The civil application was filed against the order of detention dated 21.9.2020 passed by detaining authority herein respondent under section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985. Detaining the detenu defined under section 2(c) of this Act in the case of Jilabhai S/O Khodabhai Kamabhai Jadav v. State of Gujarat C/SCA/13792/2020.
The counsel submitted before this court that detenu detained by the competent authority via detention order deserved to be set aside and quashed on the ground of registration of two offense under Sections 307, 326, 387, 341, 403, 504, 506(2) 120-B and 114 of the IPC, such offense cannot be considered for an exercise of power under section 2(c) of this Act. Moreover, such illegal activity alleged to be executed or likely to be carried out cannot have any rational connection whatsoever with the maintenance of public order or to a greater extent for breach of law and order. Except for, registration of FIR, witness statement, and Panchnama, there is no other relevant material on record alleging anti social activity of the detenu for breach of public order. It is inappropriate to state that the activity and conduct of the detenu affected the decent standard of living in the society, threatened social order, caused inconvenience in social conduct of the general public, or disturbing tranquility of the public by making it difficult to govern society by rule of law.
The counsel pleaded before this court that the detention order passed by the detention authority was well settled with the backing of sufficient material and evidence produced during the process of investigation. Such materials were also provided to the petitioner concerning the principle of natural justice mentioned that petitioner habitually indulged in such illegal activity of anti-social nature and consequences defined under section 2(c) of the Act. Therefore, detention orders needed to be upheld and detention authority had rightly passed the desired order.
The court observed the case of Dr. Ram Manohar Lohia v. State of Bihar & Others, (1966) 1 SCR 709, which clearly established the gravity of terms concerning the number of people it covered. The “public order” referred to a disorder of less gravity than those affecting “security of the state”. “Law and order” referred to disorders of less gravity than those affecting “public order”. Law and order is the largest circle; public order next circle and security of the state is the small circle. Thus, an act may affect law and order but not public order.
Further, the court took the reference of Pushker Mukherjee v/s. State of West Bengal AIR 1970 SC 852 in which distinction between law & order and public order has been laid down in the verdict observing the fact that injury or assault to a particular person does not go against public disorder. When persons quarrel inside the house, such incidents could cause disorder but not a public disorder but persons cannot be further detained on the ground of disturbing public order. The violation of law affecting order cannot be considered public order if it hampers the community or the public at large. The classification of public disorder was further subdivided into two categories mainly serious and aggravated disorder causing directly affected community or public at the large and minor breach of peace and harmony of regional significance injuring specific individuals of personal interest. The mere disturbance affecting public order comes within the preview of this Act.
The court moves ahead with such distinction with an elaborated phrase in the case of Dharban Kumar Sharma v. State of T.N, AIR 2003 SC 971in which the court held that the question of the distinction between breach of law and order and disturbance to public order depends upon degree and extent of its impact upon the society. In the case of Siddharth @ Sindhu Laxmanbhai Thorat v/s. District Magistrate, Navsari, in Letters Patent Appeal No.1020 of 2019, this court held that though power is conferred under section 3(1) of the Act and ordinary law of IPC is sufficient and detention order cannot be passed as a shortcut to exhaust such remedy. Moreover, for subjective satisfaction, the detention authority desired to undertake an objective assessment of the material.
The proper understanding of what meant by public order was given in the case of Arun Ghosh v/s State of West Bengal (1970) 1 SCC 98, which defines public order as even tempo of the life of the community while taking the whole country as a whole. Disturbance of public order is the general disturbance of the society at large and only the degree and extent of impact upon the life of the community determine whether disturbance leads to the breach of law and order.
The court was of opinion that detaining authority has not established the illegal and anti-social activities of the detenu which affected or likely to affect the maintenance of public order. Further, there is no nexus between offense committed resulting in registration of FIR and detention order being passed by the competent authority. The subjective satisfaction of the detention authority cannot be said legal, valid, and by law as regards to offense alleged in FIR and the petitioner cannot be classified as detenu under section 2(c) of this Act unless the person alleged has threatened and cause a detrimental disturbance in the peace and tranquility of the society and thereby causing public disorder. However, there is also no evidence to prove that detenu acted in a manner that is harmful to society.
The competent authority has no relevant material on record for invoking power conferred under section 3(2) of this Act. Therefore, detention orders passed by respondent authority deserved to be set aside and quashed while the present petition was allowed for the same.
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