Numerous Preventive Detention Orders Passed Day In & Day Out Relying On "Stale Material": Gujarat High Court Grants Relief To NDPS Accused

"Simplicitor registration of FIR/s by itself cannot have any nexus with the breach of maintenance of public order and the authority cannot have recourse under the Act...without drawing distinction between "law and order" problem and "public order" problem as mentioned under the PASA Act."

The court was hearing a petition against the detention order passed by the State authorities u/s 3(2) of PASA. The Petitioner was alleged to have committed offences u/s 8(c), 22, 29, 20(b) of the NDPS Act.

The chief contention of the Petitioner was that the alleged offences by itself could not bring the Petitioner within the purview of Sec 2(f) of PASA. The alleged activities of the Petitioner could not have any nexus or bearing on the maintenance of public order. At the most it could be a breach of law and order. It was further argued that barring statement of witness, registration of FIR, no other cogent material was available to prove the alleged anti-social activity committed by the Petitioner.

Per contra, the AGP submitted that the Petitioner was 'in the habit of indulging in the activity as defined under Section 2(f) of the Act.' However, no counter affidavit was filed on State's behalf. In this background the bench observed,

"No need to say when a citizen is deprived of his personal liberty by keeping him behind the bar under the provisions of the PASA law without trial by the competent court, the detaining authority is required under the law to justify its action and in absence of reply/counter affidavit, the averments made in the petition remain unchallenged and uncontroverted."

Holding that the action of the authority was not legal or valid, the High Court explained that unless there was material to make out a case that a person had become a threat and menace to the society so as to disturb the whole tempo of the society, it could not be said that the detenue had done activity as under Sec 2(f) of the Act. Reliance was placed on Pushker Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] to distinguish 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."

Keeping in view these facts, the Bench reiterated that the State is not without a remedy if the detenu poses a menace to the society. It can seek cancellation of bail, appeal to Higher Court but cannot take shelter under preventive detention laws.

Case No.: C/SCA/10226/2022

Case Title: JERAMBHAI PREMJIBHAI CHAUHAN (KOLI) THROUGH BHAGWANJIBHAI PREMJIBHAI CHAUHAN (KOLI) v/s STATE OF GUJARAT

Citation: 2022 LiveLaw (Guj) 307

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