In R/SPECIAL CIVIL APPLICATION NO. 13876 of 2022-GUJ HC- Neither possibility of launching of criminal proceeding nor pendency of such proceeding, is absolute bar to order of preventive detention: Gujarat HC
Justices S.H. Vora & Rajendra M. Sareen [02-09-2022]

Read Order: SUJANARAM KALURAM VISHNOI v. STATE OF GUJARAT 

Mansimran Kaur

Ahmedabad, September 5, 2022: The commission of infraction of law, not done in an organized or systematic manner, may not be sufficient for the detaining authority to justifiably come to the conclusion that there is no alternative but to preventively detain the petitioner, the Gujarat High Court has opined.

A Division bench of Justice S.H. Vora and Justice and Justice Rajendra M. Sareen allowed the present petition wish was instituted against the detention order and was preferred at the pre- executing stage.

The bench was of the view that the order of detention was passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and deserves to be quashed and set aside. 

The petitioner in the present case was  apprehended that he was likely to be detained under the  PASA Act on the pretext of F.I.R/s for the offence punishable u/s 65-A, 65-E, 116-B, 81, 83, 98(2) of Prohibition Act and under Sections 465, 467, 468, 471 and 120-B of IPC. 

During the course of hearing, the State was directed to place on record the detention order for Court’s perusal and consequently, the State  placed on record the detention order dated October 13, 2020  passed by the detaining authority.

After considering the submissions of the parties, the Court adjudged as to whether  in the facts of this case, it should interfere with the preventive detention order at the pre-execution stage. 

It is true that this petition is filed at a pre-execution stage. However, from the grounds of detention, produced for Court’s perusal, it appeared that the offence/s, as aforesaid,were registered against the petitioner. This fact was not controverted by the detaining authority, the Court noted. 

It also appeared  that on the basis of the above offence/s, the detaining authority  came  to the subjective satisfaction that the activities of the petitioner as "bootlegger"  disturbed the public order. The preventive detention order mentions that the petitioner was a "bootlegger", the Court noted. 

 It appeared  that the subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law inasmuch as the offences alleged in the FIR/s cannot have any bearing on the public order since the laws of the land are sufficient enough to take care of the situation and that the allegations as have been leveled against the detenue cannot be said to be germane for the purpose of bringing the detenu within the meaning of Section 2(b) of the Act and unless and until the material is there to make out a case that the person concerned has become a threat and a menace to the society so as to disturb the whole tempo of the society and that the whole social apparatus is in peril disturbing public order at the instance of such person, the Court noted. 

 In view of the allegations alleged in the aforesaid F.I.R/s., the Court was of the opinion that the activities of the detenue cannot be said to be dangerous to the maintenance of public order and at the most fell under the maintenance of law and order.Reliance at this stage was placed on the case of  Pushker Mukherjee v/s. State of West Bengal.

Thus, this Court was of the considered opinion that the petitioner was  not a "bootlegger" and his act, as alleged in the detention order, cannot disturb maintenance of public order. As the order of detention was passed by the detaining authority without having adequate grounds for passing the said order, it cannot be sustained and deserves to be quashed and set aside, the Court observed. 

In light of the observations stated above, the appeal was allowed .