Court’s Decision
In Special Criminal Application No. 7556 of 2025, the Gujarat High Court quashed the preventive detention of a petitioner declared a “bootlegger” under Section 2(b) of the Gujarat Prevention of Anti-Social Activities Act, 1985. The Court held that:
“The material on record are not sufficient for holding that the alleged activities of the detenue have either affected adversely or are likely to affect adversely the maintenance of public order.”
The Division Bench of Justices Ilesh J. Vora and P.M. Raval held that four prohibition cases alone do not justify preventive detention unless there is an adverse effect on public order.
Facts
The petitioner was preventively detained by order dated 23.04.2025 passed by the District Magistrate, Dahod under the 1985 Act. The detention was based on four prohibition cases under Sections 65(E), 116(B), 98(2), and 81 of the Prohibition Act. It was contended that the petitioner’s bootlegging activities posed a threat to public order.
The petitioner challenged the order before the High Court, arguing that the criminal acts imputed to him were at best law and order issues, not public order concerns.
Issues
- Whether the petitioner’s alleged conduct met the legal threshold of disturbing public order under the Gujarat PASA Act.
- Whether the detaining authority’s subjective satisfaction was valid and lawful.
- Whether preventive detention was warranted on the basis of four prohibition cases.
Petitioner’s Arguments
The petitioner argued that the alleged activities pertained only to breaches of law and order and did not rise to the level of affecting “public order” as defined under Section 3(4) of the 1985 Act. It was contended that all four offences were minor, he had already secured bail in all of them, and there was no evidence of community-wide impact or disruption to public peace. Thus, preventive detention was unwarranted.
Respondent’s Arguments
The State contended that the petitioner was a habitual bootlegger whose continued presence in the community could disturb public order. It was argued that based on his antecedents and pattern of repeat offences under the Prohibition Act, the District Magistrate had reasonably exercised powers under the 1985 Act to prevent further harm.
Analysis of the Law
The Court evaluated the difference between “law and order” and “public order” under the 1985 Act. It held that not every infraction of law amounts to a breach of public order. For preventive detention to be justified, there must be compelling evidence that the acts disturb the even tempo of community life.
Precedent Analysis
The Court relied heavily on:
- Piyush Kantilal Mehta v. Commissioner of Police, 1989 Supp (1) SCC 322
- Preventive detention cannot be sustained merely on the basis of prohibition offences unless there is an impact on public order.
- Pushkar Mukherjee v. State of West Bengal, (1969) 1 SCC 10
- Drew a distinction between “law and order” (localized disturbances) and “public order” (community-wide disruptions), holding that not every crime justifies preventive detention.
The High Court quoted extensively from these judgments, reiterating that public order must be affected for the PASA to apply.
Court’s Reasoning
The Court found that:
- There was no material to show that the petitioner’s alleged activities caused panic, terror, or insecurity among the public.
- All four FIRs were routine prohibition offences with no evidence of community-wide impact.
- The detaining authority failed to demonstrate how public order was endangered.
Accordingly, the Court held that the detention order lacked legal validity.
Conclusion
The Gujarat High Court allowed the petition and quashed the detention order dated 23.04.2025. The Court directed the petitioner to be released immediately unless required in any other case.
“The subjective satisfaction arrived at by the detaining authority cannot be said to be legal, valid and in accordance with law.”
Implications
This judgment reinforces the principle that preventive detention under PASA cannot be grounded solely on prohibition offences unless they disturb public order. It affirms that mere repetition of criminal acts, even if habitual, does not justify detention without demonstrable public impact.
Summary of Referred Cases
- Piyush Kantilal Mehta v. Commissioner of Police, 1989 Supp (1) SCC 322
- Preventive detention based on prohibition cases held invalid as they did not affect public order.
- Pushkar Mukherjee v. State of West Bengal, (1969) 1 SCC 10
- Clearly distinguished between law and order and public order, holding that only the latter justifies preventive detention.
