: Dharmesh @ Dhamo Ashokbhai Rana v. State of Gujarat

Citation: 2022 LiveLaw (Guj) 399

Coram: Justice S.H. Vora and Justice Rajendra M. Sareen

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