When Legality Of A Preventive Detention Order Is In Question, Courts Must Determine If The Ordinary Law Can Deal With The Offence: Gujarat HC

The Petitioner contested that the impugned order ought to be set aside since it was borne out of the registration of four offences of which the last offence was committed in 2020. Therefore, there was no recent offence under IPC. Additionally, the illegal activity alleged to have been carried cannot have any nexus with or bearing on the maintenance of public order and at the most it can be termed as 'breach of law and order.' Further, barring statement of witnesses, registration of FIR and Panchnama, there was no relevant evidence to show that the Petitioner alleged in anti-social activity. There was no evidence to show that the Petitioner affected 'the tempo of the society' or posed a 'threat to the very existence of normal and routine life of people at large.' Per contra, the AGP supported the detention order passed by the authority since the Petitioner had indulged in activity as defined in Section 2(c) of the Act.

Judgement

The Bench expressed disagreement with rationale employed by the detaining authority in detaining the Petitioner since his alleged activities were squarely covered within the ambit of relevant penal laws and could not have been brought within the fold of Section 2(c) of the Act. Justice Desai 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. Except general statements, there is no material on record which shows that the detenue is acting in such a manner, which is dangerous to the public order."

Reliance was placed on Pushkar Mukherjee v/s. State of West Bengal [AIR 1970 SC 852] wherein the Apex Court had drawn a distinction between 'law and order' and 'public order':

"When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order."

Meanwhile, 'law and order' was dealt with as:

"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."

Significantly, Justice Desai referred to Rekha Versus State of Tamilnadu 2011) 5 SCC 244 to explain that whenever the legality of an order under the preventive detention law is challenged, the Courts must determine if the ordinary law of the law is sufficient to deal with the situation. In the Rekha case, the detenu was selling expired drugs which squarely fell within the ambit of the IPC and the Drugs and Cosmetics Act. Hence, the detainment could not be sustained.

In the instant case, the Bench found no nexus between the alleged breach of maintenance of public order and the FIRs and accordingly, the petition succeeded.

Case Title: Aveshbhai @ Avalo Ganibhai Ghoniya Through Brother Azimbhai Ganibhai Ghoni V/S The District Magistrate And Collector & 2 Other(S)

Case No.: C/SCA/963/2022

Citation:

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